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[2023] ZAKZPHC 30
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Shabalala v Bixoflo t/a Blue Clover N.O. (AR 325/21) [2023] ZAKZPHC 30 (10 March 2023)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
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IN
THE HIGH COURT OF SOUTH
AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
Appeal
Case No: AR 325/21
Court
a
quo
Case No: 9690/20
REPORTABLE
In
the matter
between
:
BUSISIWE
BEATA SHABALALA
APPELLANT
(Identity
No.
[....])
(Defendant
a quo)
and
BIXOFLO
CC t/a BLUE CLOVER N.O.
RESPONDENT
(Registration
No.
2010/156585/23)
(Plaintiff
a
quo)
ORDER
It
is ordered
:
1
The
appeal
is
upheld
;
2
The
costs
occasioned
by
the
appeal
will
be
costs
in
the
cause of
the
action
;
3
The
order
granted
in
the
court
a
quo
on
11
th
June
2021
is
substituted
with
the following
:
'1
The application for
summary judgment is dismissed;
2
The defendant
is given leave to defend the action;
3
The costs of
the summary judgment application are reserved for determination by
the court finally adjudicating over the trial of
the matter.
'
JUDGMENT
Khan
AJ (Sibiya J concurring):
Background
[1]
The
plaintiff in
the court a
quo
is
the respondent
in this appeal. It sued in
its capacity
as administrator
of
the
respondent
,
having
been duly
appointed
thereto in
terms of s 16
of the
Sectional Titles
Schemes
Management
Act 8 of 2011
(
the
STSMA)
,
by
way
of
an order of
the Durban High Court dated 11th
September
2019
.
It
instituted action against the defendant
,
who is the
appellant in this appeal
,
for payment of
the sum of R122 256
.
80
in respect
of
arrear
contributions
/
levies;
interest
thereon
at the rate
of 2
%
per month
,
calculated
and compounded
monthly
from date of
demand
to
date of
final
payment
;
and
costs as taxed or agreed in accordance with Management rule 25(4) as
per its bill of costs annexed to its particulars
of claim,
marked
"
E
",
in the Durban
Magistrates
'
Court
.
[2]
The
defendant's
delivery
of
her
appearance
to
defend
that
action
prompted
an application
for summary judgment by the plaintiff
,
which was
granted by the court a
quo
,
subsequent
to an opposed hearing
,
in the
following terms
:
'
1
.
Payment of the sum of
one hundred and twenty two thousand two hundred and fift
y
si
x
rand and
eighty cents
(
R122
256
.
80)
;
2.
Interest at
24
%
per
annum calculated and compounded monthly from the date of service of
the summons to the date of final payment
;
3.
Costs
of
suit
on
the
attorney
and
client
scale
as
ta
x
ed
or
agreed
in
acco
r
dance
with
Management Rule (25)
(
4
)
see anne
x
ure
"
E
"
of the
particulars of claim
;'
[3]
This is an
appeal by the defendant
against
such summary
judgment.
Merits
[4]
In its
particulars of claim in that action
,
the plaintiff
,
by reference
to provisions of the STSMA and rules promulgated under the Sectional
Titles Schemes Management Regulations
,
demonstrated
the defendant's liability
,
qua
owner
of a flat in the relevant block of flats
,
to pay
contributions
,
which included
levies
,
to
the Body Corporate of such block of flats.
[5]
The plaintiff
alleged in its particulars
of claim that:
(a)
the defendant
was in arrears with the payment
of
contributions
;
(b)
the Body
Corporate gave notice to the defendant
i
n
terms of rule 25(2) of the prescribed Management Rules
,
requiring her
to remedy such breach of her obligation within 14 days of receipt of
such notice
;
and
(c)
the defendant
failed to
remedy such breach
.
[6]
The
nub
of
the
defendant
'
s
defence
raised
in
her
plea
is
,
apart
from
her
denial
of liability
for
the
amount
claimed
or any
other
amount
,
that the
plaintiff
has
been
remiss
with its
maintenance
obligations
of the common
property
.
