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[2019] ZAGPJHC 28
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Nel v Ramwell t/a Ramwell Attorneys (18171/2018) [2019] ZAGPJHC 28 (1 March 2019)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
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SAFLII
Policy
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, JOHANNESBURG)
Case
No. 18171/2018
In the matter between:
SHARON
BEVERLY
NEL
Applicant
and
DALITA
RAMWELL T/A RAMWELL
ATTORNEYS
Respondent
Case
Summary
:
Practice – Motion proceedings – Disputed issues of
fact -
An
application for the hearing of oral evidence must, as a general rule,
be made
in
limine
,
and, unless the circumstances are exceptional, a court will not
permit an applicant to apply in the alternative for the matter
to be
referred to evidence should the main argument fail –
Application dismissed.
JUDGMENT
MEYER J
[1]
The applicant, Sharon Beverly Nel, sought payment from the
respondent, Ms Dalita Ramwell trading as Ramwell Attorneys, of an
amount of R711 063, plus interest and costs. Material
disputes of fact arose, which could not be resolved on the papers
alone. I, therefore, dismissed the application with costs.
These are my reasons.
[2]
Ms Ramwell is an experienced attorney and conveyancer by profession.
She has acted as Ms Nel’s attorney on a number
of occasions in
the past. During January 2017, Ms Nel sold a residential
immovable property, Unit 4, Riverlair, Douglasdale,
Extension 97 (the
property). On 20 February 2017, she mandated Ms Ramwell to
attend to the transfer and registration of the
property into the name
of the purchaser.
[3]
On 3 April 2017, when Ms Nel attended at Ms Ramwell’s offices
to sign the transfer documents, she advised Ms Ramwell that
she might
be using the proceeds of the sale of the property to buy a holiday
house jointly with her adult children and would probably
be sending
Ms Ramwell a change of banking details closer to the date of
registration. By email dated 15 May 2017, Ms Ramwell
notified
Ms Nel, that the transfer, cancellation of the existing mortgage bond
and registration of a new mortgage bond have ‘come
up on prep
in the Pretoria Deeds Registry on 12 May 2017.’ Ms Nel
responded by way of an email dated 18 May 2017, advising
Ms Ramwell
that she had changed bank accounts and that Ms Ramwell should confirm
the details of her new bank account before paying
over the proceeds
of the sale.
[4]
Ms Ramwell responded by way of an email dated 19 May 2017, which
reads:
‘
Hi Sharon,
Thank you for your email.
Please send me your new bank account
details.
We hoping the registration is effected
today, delay was that the bond attorneys were waiting for their
process to register.
Keep you informed shortly.’
In
response (and forming part of the same email chain), Ms Ramwell
received an email that appeared to her to be from Ms Nel, which
reads:
‘
Thank you for advising that
Riverlair was transferred.
Please see new FNB account that the
proceeds needs to be paid into:
Shandre Group (Pty) Ltd
FNB – Acc No. […]73
Branch Code: 250655
Thank you
Sharon Nel.’
Attached to this email
was a copy of an officially stamped FNB confirmation letter that
reflected the same account details.
[5]
On 22 May 2017, Ms Nel sent a WhatsApp message to Ms Ramwell, saying
‘Did you receive the message? Re Bank account’.
On the same day, Ms Ramwell’s secretary, Ms Desai, contacted Ms
Nel telephonically to confirm that Ms Ramwell had received
Ms Nel’s
new banking details as transmitted by her on 20 May 2017 and to
notify her that an electronic payment transfer of
the proceeds of the
sale would be made that evening. Ms Nel confirmed that she
indeed had sent new banking details and that
Ramwell Attorneys should
proceed to transfer the funds. Ms Ramwell also replied to Ms
Nel’s WhatsApp message and confirmed
that she had received her
new banking details.
