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[2021] ZAGPPHC 410
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Mutale v Van Tonder (33282/2020) [2021] ZAGPPHC 410 (14 June 2021)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
No: 33282/2020
REPORTABLE:
NO
OF
INTEREST TO OTHER JUDGES: NO
REVISED:
NO
DATE
14 June 2021
In the matter between:
CONSTANCE
MUTALE
Applicant
and
JACOBUS
MICHIEL VAN
TONDER
Respondent
(This
judgment is handed down electronically by circulation to the parties’
legal representatives by email and by uploading
it to the electronic
file of this matter on CaseLines. The date for hand-down is
deemed to be 14 June 2021.)
JUDGMENT
MIA
J:
[1]
In the present matter, the applicant sought an
order on 9 March 2021 for the provisional sequestration of the
respondent in the
following terms:
“
1.
That the estate of the Respondent be placed under provisional
sequestration.
2.
The Respondent and any other party who wishes to avoid such an order
being made final to advance
reasons why such an order of
sequestration of the said estate should not be made final on 11
December 2020 at 10 h00 or soon after
as the parties may be heard in
the matter.
3.
The service of the order personally on the Respondent.
3.1
The Respondent's employees.
3.2
All trade unions of which the employees of the Respondent are
member's, if any;
3.3
On the Master;
3.4
On the South African Revenue Services.
4.
The costs of this application are costs in the
sequestration of the
Respondent's estate.”
The
respondent opposed the application. The matter was initially enrolled
on the urgent roll and was struck off for lack of urgency.
The matter
was subsequently enrolled on the opposed roll.
[2]
The applicant is a female accountant. She pursued
a law degree and
was in her fourth year of study of law at the University of South
Africa(UNISA)when the respondent employed her.
The respondent is an
attorney practising under the name of Mike Potgieter Attorneys. The
applicant signed a general contract of
employment with the respondent
whilst he was still practising as Potgieter Marais Attorneys. The
employment contract provided that
the applicant would be paid R7000
per month. She would work as a candidate attorney during her period
of employment.
[3]
Before accepting the general contract of employment, the applicant
had worked as an accountant for various small businesses and ran a
tuckshop to supplement her income. At some point, she had also
offered her accounting services to the firm Potgieter Marais
Attorneys at a reduced fee. However, the offer was not taken
up. The employment contract with the respondent was thus to support
her acquisition of practical legal knowledge to support her
theoretical legal studies to enable her to become a legal practioner.
[4]
Initially, the applicant continued working as a bookkeeper
during
weekends to supplement her income to cover all her living expenses.
Her salary as a candidate attorney in the firm did not
meet her
family’s needs. This arrangement also allowed time for her
clients to find an alternative bookkeeper. She eventually
discontinued offering bookkeeping services to her clients. She was
informed that she was required to commence doing the the respondent’s
bookkeeping when Mr Marais’ wife stopped doing so through her
company. The applicant commenced doing the bookkeeping for
the
respondent only after she was sent on a three-day course to
familiarise herself with the program utilised by the respondent.
[5]
According to the applicant, she worked under the supervision
of the
professional assistant Mr Britz as a candidate attorney. When Mr
Britz resigned, she was required to take over his files
and take on
new clients. The respondent did not employ a new professional
assistant in place of Mr Britz. The respondent did increase
the
applicant’s remuneration, and she was paid a higher salary of
in excess of R 15000 but was not paid a salary similar
to that of a
professional assistant. At that stage, the applicant was carrying the
increased workload after the departure of Mr
Britz, the complexity
which was beyond what she was qualified to attend to. She states she
acquitted herself well in her view as
there was positive feedback.
She also maintained the new client base well in her view.
