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[2010] ZAWCHC 620
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Rodel Financial Service (Pty) Ltd v Velile Tito Cape Inc and Others (5456/2009) [2010] ZAWCHC 620 (10 December 2010)
IN
THE HIGH COURT OF SOUTH AFRICA
(WESTERN
CAPE HIGH COURT, CAPE TOWN)
Case
No.: 5456/2009
In
the matter between:
RODEL
FINANCIAL SERVICES (PTY) LTD
….................................................
Applicant
and
VELILE
TINTO CAPE INC
…................................................................
First
Respondent
FATIMA
FLORIS
…..........................................................................
Second
Respondent
ABDURAGMAAN
FLORIS
…..............................................................
Third
Respondent
JUDGMENT
DELIVERED: FRIDAY 10 DECEMBER 2010
SALDANHA,
J
[1]
This application is based on an alleged discounting agreement
between the applicant and the second and third respondents.
[2.]
The first respondent against whom judgment was sought at the hearing
of the application is a firm of attorneys who had represented
the
second and third respondents in a conveyancing transaction and who
assisted them in obtaining finance from the applicant.
The second
and third respondent had signed a discounting agreement on the 23
rd
of
January 2008 in which the applicant was to discount the purchase
price owed to the second and third respondents under a sale
agreement in respect of certain immovable property. The second and
third respondent had entered into a Deed of Sale in respect
of
immovable property and after the discharge of the mortgage bond
obligations and estate agents commission the respondents expected
to
receive from the sale a net surplus of R718 497,04. In terms of the
discounting agreement the applicant was to pay the respondent
an
amount calculated in terms of the discount agreement as the
difference between the surplus and the discounting fee and which
amount was to be paid in two installments the first to be paid
within two days of signature of the agreement.
[3.]
The applicant claimed that it had paid the amount of R206 659,00 on
the 24 February 2008 into the trust account of the first
respondent.
[4.]
It appeared that the sale agreement upon which the discounting
agreement was based was terminated and the applicant cancelled
the
discounting agreement and sought payment against all of the
respondents jointly and severally for the amount of R258 332,02
together with interest at the rate of 27% per annum as from the 30
th
of
July 2008 to date of payment and costs on an attorney client scale.
[5.]
The application was not opposed by the second and third respondent
but only by the first respondent.
[6.]
Various defences were raised by the first respondent including
inter
alia
challenging
the authority of the deponent to bring the proceedings on behalf of
the applicant, the applicability and compliance
with the
National
Credit Act 34 of
2005
.
More particularly the first respondent claimed that in so far as the
applicant had not informed the respondents that it had
accepted the
application (the discounting agreement signed by the second and
third respondent) and as the applicant itself had
not signed the
agreement no contract had come into existence between the applicant
and the second and third respondents. The
first respondent further
claimed that there was no contract between the applicant and the
first respondent in which it was obliged
to repay any amounts paid
by the applicant into its trust account.
[7.]
At the hearing of the application
Mr.
Sievers
who
appeared on behalf of the applicant handed up a draft order in which
the applicant claimed against first respondent repayment
of the
amount of R206 659.00 together with interest and costs. He submitted
that the basis of the order sought was based simply
on the
application of the principle as set out in the decision of
Plascon-Evans
Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984(3) SA 623 A
and
referred in particular to the dicta of Corbett JA at
paragraph
E;
"Secondly,
the affidavits reveal certain disputes of fact. The appellant
nevertheless sought a final interdict, together
with ancillary
relief, on the papers and without resort to oral evidence. In such a
case the general rule was stated by Van Wyk
J (with whom De Villiers
JP and Rosenow J concurred) in Stellenbosch Farmers' Winery Ltd v
Stellenvale Winery (Pty) Ltd 1957(4)
SA 234 (C) at 235E-G, to be:
"
where there is a dispute as to the facts a final interdict should
only
be granted in notice of motion proceedings if the facts as stated by
the respondent together with the admitted facts in the
applicants
affidavits justify such an order Where it is clear
that
facts, though not formally admitted cannot be denied, they must be
regarded as admitted."
[8.]
He argued that insofar as the first respondent has admitted that the
amount of R206 659.00 was paid into its trust account
on the 24
th
January
2008 and given that the first respondent has denied that the
discounting agreement between the second and third respondent
and
the applicants have come into effect the first applicant was
therefore obliged to re-pay to the applicant the amount of
R206659.00. In effect he submitted there was no legal basis on which
the first respondent could or should have dispensed the amount
on
the instructions of the second and third respondents as the first
respondents believed that there was no contractual basis
between the
second and third respondents and the applicants.
[9.]
Ms Kusevitsky who appeared on behalf of the respondent submitted
that insofar as there was no contractual relationship between
the
applicant and the first respondent and that the first respondent had
accepted that the amount paid by the applicant was intended
for its
clients (second and third respondents) it had simply acted on its
clients instructions in dispensing the amounts and
there was no
obligation on the part of the first respondent to repay the amount
to the applicant.
[10.]
During the course of argument there was much debate between the
court and both Mr. Sievers and Ms Kusevitsky with regard
to the
obligations of an attorney who receives amounts paid into his trust
account on behalf of clients.
[11.]
Mr.
Sievers submitted that there was a special obligation on the part of
attorneys to ensure that amounts of monies received in
their trust
account were properly and lawfully administered and where there was
no basis to administer it on behalf of any particular
client such as
in the circumstances of this matter the first respondent ought to
have repaid the amount back to the applicant.
[12.]
Ms Kusevitsky on the other hand submitted that the first respondent
has merely acted as a conduit on behalf of the second
and third
respondent and upon receipt of the amount from the applicant
accepted that it was intended for them and upon their
instructions
dispensed the amounts.
[13.]
Insofar as their are significant disputes of fact in this
application this court is unable to resolve such disputes on the
papers before it. In the circumstances this matter is to be referred
to trial in the fourth division.
[14.]
With regard to the question of costs the court is of the view that
it is appropriate that it be determined by the trial
court after
having considered the versions of the respective parties in this
matter.
In
the circumstances the following order is made:
The
matter is referred to trial in the fourth division.
The
question of costs is to be determined at the trial thereof.
SALDANHA,
J
Rodel
Financial Services (Pty) Ltd v Velile Tinto Cape Inc.