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[2018] ZAGPPHC 832
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Fasken Martineau t/a Bell Dewar Inc v Roux Consolidated Investments (Pty) Ltd (50593/2017) [2018] ZAGPPHC 832 (23 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
HIGH COURT, PRETORIA)
Case
No: 50593/2017
In
the matter between:
FASKEN
MARTINEAU t/a BELL DEWAR INC
PLAINTIFF
and
ROUX
CONSOLIDATED INVESTMENTS (PTY) LTD
DEFENDANT
JUDGMENT
NGOBENI,
AJ:
[1]
The Plaintiff in this matter is Fasken
Martineau trading as Bell Dewar Inc, a personal liability company
duly incorporated and registered
(Registration No.1995/004675/21) in
terms of the company allows of the Republic of South Africa, having
its principal place of
business at Building No.2, Inanda Greens
Office Park, 54 Wierda Road West, Sandton, Gauteng.
[2]
The Defendant is Roux Consolidated
Investments (Pty) Ltd, a private company duly incorporated and
registered (Registration No. 2004/011530/07)
in terms of the company
laws of the Republic of South Africa, having its registered address
at 5 Alexandra Road, Irene, Centurion.
[3]
The Plaintiff in this matter brought a
summary judgment application in terms of section 32 of the Uniform
Rules of the High Court
pursuant to an action he instituted against
both the Defendant in the amount of R1 484 665, 74 being the balance
due, owing and
payable in respect of professional legal services
rendered and disbursements incurred by the plaintiff for an on behalf
of the
defendant, at the latter's request, over the period November
2014 too much 2017.
[4]
In
view of the allegations made by the plaintiff per the particulars of
claim which are not denied, as well as averments made by
the
defendant in its opposing affidavit and the submissions by the
counsels during argument of the matter, the following appears
to be
common cause:
4.1
The parties entered into an agreement
during the period mentioned that inter alia the plaintiff was to
draft a sale agreement in
respect of the farm Groothoek 106 KS
(HEREINAFTER CALLED THE PROPERTY), attend to transfer the property,
and to attend to the cancellation
of any bonds over the property.
4.2
The plaintiff performed as agreed to in
paragraph 4.1 above.
[5]
It appears from the particulars of claim
that the plaintiff relies on a written agreement coupled with written
service terms which
have not been signed by the defendant. The
plaintiff submitted further that the defendant failed to comply with
the provisions
of rule 32(3) read with in that its affidavit is
defective thereby rendering the application unopposed for the
commissioner
of oaths failed to state his designation and the area
for which he holds his appointment or the office held by him in
circumstances
where he holds his appointment ex officio.
[6]
In its defence the defendant challenges
the existence of the written agreement coupled with the return
service terms however alleges
that there was a verbal agreement
between the parties subject to fees chargeable by the plaintiff being
taxed by the law society
of South Africa.
[7]
In the main the defendant avers that the
plaintiff's claim does not comply with the provisions of rule 32(1)
in that the claim is
not liquidated for the plaintiff is a firm of
attorneys who supplied untaxed professional fees to a lay client.
[8]
Rule 32 (1) (b) of
the Uniformed Rules of the High Court provides that: "Where the
defendant has delivered notice of intention
to defend, the plaintiff
may apply to court for summary judgment on each of such claims in the
summons as is only - (b) for a liquidated
amount
in
money;"
[9]
A liquidated amount in money is an
amount which is either agreed upon or which is capable of speedy and
prompt ascertainment. The
decision is a matter left to the discretion
of the court in each particular case. Lester Investments (Pty) Ltd v
Narshi
1951 (2) SA 464
(c).
[10]
There is a dispute of fact as to what
the terms of agreement were regarding payment of the plaintiff's
claim.
[11]
In deciding whether the plaintiff as a
liquidated claim or not I am guided by the fact that the
agreement and service
terms attached to the particulars of claim
relied upon by the plaintiff is unsigned by the defendant. The last
but one paragraph
of the unsigned contract reads as follows: "please
sign and return a copy of this letter to confirm your
agreement to the terms of this letter". Just above
where the representative of the defendant Mr Roux Shabangu was
supposed
to have signed the following words have been endorsed: "We
confirm our agreement to the terms of this letter:"
[12]
It is clear that the terms of agreement
as averred to by the plaintiff in its particulars of claim were not
agreed upon. Any performance
by the plaintiff is not subject to the
said agreement.
