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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH)     

                                                                                     

                                                        Case No: 100/2020

In the matter between:                                                   

 

OMEGA CONSTRUCTION AND BUILDING                  Plaintiff / Respondent

And

 

KHETHIWE DLODLO                                                       First Defendant / Applicant

 

ADMIRE MOYO                                                                  Second Defendant / Applicant

 

BHC BUILT ENVIRONMENT PROFFESSIONALS

(PTY) LTD

(REGISTRATION NUMBER 2013/188545/07)                  Third Defendant / Applicant

 

JUDGMENT – APPLICATION FOR LEAVE TO APPEAL

 

BESHE J:

[1]      This is an application for leave to appeal against a default judgment I granted on the 5 November 2020 against the applicants 1 to 3. Defendants in the action. The parties will be referred to as they are in the main action. The defendants having been ipso facto barred from filing their plea, the plaintiff applied for default judgment.

[2]      On the day appointed for the hearing of the application for default judgment, first and second defendants without a legal representative and sought to argue based on the merits of the case that the default judgment application should not be granted. This, without applying for either the lifting of or a postponement of the matter. In which case they would have been required to show good cause for the indulgence they seek.

[3]      It is now submitted that judgment should not have been granted inter alia because:

The Particulars of Claim do not disclose a cause of action in respect of first and second defendants. Evidence should have been placed before court to show / prove the fraudulent actions complained of. Also on the basis that the claim was not for a liquidated amount.   

The suggestion here being that such evidence should have been viva voce evidence.

[4]      The application for default judgment was supported by an affidavit deposed to by the Contract Director of the plaintiff: Mr Richard Andrew Hutton.

[5]      Even though I was satisfied based on the averments made in the said affidavit and the Particulars of Claim that a cause of action had been disclosed, and that the claim was for a liquidated amount, I am unable to say that another court may not find otherwise and that therefore the appeal has a reasonable prospects of success. This is also in view of the fact that the issue of the difficulties brought about by the declaration by the State President of the state of disaster during the conduct of this litigation having been caused, coupled with the fact that the defendants were not legally represented at the time of the granting of the default judgment.

[6]     Accordingly, leave to appeal is granted to the full bench of this division. Costs to be costs in the appeal.

 

NG BESHE

JUDGE OF THE HIGH COURT

 

 

 

 

 

 

 

 

APPEARANCES

 

For the Plaintiff/Respondent                  :           Adv: Adv: Beyleveld SC

Instructed by                                          :           PAGDENS ATTORNEYS   

                                                                      18 Castle Hill

                                                                    Central

                                                                    PORT ELIZABETH

                                                                    Ref: M Kemp/ME/ALP9/0001

                                                                    Tel.: 041 – 502 7285

 

For the Defendants /Applicants             :         Adv: Williams

Instructed by                                        :           SIYILA ATTORNEYS

                                                                    2 Salisbury Road  

                                                                    Mill Park

PORT ELIZABETH

                                                                    Ref: Pers / BHC/OOI

                                                                    Tel.: 041 – 373 0736

 

Date Heard                                           :           22 January 2021

Date Reserved                                      :           22 January 2021

Date Delivered                                     :           26 January 2021  

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