[6]
As a result of the increased workload due to the increased
number of
clients, she was compelled to do the bookkeeping on weekends. She was
required to catch up with the backlog because of
the problems
experienced because the firm transitioned from one accounting package
to another and because the change in bookkeepers
was sudden, leaving
the respondent without a bookkeeper at short notice. She was busy
attending to her increased number of clients
during the typical
working day during the week. She had stopped assisting her previous
clients with bookkeeping and was thus able
to take on the bookkeeping
responsibility of the respondent's practice.
[7]
The applicant stated that the respondent saved funds by not
employing
a professional assistant to replace Mr Britz and transferred a lot of
the work to her. He did not pay her a professional
assistant’s
salary but increased her salary. He, however, did not pay her for the
bookkeeping function which she performed
after hours.
[8]
When the applicant demanded payment for her bookkeeping function,
the
respondent demanded the return of the computer and took it to an
unknown location. She no longer continued with the bookkeeping
function. The respondent did not reduce the applicant’s salary
after she stopped the bookkeeping duties. The respondent thereafter
employed Ms Belinda Senekel of Adminfix to attend to the bookkeeping
function. Ms Senekel charged R650 per hour. She left upon
discovering
that the applicant had a degree in accounting. After that, the
applicant employed Ms Anosjka Tecklenberg.
[9]
The respondent terminated the applicant’s general contract
of
employment in April 2020 due to a lack of finances and referred to a
previous instance of insubordination. The applicant states
the
termination was because she demanded payment for the bookkeeping work
she had completed. She sent a letter of demand for the
work
completed. The matter was referred to the CCMA, where the applicant
refused to participate in conciliation, alleging that
she was
unfairly dismissed. The ruling made was that since the applicant was
dominus litis,
she could refer the matter to the Labour Court,
where she alleged unfair dismissal.
[10]
The issues for determination in the present matter are:
1.
whether the applicant’s claim is liquid or not?
2.
whether the applicant has established sufficient grounds for relief
as set out in her prayers in
the notice of motion.?
[11]
Section 9(1) of the Insolvency Act(the Act) provides:
“
Petition
for sequestration of estate.
—(1) A
creditor (or his agent) who has a liquidated claim for not less than
fifty pounds, or two or more creditors
(or their agent) who in the
aggregate have liquidated claims for not less than one hundred pounds
against a debtor who has committed
an act of insolvency, or is
insolvent, may petition the court for the sequestration of the estate
of the debtor.”
[12]
In
Kleynhans v Van Der Westhuizen NO
1970 (2) SA 742
at 749F
the Court stated
“
Die bevinding
dat appellant die bedrag van R150,000 gesteel het, is tegelykertyd 'n
onbetwisbare bepaling van die bedrag
van respondent se vordering
gegrond op die betrokke onregmatige daad. Die blote feit dat 'n
vordering betwis word is nie afdoende
wat likwiditeit betref nie -
daar moet gelet word op die aard en omvang van die geopperde
geskilpunte. Kyk, o.m., Ford Brothers
v Clayton,
1906 T.S. 205
te bl.208, en Ex parte Berson,
1938 W.L.D. 107
te bl. 115.”
TRANSLATION:
“”
The
finding that appellant stole the amount of R150,000 is at the same
time an indisputable determine of the amount of respondent’s
claim based on the wrongful act in the question. The mere fact that a
claim is disputed is not conclusive as to equity- the nature
and
extent of the issues raised must be taken into account. See, o.m,.,
Ford Brother v Clayton,
1906 T.S 205
and p. 208, in Ex parte Berson,
1938 W.L.D 107
and p.115”
[13]
It is trite that a
sequestration order may be granted on two grounds in terms of the
Insolvency Act namely:
(a)
the commission of an act of insolvency;
(b)
factual insolvency;
There
are certain factors or circumstances that are usually relied upon to
determine an act of insolvency. These include, among
them, a
nulla
bona
return
or an inability to pay one’s debts. When it comes to inability
to pay, the debtor must evidence an inability to pay
the debt rather
than an unwillingness or refusal to pay the debt.
