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[2014] ZAGPJHC 389
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De Jager v Heyman (J31738/2012) [2014] ZAGPJHC 389 (24 October 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG LOCAL
DIVISION)
CASE NO: J31738/2012
DATE: 24 OCTOBER 2014
In the matter between:
DE JAGER, SANDRA
LILIAN
....................................
Applicant
And
HEYMAN, ALAN
CYRIL
.........................................
Respondent
JUDGEMENT
FRANCIS J
1. This is an application to declare
that the business relationship between the applicant who is a duly
admitted attorney and the
respondent, also a duly admitted attorney,
from August 2000 to be a partnership and that the conditions of the
verbal agreement
between the parties, as varied between them from
time to time, relating to their partnership is confirmed.
2. The exact nature of the relationship
between the parties is in dispute. The applicant contended that the
agreement entered was
that of a partnership whereas the respondent
contended that he was employed by the applicant as an independent
contractor. A dispute
arose between the parties about what the true
nature of the agreement was that the parties had concluded which
prompted the applicant
on 23 August 2012 to make an application to
this Court for the following relief:
“1. That the business
relationship existing between the parties from August 2000 is
declared to be a partnership and that
the conditions of the verbal
agreement
between the parties, as varied between
them from time to time, relating to their partnership is confirmed.
2. That the respondent provide the
applicant within a period of 30 (THIRTY) days from the date of the
court order with a detailed
list of all the De Jager – Du
Plessis files, the R200 files and Heyman files in his possession:
2.1 which have been finalized and
settled since 1 March 2012 to date of this order, and
2.2 In respect of all remaining files
reflected on such list not finalized, indicate the names of the
clients involved and the dates
arranged for trials of such matters
for the finalization thereof.
3. The parties thereafter debate the
account between themselves;
3.1 That the respondent pay to the
applicant whatever amount appears to be due to it upon debatement of
the account;
3.2 That the respondent pay the costs
of this application; and
3.3 That such further or alternative
relief be afforded to the applicant as this Honourable Court may deem
fit.”
3. The application was opposed by the
respondent. The matter was set down for a hearing before Hodes AJ on
10 June 2013. After
the application was argued before him, he made
the following order:
“1. No order is made in regards
to prayer 1. Prayer 2 granted, prayer 2.1 granted, prayer 2.2.
granted subject to be read
with prayer 3.1, that the debatement
applies only to files which were initiated in the offices of the
Applicant, and that proceeded
beyond the stage of the issuing of MVA
Form having being duly received by the Road Accident Fund or any or
other relevant applicable
entity. In regard to the matters initiated
before 28th February 2012 in terms of what is set out above.
Applicant has to bare
her share of the expenses in all matter
relevant even if unsuccessful. The debatement of the account has to
be held between the
parties.
2. Costs are reserved if the parties do
not resolve the issue after the lapse of 6 weeks from today, can
approach the Court again.”
4. The respondent was unhappy with the
order granted by Hodes AJ and filed an application for leave to
appeal on 2 July 2013 against
part of the judgment and all of
the orders given on the following
grounds:
“1. The Learned Judge erred in
finding and ordering that:
1.1 The Applicant is entitled to
receive an account from the Respondent;
1.2 The Respondent is obliged to
provide an account to the Applicant, which includes the files
conducted in the name of Heyman Attorneys;
1.3 The Respondent is to debate an
account with the applicant, which includes the files conducted in the
name of Heyman Attorneys;
1.4 The Applicant has made out a case
for the relief sought in her notice of motion; and/or
1.5 The Applicant has established the
elements entitling her to receive an account from the Respondent.
2. The above Honourable Court (sic) to
have found and ordered that:
2.1 The Applicant is not entitled to
receive an account from the Respondent;
2.2 The Respondent is not obliged to
provide and account to the Applicant, which includes the files
conducted in the name of Heyman
Attorneys;
2.3 The Respondent is not obliged to
debate an account with the Applicant, which includes the files
conducted in the name of Heyman
Attorneys;
2.4 The Applicant has not made out a
case for the relief sought in her notice of motion;
2.5 The Applicant has not established
the elements entitling her to receive an account from the Respondent;
2.6 The Applicant has failed to
establish the existence of any form of partnership as a result of her
failure to allege a common
object of making a profit;
2.7 That the relationship between the
Applicant and the Respondent was one of a sub-contractor;
2.8 The application ought to be decided
on the Respondent’s version; and/or
2.9 The Applicant’s application
is to be dismissed with costs.
