Barrisford Brent Petersen Law Incorporated and Another v Donald Robert Mitchell trading as Mitchell & Co (A194/2021) [2021] ZAWCHC 251 (3 December 2021)

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[2021] ZAWCHC 251
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Barrisford Brent Petersen Law Incorporated and Another v Donald Robert Mitchell trading as Mitchell & Co (A194/2021) [2021] ZAWCHC 251 (3 December 2021)

IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
CASE NO: A 194 / 2021
In the matter between:
BARRISFORD BRENT PETERSEN
LAW
First Appellant
INCORPORATED
BARRISFORD
BRENT
PETERSEN
Second Appellant
and
DONALD ROBERT
MITCHELL
Respondent
TRADING AS MITCHELL & CO
Coram:  Samela et Wille, JJ
Heard:  19
th
of November 2021
Delivered:  3
rd
of December 2021
JUDGMENT
WILLE,
J:
(Samela,
J concurring)
INTRODUCTION
[1]
This is a civil appeal from the lower court.  For the purposes
of convenience and clarity,
the parties will be referred to as they
were cited in the proceedings in the lower court.  The
defendants seek to set aside
the order of the judicial officer in the
lower court in terms of which the lower court refused to rescind a
judgment granted by default
against the defendants, jointly and
severally, the one paying the other to be absolved.  This for
alleged professional fees
owed by the defendants to the plaintiff.
[2]
The first defendant is a law firm and the second defendant is a
practising attorney. The plaintiff
is also a practising attorney.
The grounds of appeal as set out in the defendant's notice of appeal
are as follows, namely:
that the lower court erred in finding
that the application to rescind the judgment was piloted under the
incorrect section of the
Act
[1]
,
read with the incorrect applicable rule
[2]
:
that the plaintiff’s claim had in any event prescribed in law due
to the effluxion of time:  that the plaintiff had
been
incorrectly and defectively cited and that the defendants further
enjoyed a
bona
fide
defence to
the plaintiff’s claims for professional fees as claimed by him
against them.
THE
RELEVANT BACKGROUND FACTS
[3]
During September 2020
[3]
,
the plaintiff issued out a summons in connection with a joint and
several claim against the defendants for professional fees due
owing
and payable, together with interest and costs.  Upon receipt of
the summons, the second defendant sent an email to one
of the first
defendants professional employees
[4]
,
with the specific instruction to enter an appearance to defend the
action on behalf of the defendants.
[4]
At this time, the said professional employee, who was and is a
practising attorney was working
from home because of the pandemic.
[5]
Some further issues
were encountered during this time, due to the alleged partial
destruction of one of the first defendant's branch
offices.
According to the said employee, he only physically returned to
this branch office on the 5
th
of October 2020.
[5]
It is indicated that because of these peculiar circumstances no
office file was opened and
the matter was accordingly left wholly
unattended.  The second defendant assumed that the matter had
been defended.  Thereafter,
on the 4
th
of February
2021, the second defendant contacted his delegated employee to inform
him that the sheriff of the court was in the process
of attaching
some movable property, at his residence. This, because a judgment had
been granted against the defendants, jointly and
severally, by
default.  No doubt, this triggered the application for the
rescission of the default judgment which was launched
on the 8
th
of February 2021.
THE
JUDGMENT IN THE LOWER COURT
[6]
The judicial officer in the lower court found,
inter alia
,
that the defendants erroneously elected to follow the incorrect
procedure, regrettably  by 'limiting' themselves to the
provisions
of section 36(1)(b) of the Act, read with rule 49 (8) of
the court rules.  This, is but one of the reasons why the
application
was refused in the lower court.
[7]
Further, the lower court went on to reason that the defendants failed
to convince the court
a quo
that they had a reasonable
plausible explanation for their default by not launching their
application for the rescission of the judgment
timeously and, in
terms of the court rules.  This because the rescission
application was only chartered on the 8th February
2021.  The
judgment by default having been granted as early as the 26
th
of October 2020.