[1]
[14]
Ms Mutale submitted that the application
was for sequestration of the respondent's estate for a liquidated
account for 2017 until
September 2019. She submitted that the
applicant took over the bookkeeping function performed previously by
Mrs Marais, the wife
of the previous partner of the firm Marais
Potgieter Attorneys. She submitted that the agreement that the
applicant would take
over the bookkeeping function was oral. She
submitted furthermore that the budget was to come from the previous
budget allocated
to the previous bookkeeper namely Mrs Marais.
[15]
Ms Mutale continued that when it was apparent that she had a
Bachelor’s
degree in accountancy, Mrs Marais refused to
continue doing the respondent’s bookkeeping. She was then
informed to take over
the bookkeeping. She was expected to
create time for the accounting function and was to be paid
separately. She commenced
with the books in March 2017. She was not
paid in March 2017 or in April 2017 for bookkeeping services as
she stated she
received the same salary. She explained the reason was
due to the respondent still paying Mrs Marais at that stage while she
was
doing the bookkeeping. The accounting work was done outside of
office hours. She submitted that a salary increase took place in
June
2017. She argued that the R7000 catered for the debt collections,
which was not complicated. She argued that the salary increases
were
for the increased responsibilities in the office unrelated to the
bookkeeping, and therefore she received an increase to R9000.
[16]
She submitted that she attended
consultations and argued that she ran the litigation department. She
maintained that the amount
was a liquidated amount and was an amount
for the services similar to the claim submitted by Mrs Marais. She
claimed that after
the accounting was done, the respondent could
obtain his Fidelity Certificate based on the bookkeeping services she
rendered. She
issued a letter of demand after requesting payment over
several months. She stipulated in the letter of demand the work done
and
the amounts charged in Annexure “CM 1” for March 2017
to September 2019. She argued that the liquidated amount she
established by determining how much the respondent paid Ms Senekal
and Mrs Marais. She submitted that the contract was concluded
verbally in February 2017, and this was for separate payment for
bookkeeping services.
[17]
In the founding affidavit, the applicant indicated that she was
caused to attend
a course to take over the bookkeeping function.
There appears to be no agreement but appears to be a compulsion or an
agreement
she entered into without clarifying the terms of payment.
The applicant thus relied on the payment to Mrs Marais and the
payment
rate of Ms Senekal. This differs from the offer made by the
applicant. She submitted that the rate could not have been known
because
she did not know the extent of work required. This submission
does not indicate clarity with regard to a rate but merely indicates
the lack of clarity with regard to the extent of work to be
completed. It does not assist the applicant in proving the liquidity
of the claim. Both rates are in any event different to the rate that
she quoted the first time she approached the firm.
[18]
Ms Laas referred to the rule in
Plascon-Evans Paints Ltd v Van
Riebeeck Paints (Pty) Ltd
[1984] ZASCA 51
;
1984 (3) SA 623
(A). She submitted that
matters in motion court are to be decided on the facts, which are a
common cause. The applicant could not
obtain relief where the
indebtedness is in dispute. Where there is a dispute, the summons
issued by the applicant must go to trial,
and there must be a
determination whether there is any amount due to the applicant or
not. If there is a determination that she
is entitled to further
remuneration, then she may proceed.
[19]
However, Ms Laas argued that the respondent denied that such debt was
due.
It was the respondent’s version that the applicant was an
employee who was paid for her work according to their signed
agreement.
She took on the accounting function at some point, and she
was remunerated accordingly. Ms Laas pointed out that bookkeeping was
part of an attorneys' function, and as such, the applicant was
exposed to this aspect as well. She continued that the
applicant’s
salary was increased over some time for the
services she rendered.