She
claims that:
(a)
she attends to
not only repairs and maintenance of her flat but also to the common
property
;
and
(b)
no meeting
with the plaintiff has occurred for the past five years and that she
has no recollection of the passage of any resolution
.
[7]
In
her
opposing
affidavit
to
the
plaint
i
ffs
summary
judgment
application
,
the defendant
raised much the same defences
,
but in
addition thereto
,
she alleged
that the plaintiffs claim is not for a liquidated amount and
therefore unsuited to a summary judgment application
.
The plaintiffs
counsel correctly conceded that a defendant is entitled to raise a
defence in his
/
her
opposing affidavit to a summary judgment application which he
/
she
had not raised in his plea
,
after having
initially argued the contrary
.
[8]
On
16t
h
March
2021
,
shortly
after
commencement
of
the
opposed
summary
judgment
application
hearing,
the
defendant
'
s
attorney
announced
that he
intended placing in issue the plaintiff's
non-compliance
with the 15
days
'
time
limit
prescribed by
Magistrates
'
courts
rule 14(2)
,
computed
from
the date of
delivery
of
the plea
,
for the
purpose
of
i
nstituting
the
application for summary judgment.
[9]
This
was
met
with
resistance
from
the plaintiffs
attorney
who
argued
that
such
issue
had not
been
raised
in
the
defendant's
opposing
aff
idavit
to
the
summary
judgment
application and it was therefore unsuited
.
[10]
There
then
raged
a
strenuous
debate
between
the
parties
as
to
whether
the
defendant
was entitled to
raise
such point
in
limine
for the
first
time
during the
course
of the opposed
summary judgment application hearing. Indeed
,
the defendant
complains that the magistrate
i
n
the court
a
quo
misdirected
himself
in
refusing
to
entertain this point
in
limine,
alternatively
in dismissing such point
in
limine
on the
basis that it had not been raised in the opposing affidavit. The
defendant
points out
that the written judgment was silent on such
issue.
[11]
During the
hearing of the appeal however
,
the
defendant's attorney
,
who
again
appeared for the defendant
,
was
constrained to concede
t
hat
the record of the opposed summary judgment hearing
ref
lects
that the
learned magistrate in the court
a
quo
did
entertain
such
point
in
limine
and
availed
the
parties
'
legal
representatives
the
opportunity
of
arguing such issue
,
although he
omitted to address and make a ruling thereon in his judgment.
[12]
The
defendant
'
s
attorney
referred
us to the two
undermentioned cases in
support
of the
proposition that a defendant in an opposed summary
judgment
application
hearing
is
not precluded
from
raising
an
issue/issues
relating
to
the
validity
of
the
appl
ic
ation
for summary
judgment at the opposed hearing simply because he has not referred to
such issue/s in his opposing
affidavit ie
.
he is not
precluded
from
raising
a
point
i
n
l
imine
dur
i
ng
the
course
of
the opposed summary judgment
hearing for
the first time
:
(a)
in
Arend
and another v Astra Furnishers (Ply) Ltd
1974
(1)
SA 298
(C)
at 314B-C,
Corbett J
said
:
'...
I hold
that
a defendant in
summary judgment proceedings is not precluded
from
raising
issues
relating to
the validity of the plaintiff's application merely because he has not
referred to these matters in his opposing affidavit.
'
(b)
in
Weavind
&
Weavind
Incorporated
v
Manley
N.
0
(A213/18)
2019
ZAGPPHC 1030
(6
December 2019)
para 16
,
NV
Khumalo J stated
:
'
Nevertheless
,
the raising of
complaints for the first time
in
limine
,
as points
of law during the hearing of the Application
wo
uld
normally be
allowed even if
they
were not
pleaded or raised in the Answering
Affidavit
;
see
Arends
v
Astra
Furnishers
(Pty)
Ltd
1974
(1)
SA
298
(C)
when Corbett,
J
,
as
he then was
,
held
that
a Defendant
in
summary
judgment proceedings
is
not precluded
from raising
iss
ues
relating to
the
va
lid
ity
of the
Plaintiff's
applic
ation
merely because
he
has
not referred to these
issues
in his
opposing affidavit. The learned Judge at
314
8
C observed as
follows
:
"Where
the attack is
upon the ground that the Plaintiff's particulars of claim do not
substantiate a valid cause of action
,
then
,
in my view
,
this
is
[not]
strictly
a defence and it does not fall within
the
ambit of
rule
32
(3)
(b)
regarding
the
Defendant's obligation to
fully
disclose
his
defence
.