3. The Learned Judge was misdirected in
his findings in finding that a sharing of fees alternatively sharing
of turnover was equivalent
to a profit sharing arrangement.
4. The Learned Judge erred in not
finding Heyman Attorneys to be a separate legal entity from the
entity alternatively the person
of the Applicant in which the
Applicant has no right, title or interest.”
5. The applicant filed a notice of
abandonment in terms of rule 41(2) of the Uniform Rules of this Court
on 20 September 2013.
In the said notice dated 4 September 2013 the
applicant stated that she was abandoning part of the order granted by
Hodes AJ on
10 June 2013 as follows:
“1. Save for the order with
reference to applicant’s prayer 1 the balance of the orders
referring to applicant’s
prayers 2 and 2.1, and 2.2 read with
3.1 granted as per numbered 1 of the order are abandoned by the
applicant.
2. The orders granted as per numbered
paragraph 2 of the order are to remain.
TAKE FURTHER NOTICE that the applicant
consents to payment of the respondent’s costs up to the time of
service of this notice
of abandonment excluding the costs of the
application which remains to be decided
upon in terms of numbered paragraph 2 of the order.”
6. The applicant re-enrolled her
application that came before Hodes AJ and sought prayer 1 of her
original notice for declaratory
relief. The respondent had contended
that since there was a material dispute of fact which the applicant
should have anticipated,
the application should be dismissed. In the
alternative the respondent denied that the agreement that was
concluded was that of
a partnership.
7. At the commencement of the
proceedings, I raised with counsel that it was my prima facie view
that the dispute could not be resolved
on the papers and that the
matter should be referred to trial on the issue of what the agreement
was that the parties had concluded.
Counsel for the applicant after
he had obtained instructions indicated that
the matter should be referred to trial.
Counsel for the respondent indicated that he will not have any
difficulty if the matter
was to be referred to trial but that there
would be no need to do so since, Hodes AJ has dealt with prayer 1 of
the Notice of Motion
and that the matter had become academic after
the applicant had abandoned the relief that was granted by Hodes AJ.
8. I allowed for the matter to be
argued and the sole issue was whether the relief sought by the
applicant had become academic.
The respondent submitted that in
deciding this question, I will have to interpret what the order that
was granted by Hodes AJ means.
9. The question that arises in this
matter is whether Hodes AJ has made any order in respect of prayer 1
of the notice of motion
which appears to have been the crux of the
relief that was sought by the applicant. The dispute centred around
whether the agreement
that was concluded between the applicant and
respondent was a partnership agreement or not. Many consequences
will flow once a
finding has been made that the agreement that was
concluded between the parties was a partnership. It is not limited
to prayers
2 and 3 of the notice of motion. This much was conceded
by the respondent’s counsel.
10. It was contended on behalf of the
applicant that Hodes AJ did not deal with the application for a
declarator. It was conceded
that the applicant had abandoned the
rest of the relief that was granted by Hodes AJ but importantly she
did not abandon the relief
sought about the declaratory. It was
contended by the respondent that Hodes
AJ dealt with the entire application
and that a ruling that ‘no order is made in regard to prayer 1’
was akin to a finding
that no order is made as far as costs are
concerned.
11. The respondent’s contentions
are not correct. Whilst I agree that sometimes when no order is made
as far as costs are
concerned, the refusal to make no such an rder
for costs will be spelled out in the judgement. The difficulty in
this case is
that no written judgement or reasons for the order made
was given by Hodes AJ. This Court is left to speculate why he made
no
such an order. It is clear that if he had made an order as far as
prayer 1 was concerned, that would have been a ground for leave
to
appeal on the part of the respondent. It was not.