[20]
She submitted that proceedings for the compulsory sequestration of a
debtor’s
estate might be instituted by a single creditor who
has a liquidated claim in terms of section 9 of the
(
the Act)
The meaning “liquidated” in the context of the Act
required that the amount must be fixed and determined either
by
agreement ( actual or implied), by judgment or otherwise. She
referred to,
Braithwaite v Gibert (Volkskas BPK Intervening)
1948 (4) SA 717
(W) where the court states at p 721:
“
The following
remarks of Murray J in
Ex parte Berson; Levin and Kagan v Berson
1938 WLD 107
at 115 seems to me to be particularly apposite herein:
“
Though a debt
is not liquidated merely because it neither rest upon a judgment nor
is admitted by the debot, yet when the debt is
disputed it cannot be
regarded as liquidated where as in this case its establishment
obviously depended upon the determination
of a number of questions of
fact in dispute between the parties themselves and the consideration
of contradictory evidence as to
the nature of requisite services and
the extent of a reasonable fee. If disputed, the debt is not
liquidated unless capable of
easy and speedy proof (Treasurer General
v Van Vuuren
1905 TS 589).
Its accuracy must be capable of being
clearly and promptly established
(Ford Bros v Claxton 1906 TS at 208)."
[21]
Ms Laas argued that the applicant based her claim on the letter of
demand in
which she inserted specific amounts. She disputed the
amount and reasoned that it was not evident whether the claim is
contractual,
delictual, or some other ground of liability. She
continued that the amounts were not agreed upon and were not
determined by judgment
or otherwise. She argued that the applicant
stated that she calculates the fees based on a rate which she avers
is lower
than a market rate but did not disclose this rate. This
undisclosed rate Ms Laas submitted was not a liquidated claim and,
moreover,
was not an agreed rate. In her submissions to the court, Ms
Laas submitted, the applicant reasoned that the amount was
ascertainable
and was not known before because she did not know
before she undertook the bookkeeping the number of hours she would
invest in
completing the required work. When regard is had to
Annexure “CM 1”, Ms Laas pointed out that the applicant
claimed
round amounts and increased the amounts when it suited her.
This was precisely indicative of the lack of agreement between the
applicant and the respondent. She continued that the statement does
not reflect an hourly rate and how many hours of work was completed.
Thus she submitted that even if this court were to adopt the position
that the liquidated amount was to be calculated by the agreed
rate
and amount of hours worked as a liquidated amount can be a readily
ascertainable amount. In this instance, this was not possible
as the
rate was undisclosed.
[22]
Ms Laas continued further to submit that regarding the applicant's
claims,
she issued the letter of demand and concluded thereby that
she has a liquidated claim. There is no mention of an agreement in
the
letter of demand. It is a mere demand with an arbitrary amount.
The respondent replied to that demand and denied the content thereof.
He denied that she has a claim. He raised the basis of the claim and
pointed out that this is a wish on her part rather than an
agreement
between the parties. The applicant's basis of a claim is the
agreement that commenced at R7000, which increased to R9000
and
subsequently increased further. The respondent indicated that the
applicant was not employed as a bookkeeper in the firm, but
that
bookkeeping was part of the experience required as an attorney, the
applicant was exposed to this area. At the end of her
employment she
was earning R15 900.
[23]
Ms Laas points out that the applicant in her papers attaches
correspondence
where she points out that she believed that it would
serve her to do the respondent’s bookkeeping for a mere trifle,
and
this is also echoed in the letter of introduction when she
introduced her bookkeeping service to the firm. She said she would
charge
next to nothing. Ms Laas submitted that she was not paid next
to anything but was paid her salary. Ms Laas continued that the
applicant’s
application was conspicuously lacking in invoices
rendered to the respondent for the period that the applicant alleges
she attended
to the bookkeeping as per the verbal agreement. She was
under no obligation to continue with the bookkeeping if the verbal
agreement
was not adhered to. She was under no obligation to remain
with the firm. Despite not being paid on her version, she remained
with
the firm. She continued to work with the accounts, and she
continued to accept the increases given to her over some time that
she
was with the respondent. This indicated that there was no
agreement as suggested by the applicant. Instead, the applicant was
paid
in terms of the agreement initially concluded and was given
increases as her workload increased.