It
raises
rather the question as
to
whether
the
Plaintiff has complied with rule 32
(1)
and (2)
relating to the requirements of an application
for
summary
judgment.
'"
[13]
The
learned
judge
in
the
Weavind
case
further
referred
to
the
cases
of
Geyer
v
Geyer
'
s
Transport
Services
(Pty)
Ltd
and
others
1973
(
1)
SA
105
(T)
at
107C-E
and
Transvaal
Spice
Works
and
Butchery
Requisites
(Ply)
Ltd
v
Conpen
Holdings
(Pty)
Ltd
1959 (2)
SA
198
(W)
,
where he said
the same approach was followed.
[14]
This
approach,
however
,
must
be juxtaposed
with
the
approach
of the
Supreme Court
of
Appeal
in
the unreported case of
Biyela
v Minister
of
Police
(1017/2020)
[2022] ZASCA
36
(01
Apri
l
2022)
para
8 where the
court per Musi
AJA
with Petse AP
,
Dlodlo JA and
Matonjane and Molefe AJJA concurring said:
'
It
goes without saying that a trial by ambush
i
s
unfair
;
courts
should be
very
slow to allow a party to mount a case at
trial
other than the
one that
the
party has
pleaded
.
In
Minister
of
Safety and Security v Slabbert
[(2009]
ZASCA 163
;
(2010) 2
All
SA 4
7
4
(SCA
)
para
11]
it was stated
that:
"
The
purpose of pleadings
is
to define the
issues for the other
party
and
the
court
.
A
party
has a duty to allege in the pleadings the material facts upon which
it
relies.
It is
i
mpermissib
l
e
for
a
plaintiff to plead a
particular
case and seek to establish a different case at
trial.
"'
(Footnote
omitted
.)
[15]
The words of
Corbett J
in
Arend
at
3148-C
,
that,
'
I
refrain
from
expressing
any
view on the duty of the defendant in such a case to give notice
of
his intention
to
raise
such
an issue
,
since
this
point
does
not
arise
in
this
appeal'
,
are
particularly
apposite
.
Clearly
,
the learned
judge
influenced
by
considerations
similar
to
those
expressed
by
the
Supreme
Court of
Appeal
in
Biyela v
Minister
of
Police
,
referred
to but
refrained
from
expressing
a
view on the
matter
of prior
notice being given of the intention
to
raise a point
in limine
which was
not addressed before.
[16]
It
is
to
be
expected
that
the
issue
of
the
necessity
to
give notice
to
raise
a
point
in
limine
will again
arise and seized with
it
,
this
court
must
charter
a course
that
finds the
balance
between the right to raise such points
i
n
limine
and the
duty
to
give
prior notice thereof to the opposition.
[17]
Should
prior
notice
be
obligatory
,
it
will
prejudice
a
party
who
discovers
a
material point
in
/imine
,
for
the
first
time during
the
course
of argument.
Therefore,
the
balance
,
to my mind
,
lies
in
the
author
of
such
point
in
limine
not
being
obstructed
from
raising
it
,
despite there
having
been
no
prior notice thereof
,
but the
opposition
being
afforded
an adjournment
ranging
from
a
few
hours
,
subject to
the
discretion
of
the
court
,
to
a few days
,
to enable
him
to prepare
adequately
to
meet
the challenge
.
It
would
be
prudent
to
reserve
the
determination of the issue of
costs
occasioned
by
such
adjournment
jointly
with
the determination
of
the summary
judgment
application
as
there
exists
prospects
of
su
c
h
costs
order
being determined
in
favour
of
either one of
the
parties
.
