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[2016] ZAFSHC 72
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Thatheng t/a Sheriff of Witsieshoek v Balden Vogel and Vennote Inc. Attorneys and Another (5508/2015) [2016] ZAFSHC 72 (12 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
No: 5508/2015
In
the matter between:-
DIKOTSI
J THATHENG t/a SHERIFF OF
WITSIESHOEK
PLAINTIFF
and
BALDEN
VOGEL & VENNOTE INC. ATTORNEYS
1
ST
DEFENDANT
MALUTI-A-PHOFUNG
LOCAL MUNICIPALITY
2
ND
DEFENDANT
CORAM:
MOLOI, ADJP
HEARD
ON:
06 MAY 2016
DELIVERED
ON:
12
MAY 2016
MOLOI,
ADJP
[1]
In this matter the plaintiff, a sheriff for the district of
Witsieshoek, issued summons against the defendants. The first
defendant
is a law firm that acted for and on behalf of the second
defendant in the matter of eviction of a number of unlawful occupiers
of the land belonging to the Second defendant, a municipality. The
summons was a claim for payment of an amount of R453 185-00
allegedly being fees and charges owing to the plaintiff for services
rendered in connection with the eviction of the unlawful occupiers.
[2]
The defendants took exception to the summons in terms of Rule 23(1)
of the Uniform Rules of court in the following terms:
“
1.
According to the Plaintiff the Plaintiff submitted original returns
of service in the amount of R453 185-00
to the first Defendant
on 24 July 2015.
2.
Plaintiff does not allege that the amount as claimed was agreed upon
or taxed.
3.
Whereas the amount as claimed has not been agreed or taxed the
Plaintiff was not entitled to proceed
with the action against
Defendants.
4.
In the premises Plaintiff’s Particulars of claim lacks
averments in order to sustain any
cause of action.”
[3]
In argument before me and in terms of the heads of argument the same
was argued. Par.1.3 of the heads of argument state:
“
Defendants
raised the exception against the Plaintiff’s Particulars of
Claim on the basis that the Plaintiff does not allege
that the amount
as claimed was agreed upon or taxed. Whereas the amount as claimed
has not been agreed upon or taxed the Plaintiff
was, according to the
Defendants, not entitled to proceed with the action against the
Defendants. Therefore the Plaintiff’s
Particulars of Claim
lacks averments in order to sustain a cause of action.”
[4]
Rule 23(1) provides for a mechanism of filing an exception where a
pleading, a summons or a plea, is vague and embarrassing
or where it
lacks averments which are necessary to sustain an action or defence.
The latter is normally said to be showing no cause
of action or
defence. “An exception provides a useful mechanism for weeding
out cases without legal merits” Erasmus,
Superior
Court Practice
, 2
nd
edition Vol. 2 D1-294.
H v Fetal
Assessment Centre
2015(2) SA 193 (CC)
at 1998;
Telematrix (Pty) Ltd t/a Matrix
Vehicle Tracking v Advertising Standards Authority
SA
2006 (1) SA 461
(SCA)at 465H. A summons that does not disclose a
cause of action or lacks averments necessary to sustain it goes to
the decision
on a point of law without which the whole cause or part
thereof may be disposed of without leading unnecessary evidence at
the
trial.
Santos v Standard General
Insurance Co
Ltd.
1971 (3) SA 434
(O)
at 437B;
Dharumpal Transport (Pty) Ltd v
Dharumpal
1956 (1) SA 700
(A) at 706E
[5]
The cause of action in this matter is aptly captured in the
introduction to the heads of argument by the defendants where
defendants
state as follows:
“
1.1
Plaintiff instituted action against the Defendants for the payment of
the amount of R453 185,00 in regards
to the eviction of numerous
illegal occupiers in the HARRISMITH region pursuant to a High Court
order.”