[24]
Ms Laas submitted that the applicant then introduced elements of a
claim for
unjust enrichment by suggesting that the respondent saved
money by not employing a bookkeeper. The respondent maintains that he
increased the applicant’s remuneration over some time. The
applicant has issued a summons, and the respondent has defended
the
action. This all suggested that the applicant’s claim is not
liquidated. She persisted after receiving the answering
affidavit.
The case law referred to
Standard bank v Renico
Construction
(Pty) Ltd
(2011/33789) [2012] ZAGPJHC 287;
2015 (2) SA 89
(GJ)
does not support her case and neither does the case of
Phillips v
Phillips
(292/2018) [2018] ZAECGHC 40 which indicates no
trialable issues should be outstanding. She filed a supplementary
affidavit which
did not support her case. She was advised from
the outset that the claims were contested, and yet she persisted.
She, therefore,
requested that the application be dismissed with
costs on the attorney and client scale.
[25]
In reply, Ms Mutale was unable to point out the terms of the verbal
agreement.
However, she maintained that the accounting agreement was
auxiliary. She submitted that if this court accepts an auxiliary
agreement
that the respondent requested the applicant to take over
the files, then the applicant should succeed. On the other hand, if
the
court does not accept an auxiliary agreement to take over the
bookkeeping function, then the application should fail.
[26]
Having regard to the submissions and the evidence, the applicant was
unable
to prove the auxiliary agreement that she referred to. She
argued this was a verbal agreement, but there is no indication about
the terms of the agreement. There is no indication of the date
and time when the discussion took place and the rate she would
charge. If indeed the rate was agreed upon, then the respondent would
have become a client as her previous clients. It would have
been
expected that she would have invoiced the respondent every month. She
argued that she did not know the extent of the work
when she took on
the responsibility. This might be so. However, once she has undergone
the training to familiarise herself with
the accounting package, she
would have completed work every month after hours as she usually
completed work in the past for her
previous clients. She did not
invoice the respondent each month as she completed work. She argued
that the increased salary was
for the increased workload she assumed
because Mr Britz resigned, and she took on the extra
responsibilities. If she accepted that
the increased amount was for
the increased responsibilities related to paralegal work, she ought
to have invoiced the respondent.
She did not do so for over two
years. She also now calculates her rate on an average between
Mrs Marais and Ms Senekal. Ms
Senekal only took on the books later.
Thus it is opportunistic to suggest the rate was based on these two
rates. This also contradicts
the suggestion that there was an
agreement in February 2017 as Ms Senekal was not yet appointed
at the time the applicant
contends the agreement took place for her
to do the bookkeeping.
[27]
Both parties referred to the matter of
Plascon-Evans above.
It is agreed and trite that “
in proceedings on notice of
motion where disputes of fact have arisen on the affidavits, a final
order, whether it be an interdict
or some other form of relief, may
be granted if those facts averred in the applicant's affidavits which
have been admitted by the
respondent, together with the facts alleged
by the respondent, justify such an order. The power of the Court to
give such final
relief on the papers before it is, however, not
confined to such a situation. In certain instances, the denial by the
respondent
of a fact alleged by the applicant may not be such as to
raise a real, genuine or bona fide dispute of fact ... where the
allegations
or denials of the respondent are so far-fetched or
clearly untenable that the Court is justified in rejecting them
merely on the
papers
”.
[28]
In the present matter, the applicant’s claim is not liquidated.
She relies
on an auxiliary agreement. She seeks to have the amount
calculated based on the rate paid to the previous bookkeeper and the
last
bookkeeper appointed by the respondent. She had issued a letter
of demand, but it is not clear on what basis her rate is calculated
in the letter of demand. There are increases from time to time, and
this is disputed. By all accounts, this is not a liquidated
claim in
that the amount has not been fixed, agreed upon or determined by a
court. The applicant has issued summons against the
respondent, which
may yield an amount that she could issue sequestration proceedings
upon if she is successful and the amount remains
unsatisfied.
