Van Der Burgh v Moosa and Another (37238/2014) [2016] ZAGPPHC 664 (29 July 2016)

Van Der Burgh v Moosa and Another (37238/2014) [2016] ZAGPPHC 664 (29 July 2016)

The court found that the respondents failed to disclose any bona fide defence under oath in their affidavits, as required in motion proceedings. The respondents' explanation for the delay in filing amended pages was inadequate, and their reliance on heads of argument to set out their defence was procedurally improper. The court held that condonation for the late filing of amended pages could not be granted in the absence of a proper affidavit setting out the defence. Consequently, the respondents' plea was struck out, and default judgment was granted in favour of the applicant, including rectification of the contract as pleaded.

Citation
[2016] ZAGPPHC 664
Parties
Applicant: Wayne Van Der Burgh; Respondent: Deborah Moosa; Respondent: New Order Investments 131 (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 July 2016
Case Number
37238/2014
Procedural Posture
Civil Application / Application to Strike Out Defence and for Default Judgment
Outcome
Application granted. Respondents' plea struck out. Default judgment granted in favour of applicant, including rectification of contract and costs.
Judges
N.P. Mali
Legal Topics
Striking Out of Defence, Condonation Application, Default Judgment, Rectification of Contract
Civil Procedure Commercial and Corporate Striking Out of Defence Condonation Application Default Judgment Rectification of Contract

Case Brief

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Parties

Wayne Van Der Burgh

Applicant

Deborah Moosa

Respondent

New Order Investments 131 (Pty) Ltd

Respondent

Procedural Posture

Civil Application / Application to Strike Out Defence and for Default Judgment

Legal Issues

  1. 1 Whether the respondents' plea should be struck out for failure to disclose a bona fide defence under oath.
  2. 2 Whether condonation for the late filing of amended pages should be granted.
  3. 3 Whether the applicant is entitled to default judgment and rectification of the contract.

Ratio Decidendi

The court found that the respondents failed to disclose any bona fide defence under oath in their affidavits, as required in motion proceedings. The respondents' explanation for the delay in filing amended pages was inadequate, and their reliance on heads of argument to set out their defence was procedurally improper. The court held that condonation for the late filing of amended pages could not be granted in the absence of a proper affidavit setting out the defence. Consequently, the respondents' plea was struck out, and default judgment was granted in favour of the applicant, including rectification of the contract as pleaded.

Court Disposition

Application granted. Respondents' plea struck out. Default judgment granted in favour of applicant, including rectification of contract and costs.

Orders

  • The respondents' plea is struck out.
  • The respondents are ordered to pay the costs of the application, jointly and severally, the one paying the other to be absolved.