That
to my mind is sufficient cause of action and contains all the
elements of a claim and no further averments are required to
sustain
the cause of action. The defendants’ requirement that the claim
further state that “
as agreed upon or taxed”
misses the point by a long distance. What became obvious to the court
is the boiling animosity between the plaintiff, who represented
himself and is not a legal practitioner, and Adv Hefer, who
represented the defendants on the one hand and which spilled over to
taint the court itself when it endeavoured to solve the dispute in
chambers, on the other, does not lend itself to any agreement
on the
fees and charges payable to the plaintiff for services rendered. What
remains, surprisingly, is the insistence of Adv Hefer
to the second
part of taxation of the plaintiff’s return of service where he
himself in the heads of argument refers and
quotes from
Chapman
Dyer Miles Moorehead Inc v Hymark Investments
,
1998 (3) SA 603
(D) at 610 D-E where it was categorically stated that taxation is not
a prerequisite for the institution of the action on a bill
of costs
where such costs have not been agreed. Adv Hefer further referred
to
Santam v Ethwar
1999(2) SA 244 (SCA) at 253 D-E where it was
stated that:
“
Any
summons claiming payment of costs not agreed upon or not taxed would
have been met by a successful exception.”
Adv
Hefer, however, failed to appreciate the context of that quotation
and distinguish it from the present case. In
Santam v Ethwar
the claim for costs was based on an offer of settlement providing
that the plaintiff’s costs would be payable “
as taxed
or agreed between the parties”
which offer was accepted and
thus formed the basis of any claim of costs. In
Santam v Ethwar
at 253 B-C the following was said:
“
Whether
the respondent could have enforced compliance with clause (c) in the
absence of an agreement or taxation depends on whether,
on the one
hand, agreement or taxation simply formed the formal method of
liquidating and quantifying the amount of the indebtedness
or
whether, on the other, it was an agreed condition for payment or that
payment was contingent thereon. Put differently, was agreement
or
taxation a simple procedural step to or was it of the essence of
liability.”
Clearly
this was not the case here. It was never agreed that only the sum
agreed upon or determined by taxation could be recovered
by way of
summons. If such agreement existed, it would be a prerequisite to
state that in the particulars of claim failing which
an exception
could validly be taken.
[6]
The fees and charges payable to sheriffs are tariff–based in
terms of Rule 68 of the Uniform Rules of Courts. From the
particulars
of claim, however, it is clear much more was done by the plaintiff at
the instance of the defendants than what the
Rule provide for e.g. be
called to urgent meetings and briefing sessions, engagement of
security firms, putting up sign boards
etc. for which no tariff is
set. According to Rule 68 where there is a dispute regarding the
validity or amount of any fees or
charges or where necessary work is
done and necessary expenditure is incurred the taxing officer of the
count shall determine the
reasonableness thereof. There has been no
dispute raised in this matter as the plea has not been filed yet.
However, on 18 August
2014 after receipt of the returns, the first
defendant wrote as follows to the plaintiff:
“
We
refer to the above matter and confirm that we forwarded
your returns to our client for payments.
Client
however requested that these accounts should be taxed to satisfy the
Auditor General, considering the huge amount involved.
We
do appreciate and acknowledge that your offices went out of your way
to assist us in this matter. However we have to act on our
client’s
instructions.
Kindly
as a matter of urgency set these accounts down for taxation to enable
us to finalise this matter.”
The
letter was written on 18 August 2014 referring to a return of service
dated 24 July 2014 well within the prescribed ninety (90)
days period
within which to require taxation. The letter also clearly stated that
the amount claimed was high and the Auditor General
may question the
amount if not taxed. It is therefore feasible, fair and just that the
plaintiff tax his fees or charges before
the action can proceed.
[7]
In the result, the following orders are made:
7.1
The exception is dismissed
7.2
All the further proceedings are suspended until the plaintiff has
taxed his fees and charges.
7.3
The costs of the exception shall be costs in the course.
________________
MOLOI,
ADJP
On
behalf of the plaintiff:
Mr DJ Thateng
Sheriff
of Witsieshoek
PHUTHADITJHABA
On
behalf of the defendant:
Adv Hefer
Instructed
by
MCINTYRE VAN DER POST
BLOEMFONTEIN