[6]
On 22 May 2017, Ms Ramwell electronically transferred the net
proceeds of the sale in the sum of R711 063 from her Standard
Bank trust account to the First National Bank account with number
[…]73, as set out in the email dated 20 May 2017, that
she had
ostensibly received from Ms Nel. It subsequently transpired
that there had been a fraudulent interception and alteration
of the
email communications between Ms Nel and Ms Ramwell. Ms Nel sent
an email on 19 May 2017 (and not on 20 May 2017) from
the email
address
‘
Sharonbnel@gmail.com’
(and not Sharonnbnel@gmail.com) furnishing First National Bank
account details (account number […]25 and not […]73)
with an attached stamped letter from the bank confirming the bank
account details. That email seems to have been intercepted
and
the bank account details changed, both in the body of the email and
the attached letter from the bank. The fraudulent
email was
delivered to Ms Ramwell’s email inbox on 20 May 2017 from the
email address Sharonnbnel@gmail.com.
[7]
Ms Ramwell adopted the stance that she had discharged her obligations
in terms of the contract of mandate and that she was no
longer
indebted to Ms Nel, who, on the other hand, adopted the stance that
whether or not the payment was innocently or negligently
made to a
third party fraudster, it was not made to her and that Ms Ramwell
remained legally obliged to pay the net sale proceeds
of her
immovable property to her. Hence the present application.
[8]
Serious disputes of fact arose on the papers,
inter alia
as to
the terms of the contract of mandate concluded between Ms Nel and Ms
Ramwell, whether Ms Ramwell breached the agreement,
whether she acted
reasonably with the required diligence and skill of the average
conveyancing attorney and without negligence,
or whether it was Ms
Nel who acted in breach of the contract of mandate. One of the
major disputed issues of fact concerned
a tacit term of the contract
of mandate on which Ms Ramwell relied, which essentially was to the
effect that Ms Nel had an obligation
to ensure that her electronic
devices used in communicating with Ms Ramwell were safe, secure and
not susceptible to interception,
manipulation and cybercrime and that
she would take all reasonable steps and precautions to ensure the
integrity and safety of
the electronic devices under her control.
Circumstances upon which reliance was placed for the imputation of
such a tacit
term included ‘the epidemic nature of exactly this
kind of fraud involving attorneys’ trust accounts and
specifically
occurring when attorneys transfer sale proceeds from
their trust accounts to their clients’, which was common
cause.
[9]
Ms Ramwell put forward evidence to the effect that the electronic
device used by her in communicating with Ms Nel and in effecting
electronic transfers of funds had not been corrupted and she
accordingly contended that the risk of interception and ultimate
misappropriation of the funds had been that of Ms Nel. (Compare
the legal principles applicable where cheques have been intercepted
in the post and misappropriated by a thief:
Stabilpave v
SARS
2014 (1) SA 350
(SCA) paras 9-10.) Ms Nel, on the
other hand, denied the existence of such a tacit term and argued that
Ms Ramwell’s
version was far-fetched and untenable. I
held a different view. The disputed issues are incapable of
resolution on
the papers and require full ventilation at a trial.
[10]
At the outset of the hearing before me I reminded Ms Nel’s
counsel that an application for the hearing of oral evidence
or
referral to trial must, as a rule, be made
in limine
and he
expressly elected to argue the matter on the papers. But,
instead of addressing me in reply, he applied for the hearing
of oral
evidence or referral to trial. In initially arguing for a final
order, counsel submitted that Ms Ramwell’s
version of the tacit
term of the contract of mandate was not credible and probable, and
should thus be rejected. But, as
was said by Harms DP in
National Director of Public Prosecutions v Zuma
[2009] ZASCA 1
;
2009 (2) SA
277
(SCA) at 290D-E:
‘
Motion proceedings, unless
concerned with interim relief, are all about the resolution of legal
issues based on common cause facts.
Unless the circumstances
are special they cannot be used to resolve factual issues because
they are not designed to determine probabilities.’
[11]
And even if I were to accept that Ms Ramwell’s version was
improbable in certain respects, I was called upon to decide
the
matter without the benefit of oral evidence and had to accept the
facts alleged by Ms Ramwell ‘unless they constituted
bald or
uncreditworthy denials or were palpably implausible, far-fetched or
so clearly untenable that they could safely be rejected
on the
papers’. (
Per
Wallis JA in
Media 24 Books (Pty) Ltd v
Oxford University Press Southern Africa (Pty) Ltd
2017 (2) SA 1
(SCA) at 18A-B.) That test was not satisfied.