[18]
Adverting to
the merits of this point
in
limine
,
it is
common cause that the summary judgment app
l
ication
bore the clerk of the court
'
s
date stamp 14t
h
October 2020
and that it was served per email
,
as agreed upon
between the parties
,
on 14
th
October 2020
,
the final date
for instituting the summary judgment application
.
As a
precautionary measure
,
the plaintiff
also served the application for summary judgment through the Sheriff
and such application bears the Sheriffs date
stamp, 15
th
October 2020
.
It is common
c
ause
that service through the Sheriff was effected some days
l
ater
.
[19]
The
defendant's
attorney
argued
that
there
should
have
been
two
date
stamps affixed
to the application
,
the one when
it was issued prior to service thereof an
d
the other when
it was filed with the clerk of the court post service
,
and that both
such date stamps could not be later than 14
t
h
October
2020
.
He argued that
the fact of the Sher
i
ffs
date stamp 15t
h
October 2020
appearing on the application suggested that it could not have been
filed before 15
th
October 2020
and that the application was unsuited for not having been del
i
vered
timeously
.
When asked the
definition of the word
"
deliver
"
in terms of
the Magistrates
'
court
rules
,
the
defendant's attorney
correctly responded
that
it
meant
"
serving
and filing
"
of process
.
[20]
The plaintiff
contends that it both served and filed the application on 14
th
October 2020
,
as evidenced
by the date stamp of the clerk of the court and the defendant's
acknowledgment of receipt on that date
.
The Sheriffs
date stamp
,
it
argued
,
relates to an
additional cautionary service of the papers through the Sheriff and
did not detract from compliance with the rules
relating to delivery
by the plaintiff
.
[21]
The plaintiff
having delivered the application for summary judgment
,
timeously
,
I find that
there is no mer
i
t
in this point
in
limine
.
[22]
The
following
three
further
issues
also
require
determination
by
this
court
,
namely
,
whether
:
(a)
the summary
judgment
application
satisfied
the
requirements
of
Magistrates
'
courts rule
14
;
(b)
the plaintiffs
particulars of claim
is
excipiable and
if
so,
whether the appeal court
is
entitled to
take this into account when determining the appeal if it had not been
raised in the court a
quo;
and
(c)
the
claim
is
for
a
liquidated
amount.
First
further issue
[23]
In respect of
the first of such further issues
,
the plaintiff,
under amended
Magistrates'
courts rule
14(2)(b)
(Uniform
rule
32)
is
required
to
'
verify
the
cause
of
action,
the
amount
claimed
,
if
any
,
identify
any point of law
relied
upon,
state
the facts
upon
which the plaintiffs claim
is
based, and
explain briefly why
the
defence as
pleaded
,
does
not raise
any
issue for
trial
'.
In
essence
,
the
plaintiff
should prove
its
claim
and
discredit
the
plea
.
It
will
not
suffice to
merely
state
that the defendant
has no
bona
fide
defence
.
[24]
During
the
hearing
of
the
opposed
summary
judgment
proceedings
in
the
court
a
quo
,
the
learned
magistrate
pointed
out
that
the
affidavit
annexed
to
the
application
for
summary
judgment
was
in the old
format
and
not in the
requisite
post-amended
form. Indeed,
the "high
water'
'
mark of the
plaintiffs supporting
affidavit
to
its
summary
judgment application
is
at
paragraph 5
.
2
,
where it
alleges
:
'The
Defendant is the
owner
of
unit
12
of
the body
corporate of
Perseus
Road No
.
9 and have
failed
to make
levy
contributions
for the period
February 2011 to March
2020
as evidenced
by annexure
"
B
"
of the
particulars
of
claim and
therefore
the
plea
does
not disclose a defence
.'
[25]
The
plaintiffs
supporting
affidavit
is
inaccurate
in
that
in
paragraph
5.2
thereof
,
referred to
above
,
its
claim
is
described as one
for
the payment of
arrear levies
.
