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[2011] ZAGPPHC 28
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Louw v Cooper (35529/2009) [2011] ZAGPPHC 28 (1 March 2011)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT
(
REPUBLIC OF SOUTH AFRICA)
CASE
NO.: 35529/2009
DATE:
01/03/2011
In
the matter between:
JOHANNES
RUDOLPH MARAIS LOUW
.............................
PLAINTIFF/RESPONDENT
V
SHEENA
COOPER
..................................................................
DEFENDANT/EXCIPIENT
JUDGMENT
WEBSTER
J
1.
The plaintiff who is described in the particulars of claim as "...an
adult male Attorney on the non-practising roll of Attorneys"
has
instituted action against the defendant for (i) payment of R667
204.00 being the amount allegedly owing to him by the defendant
in
respect of services rendered by him to the defendant in his capacity
as a "primary advisor" in relation to the development
by
her of the farm Schoonspruit. The plaintiff avers that these fees
amount represents the total of his normal hourly rate, alternatively
a fair and reasonable fee for services rendered by him plus
disbursements incurred by him in the execution of his duties; (ii)
damages in the sum of R500 000 for seven (7) defamatory remarks
allegedly made by the defendant of and concerning the plaintiff
in an
affidavit deposed to by the defendant. The sum of R500 000 is a
globular amount for and in respect of all seven of the alleged
defamatory remarks.
2.
The
defendant, having given due notice in terms of Rule 23 to the
plaintiff to cure what she regards as excipiable particulars of
claim
and the plaintiff having failed, in her view, to cure the
objectionable allegations, has set the exception down for hearing.
3.
3.1
The exception on the claim for services rendered (including
disbursements
allegedly paid by the plaintiff) is that the plaintiff not being a
legal practitioner in possession of a Fidelity
Fund Certificate
(being a non-practicing Attorney) is not entitled to charge fees for
anything done by the plaintiff for the defendant
in terms of the
provisions of section 41(1) and section 41(2) of the Attorneys Act 53
of 1979 and further because the drawing up
or preparation of
documents listed in section 83(8)(a)(i) to (v) of the Attorneys Act
(as aforesaid) by any person except a practising
Attorney in
expectation of payment of fees constitutes as criminal offence. It
has been submitted that "...a number of documents
drawn by the
plaintiff for the defendant fall with the categories of documents
listed in section 83(8)(a) of the Attorneys Act".
Further, and,
tongue in cheek, the defendant contends that the particulars of claim
in this regard "...are not sufficiently
clear, so as to enable
the defendant to ascertain, from the limited detail provided in the
schedule, whether these attendances
fall within the ambit of section
83(8) of the Attorneys' Act".
3.2
With regard to the second exception the defendant contends that the
excerpts set out in the affidavit relied upon "...are
in fact
not defamatory and ... are not to be understood by readers to convey
the meanings attributed to them by the plaintiff ...
or ... carry the
alleged sting referred to by the Plaintiff". A further objection
is that the plaintiff has failed to set
out the amount claimed in
respect of each "defamatory publication" separately.
4.
The
plaintiff avers that (i) nothing in his account is in respect of work
reserved exclusively for practising attorneys and consequently
falling foul of the relevant provisions of the Attorneys' Act; and
(ii) that the defamatory remarks complained of constitute one
act of
defamation, contained as they are, in one document and were published
on one occasion.
5.
The
services allegedly rendered by the plaintiff to the defendant are set
out in a schedule annexed to the particulars of claim.
They are in
very fine print, single spaced and cover approximately 13
i;
4
pages.
They commence with the period "Prior to July 2004" and go
up to August 2006. The time for each "attendance"
is given
in hours. The disbursements are itemised individually. The
description of nature of the "services rendered"
appear not
easily capable of being construed as falling within the type of work
preserved for attorneys upon merely perusing the
statement of
account. By way of illustration the very first attendance reads as
follows: "Preliminary discussions in Johannesburg
when told
about development plans for farm property and client asked if I would
be prepared to advise and assist; furnishing preliminary
advice on
possibilities; receiving basic details about the property and taking
delivery of comprehensive album of photos depicting
the farm and its
surrounds; arranging to visit farm and discuss with Ms Cooper senior
and Ms Cooper junior (Sheena Ann Cooper)."
6.
Further
random attendances read as follows: "
August,
2004
-Preliminary work on draft documentation for instructions to
attorneys, including sale agreement and statutory schedule;
preliminary
discussions with the Department of Agriculture in
Pretoria
and obtaining forms from them for completion; detailed discussions
and efforts to find the right persons with whom to deal;
drafting
correspondence to the Department of Agriculture and attending on
replies; attending on numerous phone calls with departmental
officials. Attending on regular phone calls from client and dealing
with her questions." "
April
19, 2005
- Attending on receipt of e-mail from Mr Anthony Stevens enclosing 12
page quotation from Eco 8 for the proposed environmental
impact
assessment. Perusing, considering and reply. Noting that meeting is
to take piace on 20 April in Nelspruit."
The
closest entries relating to "legal work" as used in the
profession reads as follows: "To my fees and disbursements
for
legal
and general consultancy services rendered during the period from June
to August 2006."
7.
In
argument before me defendant's counsel submitted that the attendance
of August 2004 demonstrates clearly that the plaintiff had,
i.a.
drawn up the "sale agreement" which is one of the documents
reserved for practising attorneys. It was submitted
further that the
services rendered by the plaintiff fell within the ambit of an
Attorney's practice and in particular within the
provisions of
section 41(1) of the Attorneys' Act.
8.
When
the meaning of the entry relied upon by defendant's counsel was
debated with him he submitted that the court would not at this
stage
make this finding as the entry could be capable of being construed in
another way
viz.
that
the agreement of sale had not in fact been drawn up by the plaintiff.
Faced with this difficulty he submitted that the exception
should not
be adjudicated upon at this stage but postponed for the
tr\a\
as
evidence led then would put the issue in a clearer perspective to
establish the defendant's contentions on the first exception.
9.
It
was submitted further that the finding on the first exception impacts
on the claim for defamation as the "sting" lies
in the
allegation that the plaintiff did work preserved for practising
attorneys. This further emphasized, it was submitted, the
justification for oral evidence.
10.
The
argument on behalf of the plaintiff whilst vociferously contradicting
the defendant's exceptions is essentially in accord with
the shift
adopted by the defendant in conceding the necessity for evidence.
Plaintiff's counsel persisted in the dismissal of both
exceptions.
11.
With
regard to the costs issue it was submitted on the defendant's behalf
that costs should be reserved so as to follow the result.
Plaintiff's
counsel insisted on the costs order.
12.
It
is quite clear that the court cannot make a finding in support of the
defendant's first exception. The alternative that it be
reserved for
trial cannot succeed. It should have been clear from the very onset
that without evidence this court would find it
well-nigh impossible
to find in the defendant's favour on the first exception. The
defendant must have been advised by those representing
her that the
success of exception could, in all probability, result in the end of
the litigation. I see no justification in not
following the practice
that the costs should follow the result.
13.
Both
exceptions are dismissed with costs.
G.
WEBSTER
JUDGE
IN THE HIGH COURT
Date
of hearing: 24 February 2011
Counsel
for the Excipient: Adv MP van der Merwe
Counsel
for the Respondent: Adv AJ Eyles