[8]
Finally, the court
a
quo
held that
the defendants had failed to convince the court that their attorney
was unable to properly and timeously file an appearance
to defend
with the clerk of the court.  This, despite the fact that the
said attorney was working from home during the pandemic.
The
judicial officer in the court
a
quo
also found
that the defendants did not exhibit the required ‘good cause’ to
rescind the judgment and was also not satisfied that
that there was
‘good reason’ to rescind the default judgment.
[6]
THE
TWO ‘APPLICATIONS’ FOR CONDONATION
[9]
As alluded to earlier the first defendant is a law firm and the
second defendant is an attorney.
The plaintiff is also an
attorney.  None of the parties seemingly had an overwhelming or
vigorous desire to follow the court
rules and the practice directives
of this court.
[10]
None of the parties filed their respective ‘Heads of Argument’ in
accordance with the court rules,
read with the applicable practice
notes and a plethora of excuses were advanced.  All concerned
could have done much better
and I expected a higher degree of
professionalism from all the parties.  I was disappointed to say
the least.
[11]
Because of this tardiness a further postponement would have merely
delayed the hearing of this appeal
unnecessarily.  Accordingly
the respective condonation applications for the late filing of the
respective ‘Heads of Argument’
were granted.  The matter was
initially due to have been heard on the 19
th
of November
2021, but due to the difficulties referenced above, the following
order was granted on the 19
th
of November 2021, namely:
1.
That
the appeal proceedings are postponed sine die.
2.
That
the appellants’ counsel and the respondent’s counsel are to
arrange for an alternative future date for the hearing of this
appeal
(on a date and time suitable to Judge Samela and Judge Wille).
3.
That
alternatively, upon further consideration of the papers, including
the respondent’s condonation application and Heads of Argument,
it
may be directed by the court that the appeal may be dispensed with in
accordance with section 19(a) of Act 10 of 2013.
4.
That
the wasted costs of an incidental to the appeal, including the costs
of and incidental to the application for condonation, shall
stand
over for later determination.
[12]
Having thereafter granted the condonation applications and having
perused the respondent’s further
papers, it was ruled that the
appeal would be dispensed with on the papers in terms of
section 19(a) of Act 10
of 2013.
THE
PLAINTIFF’S CLAIM AGAINST THE DEFENDANTS
[13]
As mentioned, the plaintiff is an attorney.  He carries on
business in Gauteng.  The first
defendant is a law firm and the
second defendant is a director of the first defendant. The defendants
carry on business in the Western
Cape.  Historically, the
plaintiff had established and maintained a good legal working
relationship with a particular corporate
client
[7]
,
this in order to be of service to them in connection with specialized
commercial work.
[14]
In terms of a prior agreement struck between the plaintiff and the
defendants, the defendants agreed
to pay to the plaintiff an amount
equal to two-thirds of any professional fees levied against this
corporate client, for the specialized
commercial work performed by
the plaintiff for the corporate client.  At the time, the
plaintiff worked as a consultant to the
first defendant.
[15]
In terms of this prior agreement, the plaintiff would periodically
provide the first defendant with his
time-sheets and schedules for
this specialized work performed for the corporate client, whereupon
the first defendant would thereafter
render an invoice to the
corporate client.  During September 2017, the first defendant
informed the plaintiff that it would
be unable to effect payment to
the plaintiff of his aliquot share of paid fees due to him, this
despite the first defendant having
received payment from the
corporate client for these specialized legal services rendered.
[16]
Solely as a result of the non-payment of the fees to the plaintiff by
the defendants, the plaintiff terminated
his agreement and
contractual relationship with the defendants.  The plaintiff
thereafter instituted action against the defendants
for two separate
claims of R114 509,88 and R32 117, 20 respectively.  This,
coupled with a claim for interest on these amounts,
together with
costs.
