Omega Construction and Building v Dlodlo and Others (100/2020) [2021] ZAECPEHC 4 (21 January 2021)

Omega Construction and Building v Dlodlo and Others (100/2020) [2021] ZAECPEHC 4 (21 January 2021)

The court found that, although it was satisfied on the evidence presented in the affidavit and the Particulars of Claim that a cause of action was disclosed and the claim was for a liquidated amount, it could not exclude the possibility that another court may reach a different conclusion. This was particularly relevant given the procedural difficulties caused by the declaration of the state of disaster and the fact that the defendants were unrepresented at the time the default judgment was granted. Accordingly, the court held that there were reasonable prospects of success on appeal and granted leave to appeal to the full bench of the division.

Citation
[2021] ZAECPEHC 4
Parties
Plaintiff: Omega Construction and Building; Defendant: Khethiwe Dlodlo; Defendant: Admire Moyo; Defendant: BHC Built Environment Professionals (Pty) Ltd (Registration Number 2013/188545/07)
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
21 January 2021
Case Number
100/2020
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Default Judgment
Outcome
Leave to appeal is granted to the full bench of the division. Costs to be costs in the appeal.
Judges
Beshe
Legal Topics
Default Judgment, Leave to Appeal, Cause of Action, Liquidated Claim, State of Disaster Effects
Civil Procedure Default Judgment Leave to Appeal Cause of Action Liquidated Claim State of Disaster Effects

Case Brief

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Parties

Omega Construction and Building

Plaintiff

Khethiwe Dlodlo

Defendant

Admire Moyo

Defendant

BHC Built Environment Professionals (Pty) Ltd (Registration Number 2013/188545/07)

Defendant

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Default Judgment

Legal Issues

  1. 1 Whether the default judgment was properly granted against the defendants.
  2. 2 Whether the Particulars of Claim disclosed a cause of action against the first and second defendants.
  3. 3 Whether evidence of fraudulent actions was required to be presented viva voce.

Ratio Decidendi

The court found that, although it was satisfied on the evidence presented in the affidavit and the Particulars of Claim that a cause of action was disclosed and the claim was for a liquidated amount, it could not exclude the possibility that another court may reach a different conclusion. This was particularly relevant given the procedural difficulties caused by the declaration of the state of disaster and the fact that the defendants were unrepresented at the time the default judgment was granted. Accordingly, the court held that there were reasonable prospects of success on appeal and granted leave to appeal to the full bench of the division.

Court Disposition

Leave to appeal is granted to the full bench of the division. Costs to be costs in the appeal.

Orders

  • Leave to appeal is granted to the full bench of the Eastern Cape High Court, Port Elizabeth.
  • Costs to be costs in the appeal.