[29]
In
Braithwaite above,
the court said:
“
The matter was put
as follows by Murray J in Berson’s case supra at 114-115:
“
Where the
probabilities favour the creditor’s contention of the existence
of a claim of the necessary extent, but disputed
by the debtor, the
Court would no doubt follow the principle of Mahomed v Malk
1930 TPD
615
and give the debtor an opportunity of leading vive voce evidence
if such could possibly disturb the balance of probabilities as
appearing on the affidavits. Where, however, there is no such balance
of probabilities favouring the creditor it does not seem
to me that
the Court should afford the creditor the opportunity of bringing viva
voce evidence in a case when from the affidavits
it is obvious that
the creditors claim is not one based on an obvious and ascertainable
legal claim which is capable of quick and
ready proof (Wessels
Contract vol I 2548). In Tomkin (Pty) Ltd v Bauer
1931 TPD 292
the
Court allowed a creditor, against whom the balance of probabilities
lay, to adduce viva voce evidence to establish an act of
insolvency.
I think a different principle applies where it is not an act of
insolvency, but the existence of the creditor’s
necessary
liquidated claim, which is in dispute. The former can only be
established in sequestration proceedings: the proper method
of
establishing the latter is a separate action on the claim preparatory
to the invocation of the Insolvency Act. This view is,
I think, in
accordance with the judgments in Minooden v Attard
1933 TPD 281
and
Els v Brest
1931 EDL 2.
"
[30]
The applicant’s claim is not liquidated as I have indicated
above because
it is not agreed upon, is not capable of being
ascertained and was not determined by the court. It is not capable of
ascertainment
as the auxiliary agreement referred to by the applicant
does not refer to an agreed-upon rate. Thus, the applicant seeks the
court
to impose a rate upon two contracting parties if indeed there
was a contract for bookkeeping services that flies in the face of
the
parties’ freedom to contract. The applicant’s claim
requires a separate action that is preparatory to the invocation
of
the Insolvency Act. I am of the view that where the claim is disputed
by the respondent any order and referral to oral evidence
is
unwarranted.
[31]
I move now to the order of costs. Ms Laas submitted that a punitive
order for
costs was warranted if the application was dismissed. This
was because the application was opposed, and the applicant was warned
from the outset that she did not have a liquidated claim. She
persisted with her claim in the urgent court, where costs were
awarded
against her and then continued to the motion court knowing
that the application was opposed. The applicant persisted with her
application
and appears resolute that she is correct in her
interpretation of the law. She has a law degree has experience in
debt collection
with little other experience. She has also taken the
route of arguing her matter, and it follows that she is emotionally
involved,
invested and does not view the matter with the impartiality
of a legal representative who is not emotionally invested. For this
reason, I do not intend to visit a punitive costs order upon
the applicant. The usual costs order will follow.
ORDER
[32]
For the reasons above, I grant the following order:
1. The
application is dismissed.
2.
The
applicant to pay the costs.
S
C MIA
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
APPEARANCES:
Appearance
for the applicant
: C
Mutale
africaindependantmagazine@gmail.com
Appearance
for the respondent
: Ms AM
Laas
Instructed
by
:
Laas Doman Inc.
Laas-am@law.co.za
Date
of hearing
:
9 March 2021
Judgment
Reserved On
: 9 March
2021
Date
of judgment
:
14 June 2021
[1]
Barlows
(Eastern Province) Ltd v Bouwer
1950(4)
SA 385(E) at 390C;
Optima
Fertiliser (Pty) Ltd v Turner
1968 (4) SA 29
(D) at 33C;
Court
v Standard bank of South Africa Ltd; Court v Bester NO
[1995] ZASCA 39
;
1995
(3) SA 123
at 134 A-B