Dlodlo and Others v Omega Construction and Building (Pty) Ltd (CA85/2022) [2022] ZAECMKHC 1 (1 March 2022)

Dlodlo and Others v Omega Construction and Building (Pty) Ltd (CA85/2022) [2022] ZAECMKHC 1 (1 March 2022)

The court held that the default judgment granted against the appellants was not appealable because it was not final in effect; it remained susceptible to rescission under rule 42(1)(a), rule 31(2), or the common law. The fact that the appellants were heard at the hearing did not alter the procedural reality that they were barred and their arguments and pleadings were excluded from consideration. The judgment was thus granted in their absence for the purposes of rescission. The court further criticized the practice of filing extensive affidavits in support of default judgment applications in action proceedings, noting this constitutes an abuse of process and unnecessarily inflates the...

Citation
[2022] ZAECMKHC 1
Parties
Appellant: Khethiwe Dlodlo; Appellant: Admire Moyo; Appellant: BHC Built Environment Professionals (Pty) Ltd; Respondent: Omega Construction and Building (Pty) Ltd
Court
Eastern Cape High Court, Makhanda
Jurisdiction
South Africa
Judgment Date
1 March 2022
Case Number
CA85/2022
Procedural Posture
Civil Appeal / Appeal Against Default Judgment
Outcome
Appeal struck from the roll with costs, excluding costs of the supplementary appeal record.
Judges
J W Eksteen, F Dawood, Z Z Matebese
Legal Topics
Default Judgment, Rescission of Judgment, Principal Building Agreement, Wilful Default, Lifting of Bar
Civil Procedure Commercial and Corporate Default Judgment Rescission of Judgment Principal Building Agreement Wilful Default Lifting of Bar

Case Brief

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Parties

Khethiwe Dlodlo

Appellant

Admire Moyo

Appellant

BHC Built Environment Professionals (Pty) Ltd

Appellant

Omega Construction and Building (Pty) Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal Against Default Judgment

Legal Issues

  1. 1 Is a default judgment granted in the absence of a plea, but after hearing the barred defendants, appealable?
  2. 2 Does the participation of barred defendants at the hearing preclude rescission under rule 31(2) or rule 42(1)(a)?
  3. 3 Was the process for obtaining default judgment properly followed under the Uniform Rules of Court?

Ratio Decidendi

The court held that the default judgment granted against the appellants was not appealable because it was not final in effect; it remained susceptible to rescission under rule 42(1)(a), rule 31(2), or the common law. The fact that the appellants were heard at the hearing did not alter the procedural reality that they were barred and their arguments and pleadings were excluded from consideration. The judgment was thus granted in their absence for the purposes of rescission. The court further criticized the practice of filing extensive affidavits in support of default judgment applications in action proceedings, noting this constitutes an abuse of process and unnecessarily inflates the...

Court Disposition

Appeal struck from the roll with costs, excluding costs of the supplementary appeal record.

Orders

  • The appeal is struck off the roll with costs.
  • Costs to exclude the costs of the supplementary appeal record delivered on 8 February 2022.