THE
DEFENDANTS’ CASE
[17]
In the founding affidavit in support of the application for
rescission of judgment, the deponent thereto
avers that he is an
attorney employed by the first defendant.  He goes on to say
that he is duly authorized to represent the
defendants.  Nothing
more and nothing less is advanced in this connection.  Moreover,
he makes the point that in so far
as ‘condonation’ may be
necessary, the defendants seek condonation for the late filing of
their application for rescission of
the judgment because, neither the
application for default judgment, nor the order that was granted
pursuant thereto, were served
on them as the defendants.  The
reasoning on this score is hard to follow.
[18]
What the deponent does say is that the first time that the defendants
became aware of the fact that a
default judgment had been granted
against them, was only when the sheriff executed the warrant of
attachment at the residence of
the second defendant.  The
defendants do not in any manner deal with the provisions of rule
49(2).  This rule indicates
a deeming provision, establishing an
onus on the defendants as far as the time period for the launching of
the rescission application
is concerned.  This is not dealt with
by the defendants.
[19]
Most significantly, the deponent further records that the second
defendant was under the impression that
a notice of intention of
defend the action had been filed.  Moreover, he emphasises that
no further correspondence was received
during the period between the
27
th
of September 2020 and the 4th of February 2021.
[20]
This in itself begs the question as to what the second defendant and
his employee who was entrusted with
the matter, did about this matter
for over (4) months.  It is  suggested that in the
circumstances, the defendants' conduct
was neither indolent nor
dilatory.  I must disagree.  Finally, he takes the position
that the default judgment was obtained
by fraud or mistake and
accordingly that the provisions of rule 49(8) find application.
Again, I disagree.
DISCUSSION
[21]
The shields to the claims by the plaintiff raised by the defendants
bear scrutiny.  The first of
these is a highly technical defence
and may be dealt with swiftly.  The defendants advance that the
plaintiff has been incorrectly
and defectively cited.  This,
because the plaintiff was cited in his personal capacity but
‘trading’ as Mitchell and Co.
The defendants for this
argument, rely on the written agreement which refers to one of
contracting parties as ‘Robert Mitchell’
Attorneys.  The
defendants allege that no such entity
[8]
is registered with the
Legal Practice Counsel.
[9]
This, absent any
material from the LPC in support of these allegations.  This is
euthanized by the plaintiff in reply.
[22]
The second defence is that of a special plea of prescription due to
the effluxion of time.  The
defendants advance that certain of
the amounts became due and payable prior to the conclusion of the
first defendant's agreement
on the 1st of February 2017.  This
shield must of necessity also be considered in the correct context
taking into account that
the defendants made a payment ‘on account’
which clearly interrupted the running of any prescription.
[23]
However, this shield also does not take into account that the
plaintiff pleads and avers that an agreement
was struck with the
defendants already in 2016.
[10]
In the plaintiff’s
affidavit, the plaintiff explains that he was previously for many
years, a consultant to a different discrete
law company.
[24]
He resigned from this latter company in 2014 when this subject firm
was sold to the second defendant.
Thereafter, with effect from
March 2015, he once again was employed as a consultant to deal
specifically with the commercial
work of the corporate client.
Subsequently, the first defendant submitted a tender to the
corporate client for its specialized
commercial work.
[11]
[25]
This was precisely when the plaintiff and the defendants concluded
their partly oral and partly written
agreement which is confirmed in
their respective email communications.  The plaintiff only
became aware during August and September
2017, that the defendants
were withholding information and payments from him in connection with
the work he had performed for this
corporate client, as previously
agreed.
[26]
As a consequence, the plaintiff made enquiries with the legal advisor
of the corporate client, whom confirmed
to him that at least, portion
of the fees due to him, had already been paid to the first defendant.
This enquiry no doubt prompted
the first defendant to make a
payment on account to the plaintiff on the 25th of September
2017.
[12]
[27]
Moreover, because of the peculiar nature of the professional fee
agreement between the parties, it is
clearly evident from the cause
of action that the plaintiff completed the professional work in
2017.  The defendants did not
put up any evidentiary material or
file any confirmatory affidavits in support of their case.