However,
annexure
"
B
"
to the
plaintiffs particulars of
claim
includes
charges other
than levies
.
The position
is exacerbated for the plaintiff by
its
counsel's
argument
before us
that
the plaintiffs
claim
is
for
contributions
which include
levies
.
In
addition
,
in
such
supporting
affidavit
the
plaintiff
fails
to
identify
the
points of
law relied
upon
,
the
facts
upon
which the
plaintiffs
claim
is based
and
why
the
defence
as
pleaded
,
does not raise
any issue for
trial.
This
falls
short of the
abovementioned requirement
i
n
the
amended
rule.
[26]
The
court
a
quo
having
correctly
identified
the
deficiency
in
the
app
l
ication
for summary
judgment
did
not
pursue
the
matter
further
.
This
observation
appears
to have been
abandoned in
"
mid
-
flight
".
The learned
magistrate
in
the court
a
quo
ought to
have found that the plaintiff had failed to discharge
t
he
onus upon it to show that the application satisfied the provisions
of
Magistrates
'
courts rule
14(2)
(
b
)
.
[27]
However
,
the
aforegoing
is
not
to
be
construed
as
Magistrates
'
courts
rule
14
(
2)(b)
conferring
the right to deliver unnecessarily copious affidavits in support of
summary
judgment
applications. Balance must be maintained between presenting the
pla
i
ntiff
'
s
case succinctly
,
yet with
sufficient particularity
.
Second
and third further issues
[28]
Is the
particulars of claim on which the appl
i
cation
for summary judgment
i
s
founded excipiable
,
and is the
plaintiffs claim for a liquidated amount? An excipiable particulars
of claim cannot found the basis for an application
for summary
judgment. In
We
a
vind
,
the
learned judge said at para 24 that 'the Respondent must set out all
materia
l
facts
with sufficient particularity in order to justify the legal
conclusion in relation to the relief sought'
;
and at para
23,
'
where
a pleading is found to be excipiable summary judgment cannot be
granted
'
.
[29]
In paragraph 6 of its particulars of claim
,
the plaintiff
claimed that in terms of s 3
(
1
)(c
)
of the
STSMA
,
the
Body Corporate is author
i
sed
and empowered to require the owners of sections within it
,
whenever
necessary
,
to
make contributions
.
[30]
In paragraph
8
,
the
plaintiff concludes that owners in the Body Corporate
,
including the
defendant
,
were l
i
able
to pay contributions
to the Body
C
orporate
.
[31]
In
paragraph
10
of
its
particulars
of
claim
,
the
plaintiff
alleges
that
the
defendant
failed to
make
payment
of
her
contributions
or
made
part
payment
to
the
Body
Corporate
for the period
February 2011 to March 2020
.
[32]
In paragraph
11
of
its
particulars of claim
,
the plaintiff
alleges that the defendant is indebted to the Body Corporate in an
amount of R122 256
.
80
.
Annexed to the
particulars of claim
,
marked
"B",
is a copy of
the arrear
levy
account
(my
emphasis)
.
[33]
The
plaintiffs
counsel
at
the
appeal
hearing
was
adamant
that
the
contributions
referred
to
in the particulars
of claim
included but
were
not
limited
to the levies
payable
by the
defendant.
[34]
The
alleged
arrear
levy
account
has
a
balance
of
R122 256.80,
being
the
same amount as
the alleged arrear contributions
.
Consequently
,
the
plaintiff
'
s
particulars of claim presents with a material contradiction viz. is
the amount
of
R122 256.80
claimed in respect of arrear levies only or is it claimed in respect
of arrear
contributions?
[35]
This defect is
exacerbated by the fact that the
stat
ement
does
not
bear scrutiny
.
It commences
with a zero
-
balance
brought forward as at 28
th
February 2011,
yet on
1
st
March 2011
,
there
is
an
opening
balance
in
the sum of R21
680.40
.
