IN THE HIGH COURT OF SOUTH AFRICA

	(TRANSVAAL PROVINCIAL DIVISION)

NOT REPORTABLE	CASE NO.:  2160/08
In the matter between					DATE: 28/1/2009

PLUMBTASTIC PLUMBING CC	1st Applicant

IAN ROBERT SWINGTON	2nd Applicant		

and

CENTURION HOME CENTRE (PTY) LTD t.a
HOME CENTRE TIMBERCITY	Respondent

In re:

CENTURION HOME CENTRE (PTY) LTD t/a

HOME CENTRE	Plaintiff

And

PLUMBTASTIC PLUMBING CC	1st Defendant

IAN ROBERT SWINTON	2nd  Defendant

CORAM: EBERSOHN AJ

DATE HEARD:   20th August 2008

JUDGMENT HANDED DOWN ON: 28th January 2009

______________________________________________________________

	JUDGMENT 
________________________________________________________________

EBERSOHN AJ.
[1.]		This is an opposed application to set aside a default judgment.

[2.]	It appears that the plaintiff obtained a default judgment on the 14th February 2008 under Case no. 2160/2008 against both applicants.  This application then followed.

[3.]		As reason for the delay to timeously file an appearance to defend the second applicant stated that there was an agreement between the defendant’s attorney and the plaintiff’s attorney that the appearance to defend could be faxed, which was done.

[4.]		The plaintiff’s attorney disregarded the faxed appearance to defend, he denies the said agreement, and then applied for default judgment which the applicant regard as an irregularity.

[5.]		I find the reason advanced by the defendants as credible.

[6.]		The defence raised in the application is that the provisions of the National Credit Act, No 34 of 2005, apply and that the plaintiff did not comply with the peremptory provisions thereof.  This was denied by the plaintiff.

[7.]		It is not possible on the papers, to decide on the merits against the defendants regarding the defence raised and the matter will have to go on trail. 

[8.]		The judgment was written on the 28th of August 2008 but the file went missing and that  delayed the handing down of this judgement.

[9.]		I 	accordingly make the following order.:

1.	The default judgement granted against both defendants on the 14th February 2008 in case no. 2160/08 is set aside and leave is granted to the two defendants to defend the case on the merits.
2.	The costs of this application will be costs in case 2160/08.

______________________________
P.Z. EBERSOHN
ACTING JUDGE OF THE HIGH COURT

Counsel for 1st and 2nd Applicant				Adv. A.J. Swanepoel

1st and 2nd Applicant's attorneys	JAY attorneys
	Tel.:(012) 362 5702	    	

Counsel for the Respondent	Adv. L. Pretorius	

Respondents’ attorney	Mark W. Nixon
	Tel.:(012) 430 4303