Malange v Wanga Engineering and Construction Services CC (16427/22) [2023] ZAGPJHC 1292 (13 November 2023)

Malange v Wanga Engineering and Construction Services CC (16427/22) [2023] ZAGPJHC 1292 (13 November 2023)

The application for leave to appeal is dismissed because none of the grounds advanced by the respondent have reasonable prospects of success. The respondent did not object to jurisdiction on the basis of the arbitration clause, thereby waiving that right. The alleged disputes of fact were immaterial and did not...

Source-derived case information.

Citation
[2023] ZAGPJHC 1292
Parties
Applicant: Azwindini Zelda Malange; Respondent: Wanga Engineering and Construction Services CC
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 November 2023
Case Number
16427/22
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Merits Judgment
Outcome
Application for leave to appeal dismissed with costs.
Judges
A Friedman
Legal Topics
Leave to Appeal, Arbitration Clause, Set Off, Building Contract, Costs Order
Civil Procedure Commercial and Corporate Leave to Appeal Arbitration Clause Set Off Building Contract Costs Order

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Summary, issues, holding and outcome

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Parties

Azwindini Zelda Malange

Applicant

Wanga Engineering and Construction Services CC

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Merits Judgment

Legal Issues

  1. 1 Whether the court erred in not raising the arbitration clause mero motu and declining jurisdiction.
  2. 2 Whether the respondent raised a recognisable defence to the applicant's claim, specifically poor workmanship.
  3. 3 Whether the respondent denied liability for the outstanding payment of R307 044.50.

Ratio Decidendi

The application for leave to appeal is dismissed because none of the grounds advanced by the respondent have reasonable prospects of success. The respondent did not object to jurisdiction on the basis of the arbitration clause, thereby waiving that right. The alleged disputes of fact were immaterial and did not constitute a defence to the applicant's claim. The respondent did not deny liability for the outstanding payment, but rather sought to justify non-payment, which does not create a genuine dispute. Set-off was excluded by the terms of the building contract and was not applicable as both debts were not liquidated. The application for leave to appeal was wholly unsustainable, but the...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed.
  • The applicant in the application for leave to appeal (respondent in the main application) is to pay the costs of the application for leave to appeal.