[13]
I am not satisfied that the plaintiff
has a liquidated claim against the defendants and in particular that
his claim is
due.
[14]
I am satisfied that the facts presented
by the defendant, if they were presented at the trial they will
constitute a defence or
an answer to the plaintiff's claim.
[15]
It cannot be said that the defendant
entered appearance to defend to delay the process. It is clear that
the defendant intends paying
the plaintiff as soon as the bill has
been taxed by the law society.
[16]
I return to a consideration of the
argument that the affidavit is defective.
[17]
Rule 32 (3) "Upon the hearing of an
application for summary judgment the defendant may - (b) Satisfy the
court by affidavit
(which shall be delivered before noon on the court
day but one preceding the day on which application is to be heard) or
with the
leave of the court by oral evidence of himself or of any
other who can swear positively to the fact that he has a bona fide
defence
to the action; such affidavit or evidence shall disclose
fully the nature and grounds of the defence and the material facts
relied
upon therefor."
[18]
The point raised involves a
consideration in the first place of the regulations governing the
administration of an oath or affirmation.
They are published under
Government Notice R1258 in Government Gazette Extraordinary of 21
July 1972. The empowering legislation
is s 10 of the Justices of the
Peace and Commissioners of Oaths Act 16 of 1963. It was common cause
that the more recent regulation,
as published under Government
Notice R1648 in Government Gazette Extraordinary 5716 of 19 August
1977, namely reg 4 (2),
which substitutes the old reg 4 (2), is not
applicable to the present matter.
[19]
The
regulations make provision for broadly two types of declarations. The
one is where the contents of the declaration are sworn
(by means of
an oath) to be the truth. The other is a declaration which is
affirmed to be correct. These matters are dealt with
in ss 1 and 2 of
the regulations. Section 3 requires that the deponent shall sign the
declaration in the presence of the commissioner
of oaths and it also
provides for those cases where a deponent cannot write. Then follows
s 4 which provides: "(1) Below the
deponent's signature or mark
the commissioner of oaths shall certify that the deponent has
acknowledged that he knows and understands
the contents of the
declaration and he shall state the manner, place and date of taking
the declaration. (2) The commissioner of
oaths shall sign the
declaration and state his designation and the area for which he holds
his appointment or the office held by
him if he holds his appointment
ex officio.11
[20]
The requirements as contained in
regulations 1, 2, 3 and 4 of Government Notice R.1258 of 21 July 1972
and published in terms of
section 10 (1) of the Justices of the Peace
and Commissioners of Oaths Act, 16 of 1963, are not peremptory but
merely directory.
In a suitable case, where the requirements have not
been complied with, the court may refuse to accept the affidavit
concerned
as such or to give any effect to it. The question should in
each case be whether there has been a substantial compliance with the
requirements (S v Msibi 1974(4) SA 821(T)). Whether there has been
such 'substantial compliance' is a matter of fact, not of law.
It is
in this light that the Court has, in my view,'discretion' to refuse
to receive an affidavit attested otherwise than in accordance
with
the regulations, depending upon whether substantial compliance with
the regulations has been proved or not.
[21]
The doors of the Court should be closed
to a defendant only if 'there is no doubt that the plaintiff has an
unanswerable case'.
Having regard to what I have pointed out above I
think that the court should condone a failure to comply with a
technical requirement
that the commissioner of oaths failed to state
his designation and the area for which he holds his
appointment or the
office held by him in circumstances where he holds
his appointment ex officio.
[23]
I accordingly make the following order:
1.
The application for Summary judgment is
dismissed;
2.
The Defendant is granted leave to defend
the action; and
3.
The Defendant must submit its plea
within 5 business days of this order, failure which it will be barred
from doing so; and Costs
of this application are costs in the cause.
NGOBENI
AJ
ACTING
JUDGE OF THE HIGH COURT