Reference
is made in an
entry on that statement to an invoice that fell due on 8
th
March
2011
in
the sum of
R21 680.44
.
However
,
that invoice
does not form part
of
the papers nor
are
the
contents of that invoice
provided.
[36]
There
are
several
debits
in
the
sum
of
R363
.
51
per
month
which
appear
to
be amounts
payable
in
respect
of
levies
.
The
anomaly
is
that
there
having been
a
zero-balance
as at 28
th
Feb
ruary
2011, how is
it
that
a balance
arises
on
1
st
March 2011
in
an
amount
which
appea
r
s
to exceed
the amount
of the
levy?
The
fluctuation
in the figures
of what appear
to
be
levy
charges
without any
explanation as to
the
computation
thereof is also a matter of concern
.
[37]
There
are
no
less
than
five
entries
on
annexure
"B"
that
bear
the
endorsement
"
legal
".
This
,
the
plaintiffs
counsel
conceded
were
debits
in
respect
of
the
untaxed
legal costs
which
the
plaintiff claims
to
have
incurred.
[38]
Rule 25(4)
of the
Management Rules prescribed
in terms of s
10(2)(a) of the STSMA provides that:
'
A
member
is
liable
for
and
must
pay
to
the
body
corporate
all
reasonable
legal
costs
and
disbursements
,
as taxed or
agreed by the member
,
incurred by
the body corporate in the collection of arrear contributions or any
other arrear amounts due and owing by such member
to the body
corporate
,
or
in enforcing compliance with these rules
,
the conduct
rules or the Act
.'
[39]
The total
amount claimed by the plaintiff in its act
i
on
,
as indeed in
its summary judgment application is the sum of R122 256
.
80
.
This amount
appears to embody claims for contributions
that
include
levies
,
legal
costs
and
other
claims
that
have not been
identified in
the plaintiffs particulars of claim
.
The plaintiffs
counsel too
,
could not
identify such other claims during the course of the hearing of the
appeal. The legal charges claimed had not been taxed
nor agreed and
the plaintiffs counsel conceded that such other unidentified
claims might
have included damages claims that had not been quantified nor proved.
[40]
A
prerequisite
for
the
determination
of
the
reasonableness
of
the
plaintiffs
legal costs is
an
itemised
bill
and
only
upon
taxation
thereof
would
the
fairness
and
reasonableness of such fees be determined. In the absence of such
itemised statement and the contemplated taxation
,
an agreement
between the parties as to the quantum and reasonableness of such fees
is essential. There was no such taxation or agreement.
[41]
In
Weavind,
Khumalo J
said at para 18
:
'
In
c
asu
not only
were the new issues
in
lim
i
ne
not raised
in the affidavit resisting summary judgment but it was also neither
raised during the hearing of the Application in the
court a quo nor
by way of a Notice to Appeal. It was only raised in the Appellant's
written heads of argument in the Appeal. However
for the reason that
an inherently defective summons or particulars of cla
i
m
cannot susta
i
n
a summary judgment or be corrected of its defectiveness by
overlooking or disregarding the defect
,
I am not
persuaded that there is justification for not allowing the raising of
these
limine
issues for
the first time on appeal and for them to be considered
.'
See also
Arends
v A
s
tra
Furni
s
hers
(Pt
y)
Ltd
.
at para
12(b
)
above
.
[42]
The defendant
raised complaints in paragraphs 9 and 10 of its notice of appeal that
were suggestive of the particulars of claim
lacking in particularity
and being vague and embarrassing. In paragraphs 12 to
15
of the
defendant's heads of argument too
,
the defendant
complains of the lack of clarity relating to material aspects of the
plaintiffs particulars of claim
.
[43]
The
plaintiffs
particulars
of
claim
are
indeed
vague
and
embarrassing
.
Consequently,
the learned magistrate in the court a
quo
misdirected
himself
in
granting
summary judgment for the
reason
that the
particulars of claim was vague and embarrassing,
if
not inherently
defective and therefore could not sustain an application for summary
judgment.