Furthermore, ‘[a] finding to that effect occurs infrequently
because
courts are always alive to the potential for evidence and
cross-examination to alter its view of the facts and the plausibility
of the evidence’. (
Media 24
at 18B.)
[12]
In
National Scrap Metal (Cape Town) (Pty) Ltd and another v Murray
& Roberts Ltd and others
2012 (5) SA 300
(SCA) para 22, Leach
JA said the following:
‘
As was recently remarked in
this court, the test in that regard is ‘a stringent one not
easily satisfied’. In
considering whether it has been
satisfied in this case, it is necessary to bear in mind that, all too
often, after evidence has
been led and tested by cross-examination,
things turn out differently from the way they might have appeared at
first blush.
As Megarry J observed in a well-known dictum in
John v Rees and Others;
Martin and Another v Davis and Others; Rees and Another v John
[1970]
1 Ch 345
([1969]
2 All ER 274
(Ch)) at 402 (Ch) and 309F (All ER):
‘
As everybody who has anything
to do with the law well knows, the path of the law is strewn with
examples of open and shut cases
which, somehow, were not; of
unanswerable charges which, in the event, were completely answered;
of inexplicable conduct which
was fully explained; of fixed and
unalterable determinations that, by discussion, suffered a change.’
[13]
I have dismissed the application with costs despite the belated
request on Ms Nel’s behalf for the matter to be referred
for
the hearing of oral evidence. An application for the hearing of
oral evidence must, as a general rule, be made
in limine
, and,
unless the circumstances are exceptional, a court will not permit an
applicant to apply in the alternative for the matter
to be referred
to evidence should the main argument fail. In
De Reszke v
Maras and others
2006 (1) SA 401
(C) at 413G-H, Comrie J said the
following:
‘
Some younger counsel, in
particular, seem to take it half for granted that a court will hear
argument notwithstanding disputes of
fact and, failing success on
such argument, will refer such disputes, or some of them, for oral
evidence. That is not the
procedure sanctioned by the Supreme
Court of Appeal. On the contrary, the general rule of practice
remains that an application
to refer for oral evidence should be made
prior to argument on the merits. The Supreme Court of Appeal
has widened the exceptions
to this general rule, but they remain
exceptions’.
And
in
Law Society, Northern Provinces v Mogami
2010 (1) SA 186
(SCA) at 195C-D, the Supreme Court of Appeal re-affirmed that general
rule of practice. There, Harms DP said this:
‘
An application for the hearing
of oral evidence must, as a rule, be made
in
limine
and not once it
becomes clear that the applicant is failing to convince the court on
the papers or on appeal. The circumstances
must be exceptional
before a court will permit an applicant to apply in the alternative
for the matter to be referred to evidence
should the main argument
fail (
De Reszke v Maras and
Others
2006 (1) SA 401
(C)
([2005]
4 All SA 440)
at paras 32-33).
[14]
No special circumstances that justified a deviation from the general
rule of practice were shown to exist. The factual
disputes are
wide-ranging and not within a narrow compass. A referral to
oral evidence on specified issues, therefore, would
not have been a
suitable method of employing
viva voce
evidence for the
determination of the disputed issues of fact. The exchange of
pleadings and a trial are required to define
and resolve the disputes
between the parties. Ms Nel, through her counsel, made a
deliberate election at the outset of the
hearing to argue the matter
on its merits, well-knowing that a referral to evidence might well be
refused should it be found that
there are material disputes of fact
that are incapable of resolution on the papers alone. Furthermore,
prior to the filing of Ms
Ramwell’s answering affidavit her
attorneys had written a letter to Ms Nel’s attorneys wherein
they had been alerted
to the existence of some of the disputed issues
of fact and the inappropriateness of motion proceedings in this
instance, but they,
on behalf of Ms Nel, nevertheless insisted to
proceed by way of motion proceedings.
P.A. MEYER
JUDGE OF THE HIGH
COURT
Dates
of hearing: 4 December 2018
Date
of Judgment: 1 March 2019
Counsel
for Applicant: Adv C Acker
Instructed
by: Pagel Schulenburg Inc, Bryanston, Johannesburg
Counsel
for Respondent: Adv CT Vetter
Instructed
by: Frese, Moll & Partners, Roosevelt Park, Johannesburg