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2023
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[2023] ZAGPPHC 311
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Tsihlas v S J Van Den Berg Attorneys (Leave to Appeal) [2023] ZAGPPHC 311; 39721/2021 (3 May 2023)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISON, PRETORIA)
CASE
NO.: 39721/2021
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
(3)
REVISED. NO
SIGNATURE:
DATE:
03/05/2023
In
the matter between:
LIEZEL
TSIHLAS
Applicant
and
S
J VAN DEN BERG ATTORNEYS
Respondent
JUDGEMENT
ON APPLICATION FOR LEAVE TO APPEAL
___________________________________________________________________
MFENYANA
AJ:
[1]
This is an application for leave to appeal against a judgement of
this Court, handed
down on 23 September 2022. Leave to appeal is
sought to the Full Bench of this Division.
[2]
The application is premised on the provisions of
section 17(1)
of the
Superior Courts Act 10 of 2013
, which provides as follows:
“
Leave to appeal may only be
given where the Judge or Judges concerned are of the opinion that-
(a)(i) the appeal would have a
reasonable prospect of success; or
(ii) there is some other compelling
reason why the appeal should be heard, including conflicting
judgments on the matter under consideration;
(b)…
[3]
In the application, the applicant sets out various grounds of appeal,
and contends
that the Court erred on various findings of fact and/ or
rulings of law, essentially, pertaining to certain aspects of the
matter
before the court, and in particular the following: issues
relating to estoppel, the applicant’s intended counterclaim and
disputes of facts.
[4]
I do not intend to go into all the detail set out by the applicant in
the application
for leave to appeal, save for those aspects which I
consider relevant for the determination of the present application.
[5]
In respect of estoppel, the applicant contends that the court erred
in ruling that
the applicant’s defence (that the respondent was
precluded from seeking performance in terms of the mandate, as it was
in
breach thereof) amounts to estoppel, and thus founding the summary
judgement on the premise that the respondent was not precluded
from
claiming legal fees when it should not have done so. In this
regard, the applicant contends that for it to be recognised,
the
defence of estoppel ought to have been pleaded. It had not been so
pleaded in the present case.
[6]
The applicant further contends that the defence pleaded by the
applicant is a denial
of compliance by the respondent, with the
mandate agreement, which would constitute a complete defence at
trial.
[7]
As far as the applicant’s discontent with the findings
pertaining to the counterclaim,
goes, she avers that the court erred
in not finding that the applicant had provided a reasonable
explanation for not formulating
the counterclaim, considering that
the applicant’s file had been retained by the respondent, thus
preventing the applicant
from doing so. The applicant further avers
that the court ought to have found that the applicant’s cause
of action met the
facta probanda
and there was no basis to
suggest that the claim was not
bona fide
. She further contends
that, in facing a summary judgement application, a defendant may rely
on an intended claim in reconvention
in an unliquidated amount which
exceeds the plaintiff’s claim. In this regard, the applicant
contends that the court may
not have considered all the authorities
relied on by the applicant in resisting the summary judgement
application.
[8]
With regard to disputes of fact, the applicant argues that the common
cause facts
of instances where the respondent failed to comply with
his mandate were genuine and required determination in order to
resolve
the disputes. These are set out in elaborate detail, which
this court need not go into, save to state that the applicant avers
that these instances, which she further avers, included the
respondent’s obligation to fulfil its mandate faithfully,
honestly,
and with the necessary skill and diligence, and account to
the applicant, constitute a triable issue.
[9]
Thus, the applicant contends that the court ought to have ruled that
these factors
constituted a triable issue and summary judgement
should have been refused.
[10]
I have considered the applicant’s grounds of appeal and
listened intently to the submissions
made by both counsel in the
present application. I am persuaded that the applicant has made out a
case for the relief sought in
the application for leave to appeal,
and that an appeal would have a reasonable prospect of success.
Order
[11]
In the result, I make the following order:
(i)
The applicant is granted leave to appeal to the Full Bench of this
Division.
(ii)
The costs of the application will be costs in the appeal.
S.M
MFENYANA AJ
ACTING
JUDGE OF THE HIGH COURT
HIGH
COURT, PRETORIA
For
the Applicant:
Adv. H P Van
Nieuwenhuizen
Instructed by:
SJ Van den Berg Attorneys
For the Respondent:
Adv. D Keet
Assisted by:
Adv. N S Nxumalo
Instructed by:
Steve Merchak
Attorney