[44]
The plaintiffs
counsel could
not point to any part
of
the plaintiffs
pleadings
which
furnished an adequate computation of the claimed sum of R122 256
.
80.
This amount was simply not quantified with the requisite degree of
particularity
.
The plaintiffs
claim
was
for
a globular amount of R122 256
.
80
in respect of arrear levies or arrear contributions. In annexure
"B"
to the
plaintiffs particulars of claim where such amount was supposedly
quantified
,
there appear
various debits and reference to invoices and save for several cryptic
endorsements eg
"
legal"
,
the
majority
of
such
debits
were
not
explained
nor
were
the invoices referred
to furnished
.
[45]
Further in
Weavind
,
the
learned judge referred to the
test
for
determining a liquidated amount of money as described by Corbett J in
Botha v
Swanson and
Company
(
Pty)
Ltd
1968
(2)
PH F85
(C)
as
:
'
[A]
claim
cannot
be
regarded
as
one
for
"
a
liquidated
amount
in
money
"
unless
it
is
based
on
an obligation
to
pay
an
agreed
sum
of
money
or
is
so
expressed
that
the
ascertainment
of
the
amount is a mere
matter of
calculation
'
The
learned
judge
,
in my
respectful
opinion
,
correctly
said
that
the
decision
as
to
whether
an
amount of a debt is capable of speedy and prompt ascertainment
is
a matter left
to the discretion of the court in each particular case
.
[46]
Furthermore
,
on the
authority of
Benson
and another v Walters and others
1984
(1)
SA
73
(A) at 868-C
,
the learned
judge said
that
'
an
attorney
'
s
cause of action for fees and disbursements accrued when his mandate
had
been
performed, and
not only
when
his bill of
costs has been taxed'.
Taxation
is not a
prerequisite to a client's liability. However, if a client insists on
taxation, the action cannot proceed until the bill
has been
taxed.
In the absence
of agreement
,
the appellant
has to render an itemised bill to be taxed from which the fairness
and reasonableness of its fees would
be
determined.
Absent
such
bill and
taxation
,
it
cannot be said
that such fees are reasonable. This would also compromise the
l
iquidity
of such claim.
[47]
Consequently
,
for the
reasons
that:
(a)
the
plaintiff
has
failed
to
demonstrate
that
it
complied
with
the
provisions
of
Magistrates
'
courts rule
14(2) for a summary
judgment
application;
(b)
the
particulars
of
claim are clearly excipiable;
and
(c)
the plaintiff
has failed to demonstrate
that its claim
is
for
a liquidated amount
,
the
learned
magistrate
in
the
court
a
quo
misdirected
himself
in
granting
summary
judgment.
[48]
The plaintiffs
counsel indicated that if the court was of the mind to allow the
appeal
,
that
it should consider directing that the costs of the appeal be costs in
the
c
ause
of the action
.
Despite the
defendant's attorney initially resisting this prayer
,
he eventually
conceded that it is a prudent course to follow as the court
ultimately determining the case will be
in
the best
position to make an award of costs that is just and
suited
to the
circumstances.
Order
[49]
In the result,
the following
order
shall issue
:
1
The
appeal
is
upheld;
2
The
costs
occasioned
by
the
appeal
will
be
costs
in
the
cause
of
the
action
;
3
The
order
granted
in
the
court
a
quo
on
11
th
June
2021
is
substituted
with
the following
:
'
1
The application for
summary
judgment
is dismissed
;
2
The defendant
is
given
leave
to
defend the
action
;
3
The costs of
the summary judgment application
are reserved
for determ
i
nation
by the court finally adjudicating over the trial of the matter.
'
Khan
AJ
I
agree
Sibiya
J
Attorney
for
the
appellant
MR C
.
ATHMAN
Appellant's
Attorneys
CLIFFORD
ATHMAN
ATTORNEYS
Counsel
for the respondent
MR M
.
STEWART
Respondent's
Attorneys
ERASMUS VAN HEERDEN
ATTORNEYS
Date
of hearing
7 October 2022
Date
of judgment
10 March 2022