Magqabi v Metu (632/2019) [2021] ZAECELLC 16 (8 June 2021)
The court found that the application for leave to appeal was without merit. The findings in the original judgment were based on common cause facts: the matter had been fully argued before Toni AJ, who ruled on the merits of the applicant's opposition to the default judgment. The applicant was precluded from applying...
Source-derived case information.
- Citation
- [2021] ZAECELLC 16
- Parties
- Applicant: Pythagoros Vuyisile Magqabi; Respondent: Babalo Metu
- Court
- Eastern Cape High Court, East London Local Court
- Jurisdiction
- South Africa
- Case Number
- 632/2019
- Procedural Posture
- Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application
- Outcome
- Application for leave to appeal dismissed with costs.
- Judges
- J.E. Smith
- Legal Topics
- Rescission of Judgment, Leave to Appeal, Default Judgment, Bona Fide Defence
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Pythagoros Vuyisile Magqabi
Applicant
Babalo Metu
Respondent
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Dismissal of Rescission Application
Legal Issues
- 1 Whether the applicant has reasonable prospects of success on appeal against the dismissal of his rescission application.
- 2 Whether the applicant established good cause for rescission of the default judgment.
- 3 Whether the applicant presented a bona fide defence to the respondent's claim.
Ratio Decidendi
The court found that the application for leave to appeal was without merit. The findings in the original judgment were based on common cause facts: the matter had been fully argued before Toni AJ, who ruled on the merits of the applicant's opposition to the default judgment. The applicant was precluded from applying for rescission. Additionally, the applicant failed to provide an acceptable explanation for not filing a plea and did not establish a bona fide defence. The only defence raised was that the fees were exorbitant, but the applicant did not pursue the proper procedure for contesting the fees and did not respond to the respondent's assertion regarding the advice from the Legal...
Court Disposition
Application for leave to appeal dismissed with costs.
Orders
- The application for leave to appeal is dismissed.
- The applicant is ordered to pay the costs of the application.
Full Case Text
Judgment text and source record
35 paragraphs
IN THE HIGH COURT OF SOUTH AFRICA
(EAST LONDON CIRCUIT LOCAL DIVISION)
CASE NO: 632/2019
Matter heard on: 27/05/2021
Judgment delivered on: 08/06/2021
In the matter between:
PYTHAGOROS VUYISILE MAGQABI Applicant
and
BABALO METU Respondent
JUDGMENT: LEAVE TO APPEAL
SMITH J:
[1] The applicant applies for leave to appeal against my judgment, delivered on 23 March 2021. He contends that there are reasonable prospects that another court will find that I have erred in finding that he had failed to show good cause for the rescission of the default judgment granted by Toni AJ on.
[2] In my view the application is without any merit. My findings that the matter had been fully argued before Toni AJ, that he had ruled on the merits of the applicantâs opposition to the application for default judgment, and that the applicant was accordingly precluded from applying for rescission of the judgment, were based on common cause facts. In the event, I did not dismiss the application on this basis only.
[3] I also found that the applicant had failed to provide an acceptable explanation for his failure to file a plea in terms of the rules and to establish that he has a bona fide defence to the respondentâs claim.
[4] In argument before me, counsel for the applicant conceded that the only proffered defence which required consideration was his contention that: âthe fees were exorbitant so as to amount to an overreach and have been referred to the law society.
[5] In his answering affidavit, however, the respondent said that the applicant had been informed by the Legal Practise Council on 2 September 2019 that since the fees ârelate to a litigation matterâ, the proper course would be for him to refer the account for taxation. He has failed to do so and has taken no further action to contest the respondentâs fees.
[6] The applicant has not replied to this assertion and I was accordingly constrained to accept that the stated defence was not bona fide.
[7] I am accordingly of the mind that there are no reasonable prospects that another court will disagree with my finding that the said assertion does not constitute a bona fide defence to the respondentâs claim.
[8] In the result the application for leave to appeal is dismissed, with costs.
__________________________
J.E. SMITH
JUDGE OF THE HIGH COURT
COUNSEL FOR APPLICANT:
Adv. White
ATTORNEYS FOR APPLICANT: Magqabi Seth Zita Attorneys
9 St Georges Street
Southernwood
East London
COUNSEL FOR RESPONDENT:
Adv. E.M. Matanda
ATTORNEYS FOR RESPONDENT: M.P. Ncame Attorneys
Office No. 1
Mantis Business Centre
14 Byron Street
East London