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[2021] ZAECELLC 6
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Magqabi v Metu (632/2019) [2021] ZAECELLC 6 (23 March 2021)
IN THE HIGH COURT OF SOUTH AFRICA
(EAST
LONDON CIRCUIT LOCAL DIVISION)
CASE
NO: 632/2019
Matter
heard on: 11/03/2021
Judgment
delivered on: 23/03/2021
In
the matter between:
PYTHAGOROS
VUYISILE MAGQABI
Applicant
and
BABALO
METU
Respondent
JUDGMENT
SMITH
J
:
[1]
The applicant applies for the rescission of a judgment granted by
Toni AJ on 10 December 2019, in terms of which
he was ordered to pay
the sum of R287 143 (and costs of the suit) to the respondent.
The respondent’s claim related
to fees which were allegedly due
to him in respect of several matters in which he was instructed as
counsel by the applicant, a
practising attorney.
[2]
When the matter was set down for the hearing of the respondent’s
application for default judgment, the
applicant was given due notice
and he filed a substantive application opposing the granting of the
order. In his supporting affidavit
in that application, the applicant
explained the circumstances in which he failed to file his plea
timeously and also purported
to proffer a defence to the plaintiff’s
claim.
[3] Both parties
were represented by counsel at the hearing. After hearing argument,
Toni AJ dismissed the applicant’s
objection to the granting of
default judgment and granted judgment in favour of the respondent.
[4]
The rescission application is brought in terms of rule 31 of the
Uniform Rules of Court. The question accordingly
arises as to whether
the applicant was entitled to challenge the default judgment by way
of rescission application or if it was
incumbent on him to lodge an
appeal against that judgment. Mr.
Matanda
,
who appeared for the respondent, argued that since the applicant’s
objection to the application for default judgment had
been fully
argued before Toni AJ and the latter had pronounced on the merits of
that objection, it was not open to the applicant
to seek a rescission
of that judgment. He should instead have appealed the judgment and
Toni AJ’s ruling, or so he argued.
[5]
There is indeed great merit in this submission. First, the default
judgment was not granted in the absence of the
applicant, and second,
the merits of the applicant’s explanation for his default and
the issue as to whether he had established
a bona fide defence to the
plaintiff’s claim, had been fully ventilated before Toni AJ. It
seems to me that in the circumstances
the application for rescission
will require me effectively to sit on appeal of Toni AJ’s
judgment. It is trite that I am
not at liberty to do so where proper
procedures have not been followed and a court of appeal has not been
properly constituted
in terms of the court rules.
[6]
In the event, in my view the applicant has failed to establish one of
the crucial grounds for rescission, namely
a bona fides defence to
the plaintiff’s claim. In fairness to the applicant, I shall
quote his contentions in this regard
in full.
[7] In paragraph 4.4 of
his affidavit he states the following:
“
(a) At all
times I have been acting as agent on behalf of clients.
(b) When the
respondent was briefed, the plan was an express (though verbal)
understanding that these are contingency fee agreement
matters and
will be attended only upon successful completion thereof.
(c) That the fees
are exorbitant so as to amount to an overreach and have been referred
to the LPC for determination.
(d) The respondent
himself terminated the briefs unilaterally without reason.”
[8]
The applicant’s contention that because he was acting as agent
on behalf of his clients he is somehow absolved
him from his
responsibility to pay the fees of the advocate whom he had instructed
to represent his clients, is untenable. Mr
Ntlokwana
,
who appeared for the applicant, has conceded that by instructing the
respondent as counsel, the former had assumed responsibility
for the
fees in his capacity as instructing attorney.
[9]
And the fact that he may have acted in terms of contingency fee
agreements with his clients also does not absolve
the applicant of
the legal responsibility to pay the respondent’s fees. He does
not assert that he had reached agreement
with the respondent that he
would act on a contingency basis and would require payment only once
the matters had been successfully
concluded. His assertions in this
regard can at best for him be interpreted as meaning that there was
“a plan” for
him to enter into such an agreement with the
respondent. In addition, apart from bald and vague assertions in this
regard, he has
not provided any details of such agreements.
[10]
The averments regarding the contingency fee agreements are also
incompatible with the applicant’s assertion
that the fees were
exorbitant and had been referred to the Legal Practise Counsel for
taxation. This of course begs the question
as to why it was necessary
for him to refer the fees for taxation when he was of the view that
at that stage he was not liable
to pay the respondent. In the event,
the referral of the fees for taxation would at best be a dilatory
defence, which would mean
that the applicant accepts that he owes the
respondent some fees in respect of the matters. In addition, it is
instructive that
the founding affidavit was attested to in December
2019, and more than a year later he still has not produced any
evidence of such
a referral or the outcome of the taxation. I am
accordingly of the view that this assertion does also not avail the
applicant in
establishing a defence to the respondent’s claim.
[11] Regarding the assertion that he
is somehow absolved from paying the respondent because the latter has
terminated the briefs
unilaterally and without reason, Mr.
Ntlokwana
was constrained to concede that this cannot constitute a defence to
the applicant’s claim.
[12]
The applicant’s explanation for his failure to file a plea
timeously was also singularly unsatisfactory.
However, I need say no
more about that issue since his failure to establish a bona fide
defence to the applicant’s claim
is in any event fatal to his
application.
[13]
Mr
Matanda
has argued that the applicant’s conduct in unduly delaying the
execution of the default judgment warrants a punitive costs
order. He
was, however, unable to provide compelling grounds for this
assertion. In my view costs should be awarded on the ordinary
scale.
[14]
In the result the following order issues:
a)
The application for rescission is dismissed
with costs.
__________________________
J.E. SMITH
JUDGE
OF THE HIGH COURT
COUNSEL FOR
APPLICANT:
Adv. L.D.
Ntlokwana
ATTORNEYS FOR
APPLICANT: Magqabi
Seth Zita Attorneys
9
St Georges Street
Southernwood
East
London
COUNSEL FOR
RESPONDENT:
Adv.
E.M. Matanda
ATTORNEYS FOR
RESPONDENT:
M.P. Ncame Attorneys
Office
No. 1
Mantis
Business Centre
14
Byron Street
East
London