12. The fact of the matter is that no
order was made in terms of prayer 1 of the notice of motion. This
much is clear from the
order. This much is also clear from the
respondent’s heads of arguments that were filed on 22 September
2014 a year after
Hodes AJ had made his order. The respondent stated
in his heads of arguments from paragraphs 1 to 8 that the applicant
had launched
the current proceedings during or on about August 2012
seeking declaratory and certain ancillary relief. The matter was
accordingly
set down and argued on 10 June 20103 upon which Hodes AJ
made an order granting all but prayer 1 (declaratory relief) in
favour
of the applicant. No order was made in respect of the
declaratory relief, which was sought to declare the business
relationship
between the parties to be that of a partnership, and the
parties were granted leave to approach the Honourable Court after 6
weeks
should they fail to resolve this issue. The respondent filed
an application for leave to appeal, upon which the applicant
abandoned
part of the order granted. All but the order relating to
prayer 1 (declaratory order) and costs were abandoned. The only
issue
to be determined at
the hearing of this matter is prayer 1
of the Notice of Motion. It is not necessary to repeat this.
13. Both parties therefore knew that
Hodes AJ did not deal with prayer 1 of the notice of motion. There
is nothing to interpret
about his failure to deal with prayer 1.
14. This brings me to the second
argument raised by the respondent. It was contended that since the
applicant had abandoned the
relief that was granted in terms of
prayers 2 and 3 which has to do with the debatement of the account,
the handing over of certain
files and the payment of the applicant’s
expenses, it has rendered the issue about the declaratory and in
particular 1 as
academic.
15. It is trite that this Court has a
discretion whether it should or should not grant a declaratory order.
The following dictum
appears in the matter of JT Publishing (Pty)
and Another vs Minister of Safety and Security and Others
1996 (12)
BCLR 1599
(CC) at paragraph 15:
“The reversal of the decision
reached in the Court below brings duly before us the claim for a
declaratory order which the
applicants wish us to grant on the
constitutional issues presented by them. That does not necessarily
mean, however, that we are
now bound to resolve those issues.
Whether we should say anything at all about them must be settled
first. I interpose that enquiry
because a declaratory order is a
discretionary remedy in the sense that the claim lodged by the an
interested
party for such an order does not in
itself oblige the Court handling the matter to respond to the
question which it poses, even
when that looks like being capable of a
ready answer. A corollary is the judicial policy governing the
discretion thus vested
in the Courts, a well established and
uniformly observed policy which directs them not to exercise it in
favour of deciding points
that are merely abstract, academic or
hypothetical ones.”
16. The relief that was sought by the
applicant in prayer 1 of the notice of motion, has not become
academic after she had abandoned
part of the relief that was granted
to her by Hodes AJ. I have already indicated that prayers 2 and 3 of
the notice of motion
are not the only consequences that would flow
from such a declaration. It therefore
follows that it can hardly be contended
that the relief sought for a declarator would render the matter
academic, abstract or hypothetical.
It remains a live issue that
will have to be determined. The applicant would not be able to seek
the relief that was granted
to her which she had abandoned.
17. Both parties are ad idem that
subject to what my findings were going to be on the issues that were
raised by the respondent
which I have now dealt with, that there is a
material dispute of fact that cannot be resolved on the papers and
that this matter
should be referred to trial. I intend to do so.
18. This matter stands to be referred
to trial and costs are to be reserved for determination by the trial
court.
19. In the circumstances I make the
following order:
19.1 The application is referred to
trial.
19.2 The notice of motion will stand as
a simple summons.
19.3 The notice of intention to oppose
shall stand as a notice of intention to defend.
19.4 The applicant must file her
declaration within 21 days from date of this order.
19.5 Thereafter the rules relating to
actions shall apply.
19.6 The costs of this application are
reserved for determination by the trial court.
FRANCIS J
HIGH COURT JUDGE
FOR APPLICANT : HB MARAIS SC
INSTRUCTED BY KOBUS BOSHOFF ATTORNEYS
FOR RESPONDENT : LJ MORISON SC WITH
L STEYN INSTRUCTED
BY ALLIS ATTORNEYS
DATE OF HEARING : 13 OCTOBER 2014
DATE OF JUDGMENT : 24 OCTOBER 2014