Accordingly, the judicial officer
in the lower court cannot be
faulted for drawing an adverse inference on this score.
[28]
The plaintiff takes the following position in connection with the
defences raised by the defendants,
namely:  that the plaintiff
indicates that a prudent attorney would have followed up as to what
had transpired during the (4)
month intervening period after the
summons was served:  that the summons was issued out in his
personal capacity and that the
rules
[13]
clearly cater for the
position that any person carrying on business under a name or style
other than in his own name, may indeed sue
or be sued in that name or
style as if it were a firm name.  The plaintiff attached his
fidelity fund certificates in support
of these allegations.
[29]
Most interestingly, the defendants seem to place some weight on the
fact that the plaintiff did not give
them notice of the application
for default judgment and the application for a warrant of execution.
Reliance on this is totally
misplaced.  In my view, the
defendants did not have any defences whatsoever to the claims
advanced by the plaintiff and did
not exhibit the required ‘good
cause’ to rescind the judgment.  Besides, there was no good
reason to rescind the default
judgment.  I say this also because
the object of rescinding a judgment is to restore an opportunity to
litigate a real dispute.
[14]
[30]
Further, the judgment was not erroneously granted and was not tainted
by any fraud, mistake or error.
Patently, there was no mistake
common to both parties. Further, in any event, there was no causative
link between the alleged
mistake and the grant of the order by
default.
[15]
In addition, the judgment
was not granted by any sort of fraud.
[31]
What we are left with in essence is a application for rescission of
judgment in accordance with rule
49 (1), (2) and (3).  As a
matter of logic, a case for condonation must be made out as the first
hurdle to cross.
[16]
The defendants also face
the second hurdle of the provision in the rules that they were
‘deemed’ to have knowledge of the default
judgment within (10)
days of the granting of the order.  No reasonable and plausible
explanation has been given for the (4)
month delay that occurred in
this case.
[17]
[32]
In my view, taking into account the circumstances of this case, with
specific reference to the attempts
made by the plaintiff to obtain
the legitimate amounts owed to him, as compared to the inaction on
behalf of the defendants, the
judicial officer in the lower court
correctly refused to rescind the judgment.
[18]
No real plausible or
reasonable explanation has been preferred by the defendants as to why
nothing was done about this matter for
a period of approximately (4)
months.
[33]
In all the circumstances of the matter, I hold the view that there is
accordingly no room to interfere
with the judgment of the lower court
on appeal.  In the result, I propose an order in the following
terms, namely:
1.
That
the appeal is dismissed.
2.   That the defendants
(the appellants), be ordered to pay the costs of and incidental to
this appeal (jointly and severally),
the one paying the other to be
absolved, on the scale as between party and party, as taxed or
agreed.
WILLE, J
I agree,
and it is so ordered:
SAMELA. J
[1]
The
Magistrates’ Courts Act 32 of 1944
.
[2]
The
Magistrates’ Courts Rules (which came into effect from the 15
th
of October 2010).
[3]
On the
25
th
of September 2020.
[4]
Mr
Ashworth.
[5]
The
Covid 19 pandemic.
[6]
Rule 49
(1).
[7]
‘
Engen’
[8]
Donald
Robert Mitchell trading as Mitchell and Co
[9]
The ‘LPC’
[10]
Paragraph
6 of the particulars of claim.
[11]
During
2016.
[12]
This in
the amount of R 20 000,00.
[13]
The
provisions of rule 54 (4).
[14]
Saphula
v Nedcor Bank
1999
(2) SA 76
(W) at 79B
[15]
Tshivhase
Royal Council v Tshivhase
[1992] ZASCA 185
;
1992
(4) SA 852
(A) at 386 A-C
[16]
Wright
v Westelike Provinsie Kelders
Bpk
2001 (4) SA 1165
(C) at 1174 F-G
[17]
Ozen
Wholesalers (Pty) Ltd v Silber
1953 (4) 697 (T)
[18]
Cavalinias
v Claude Neon Lights SA Ltd
1965
(2) SA 649
(T) at 652