South Africa Judgment

Eastern Cape High Court, Port Elizabeth

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

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Professional case brief

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Source document

01

Holding and result

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.

02

Material facts

Parties

Omega Construction and Building

Plaintiff Counsel: Beyleveld SC

Khethiwe Dlodlo

Defendant Counsel: Williams

Admire Moyo

Defendant Counsel: Williams

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

Defendant Counsel: Williams

03

Procedural history

  1. Posture

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

04

Questions and positions

Legal issues

Party arguments

Applicant
The defendants argued that the Particulars of Claim did not disclose a cause of action against the first and second defendants. They contended that evidence of the alleged fraudulent actions should have been presented to the court, preferably through oral testimony, and that the claim was not for a liquidated amount. They further submitted that the default judgment should not have been granted, especially considering the procedural difficulties arising from the state of disaster and their lack of legal representation.
Respondent
The plaintiff maintained that the application for default judgment was properly supported by an affidavit from its Contract Director, Mr Richard Andrew Hutton. The plaintiff argued that the averments in the affidavit and the Particulars of Claim sufficiently disclosed a cause of action and established that the claim was for a liquidated amount. The plaintiff asserted that the requirements for default judgment were met and that the defendants failed to apply for the lifting of the bar or postponement, nor did they show good cause for any indulgence.

05

Court’s reasoning

  1. 01

    Uniform Rules of Court, Rule 31(2)(a)

    A default judgment may be granted where the defendant is barred from pleading and the plaintiff's claim is supported by sufficient evidence disclosing a cause of action and, where applicable, a liquidated amount.

  2. 02

    Uniform Rules of Court, Rule 27

    A party seeking to set aside or postpone a default judgment must apply for the lifting of the bar and demonstrate good cause for the indulgence sought.

  3. 03

    Uniform Rules of Court, Rule 31(2)(a)

    The court must be satisfied that the claim is for a liquidated amount or that sufficient evidence is presented to prove the claim.

06

Ratio, limits and disposition

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.

Obiter and limits

  • The court noted the impact of the state of disaster on the conduct of litigation and the potential prejudice to unrepresented parties.
  • The absence of an application for the lifting of the bar or postponement was highlighted as a procedural deficiency on the part of the defendants.

Court disposition

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

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

Source and reliance status

Eastern Cape High Court, Port Elizabeth

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Judgment text

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Source document

Eastern Cape High Court, Port Elizabeth

Judgment

[2021] ZAECPEHC 4

IN

THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE LOCAL DIVISION, PORT ELIZABETH)

Case No: 100/2020

In the matter between:

OMEGA

CONSTRUCTION AND BUILDING

Plaintiff / Respondent

And

KHETHIWE

DLODLO

First Defendant / Applicant

ADMIRE

MOYO

Second

Defendant / Applicant

BHC

BUILT ENVIRONMENT PROFFESSIONALS

(PTY)

LTD

(REGISTRATION NUMBER 2013/188545/07)

Third Defendant / Applicant

JUDGMENT – APPLICATION FOR LEAVE TO APPEAL

BESHE J:

[1] This is an application for leave to appeal against a default judgment I granted on the 5 November 2020 against the applicants 1 to 3. Defendants in the action. The parties will be referred to as they are in the main action. The defendants having been ipso facto barred from filing their plea, the plaintiff applied for default judgment.

[2] On the day appointed for the hearing of the application for default judgment, first and second defendants without a legal representative and sought to argue based on the merits of the case that the default judgment application should not be granted. This, without applying for either the lifting of or a postponement of the matter. In which case they would have been required to show good cause for the indulgence they seek.

[3] It is now submitted that judgment should not have been granted inter alia because:

The Particulars of Claim do not disclose a cause of action in respect of first and second defendants. Evidence should have been placed before court to show / prove the fraudulent actions complained of. Also on the basis that the claim was not for a liquidated amount.

The suggestion here being that such evidence should have been viva voce evidence.

[4] The application for default judgment was supported by an affidavit deposed to by the Contract Director of the plaintiff: Mr Richard Andrew Hutton.

[5] Even though I was satisfied based on the averments made in the said affidavit and the Particulars of Claim that a cause of action had been disclosed, and that the claim was for a liquidated amount, I am unable to say that another court may not find otherwise and that therefore the appeal has a reasonable prospects of success. This is also in view of the fact that the issue of the difficulties brought about by the declaration by the State President of the state of disaster during the conduct of this litigation having been caused, coupled with the fact that the defendants were not legally represented at the time of the granting of the default judgment.

[6] Accordingly, leave to appeal is granted to the full bench of this division. Costs to be costs in the appeal.

NG

BESHE

JUDGE

OF THE HIGH COURT

APPEARANCES

For the Plaintiff/Respondent : Adv: Adv: Beyleveld SC

Instructed by

: PAGDENS

ATTORNEYS

18 Castle Hill

Central

PORT

ELIZABETH

Ref: M Kemp/ME/ALP9/0001

Tel.: 041 – 502 7285

For the Defendants /Applicants : Adv: Williams

Instructed by

: SIYILA

ATTORNEYS

2 Salisbury Road

Mill Park

Ref: Pers / BHC/OOI

Tel.: 041 – 373 0736

Date Heard

: 22 January 2021

Date Reserved

: 22 January 2021

Date Delivered

: 26 January 2021

Source wording is retained. Consult the source document for its original formatting and pagination.

Authorities

Authorities used by the court

Cases, legislation, regulations, and constitutional provisions identified in the available record.

Uniform Rules of Court, Rule 31(2)(a)

Legislation

Legislation referenced in the available case record.

Uniform Rules of Court, Rule 27

Legislation

Legislation referenced in the available case record.

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