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[2016] ZAGPPHC 58
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Sape v AP Ledwaba Attorneys, Matika v AP Ledwaba Attorneys (73677/2015,73679/2015) [2016] ZAGPPHC 58 (27 January 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
27/01/2016
Case
no. 73677/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
S.
SAPE Applicant
and
AP
LEDWABA
ATTORNEYS Respondent
Case
no. 73679/2015
In
the matter between:
F.
MATIKA Applicant
and
AP
LEDWABA
ATTORNEYS Respondent
JUDGMENT
RABIE,
J
1.
In both the above-mentioned matters the respective applicants, being
practising advocates, claimed professional fees from the
respondent
which are allegedly outstanding in respect of professional work
rendered. The facts pleaded on behalf of the applicants
as well as
the defence offered by the respondent are similar and hence it is
appropriate to address both matters in one judgement.
2.
The applicants attached a number of invoices to their simple
summonses wich merely alleged that the amount claimed is in respect
of services rendered during a specific period which is due and
payable but which has remained unpaid. According to the applicant
in
case number 73677/2015 an amount of R 499 100,36 is due and owing to
him. According to the applicant in case with number 73679/2015
an
amount of R 482 250, 00 is due and owing to him. The respondent gave
notice of its intention to defend the actions and this
resulted in
the present two applications for summary judgement before this court.
3.
Both matters served before the court on 19 November 2015. In respect
of each matter the court ordered the respondent to pay the
applicant
an amount of R 100 000,00. The court postponed the application for
summary judgement in respect of the balance of the
respective amounts
claimed and ordered the respondent to file its answering affidavit
together with an application for condonation
for its late filing, on
or before 12 December 2015. An order for costs was also made against
the respondent. The respondent duly
filed an answering affidavit in
both matters which incorporated an application for condonation. The
applicants persisted with their
applications for summary judgement
and also opposed the applications for condonation. The applicants
filed an answering affidavit
in respect of the applications for
condonation.
4.
It is appropriate to deal with the defence on the merits first. I
shall henceforth refer to the applicants in the singular unless
required otherwise. The client of the respondent in respect of which
the fees were claimed was the Road Accident Fund (RAF). All
the
invoices attached to the simple summons allegedly supporting the
amount claimed, relate to different matters in which the applicant
appeared for the RAF on the instruction of the respondent.
5.
The respondent admitted being indebted to the applicant in respect of
services rendered on behalf of the RAF but denied that
the amount
claimed was the correct amount. In respect of certain invoices
attached to the summons the respondent attached correspondence
and
proof of payment to its answering affidavit.
6.
The respondent further stated that "the invoices were taxed off
in terms of the RAF tariff' and concluded that the respondent
is thus
not liable for same. Although not specifically stated, it appears
from the respondent's answering affidavit as well as
the applicant's
answering affidavit in the condonation application that the agreement
between the parties was that fees would be
marked according to a
"Framework on Counsel Fees" issued by the RAF from time to
time. According to the respondent in
its answering affidavit the
applicant, in drawing his invoices, used a "new tariff' which
only took effect on 25 February
2015 instead of using the old tariff
relating to work done and court appearances applicable at the
relevant time.
7.
The respondent calculated the remaining invoices in accordance with
the old tariff and concluded that it was indebted to the
applicant in
case number 73677/2015 in an amount of R 155 732, 40 and to the
applicant in case number 73679/2015 in the amount
of R 117 500, 00.
The respondent therefore admitted that, having regard to the court
order dated 19 November 2015, the amounts
of R 55 732, 40 and R 17
500, 00 were due to the respective applicants. Regarding the balance
of the claims the respondent submitted
that it had a bona fide
defence for the reasons mentioned above.
8.
In respect of the application for condonation the respondent did not,
as was stated above, file a separate notice of motion supported
by an
affidavit. However, in the answering affidavit under the heading "Ad
Condonation" the respondent prayed for the
required condonation
for the late filing of its opposing affidavit and referred to the
reasons for the application which were briefly
the following: The
respondent relocated to new premises during June 2015 and
consequently all the necessary files of the applicant
"could not
be obtained quickly to assess them in respect of payment". This
resulted in the late filing of the opposing
affidavit. It was further
submitted that the failure to file the opposing affidavit in time was
not due to any deliberate non-compliance
of the Rules of this Court
and that the applicant suffered no prejudice as a result thereof. On
the other hand, if the opposing
affidavit is refused due to its
lateness, the respondent would be prevented from presenting its case
to court. The respondent also
submitted that it has a bona fide
defence to the action.
9.
In opposing the application for condonation it was submitted that the
reasons offered were bold, vague and sketchy. It was submitted
that
the respondent was never required to obtain the files "quickly"
but had 5 months to do so since its relocation and
more than a month
to do so since the application for summary judgement was served on it
on 13 October 2015. Furthermore that the
respondent did not explain
why the files were inaccessible and what actions they took to obtain
the files. Based on these submissions
the applicant submitted that
the respondent's default was the result of a reckless or intentional
disregard of the Rules of Court
10.
The applicant also submitted that the respondent has failed to show
good cause for condonation for the reason that it failed
to show that
it had a prospect of success in defending the principal case. In
support of this submission the applicant went further
and, inter
alia, submitted that the contention that the fees should have been
based on the "old tariffs", was false.
The applicant then
referred to a rather large number of amounts which he allegedly would
have been paid instead of what he had
been paid, if the old tariff
was applicable. According to the argument this allowed for the
conclusion that the old tariff was
not applicable. He further
submitted that the new tariff was in fact already effective on 15
August 2012 and in this regard he
referred to the RAF's Service Level
Agreement which he stated had been concluded with all the law firms
on the RAF's panel.
11.
Regarding the condonation application I am satisfied that the
respondent has adequately explained why it failed to file the
answering affidavit timeously. It is so that the respondent could and
probably should have furnished more detail but I am satisfied
that,
having regard to the number of matters in respect of which the
applicant claimed payment and the time spent to locate the
relevant
files and to make the necessary calculations, the conclusion cannot
be drawn that the respondent was in wilful default.
In my view the
respondent has adequately explained why it required more time to file
an answering affidavit and the relevant documentation
attached to it.
Furthermore, the applicant suffered no prejudice as a result of the
late filing other than in respect of costs
in respect of which he had
already obtained a favourable order.
12.
Regarding the attack on the defence I cannot, on the papers before
me, come to any definitive conclusion and can definitely
not draw the
conclusions which the applicant wishes this court to draw. It
appears, on the face of it, that the respondent may
have serious
questions to answer, but without having heard the respondent fully on
the present dispute, I cannot reject his defence
as not being bona
fide.
13.
Having regard to the order already made against the respondent for
payment of the amount of R100 000,00 only the lesser amount
submitted
by the respondent and mentioned above, can be awarded at this point.
14.
In the result the following order is made:
15.
In respect of case 72677/2015
1.
The application for condonation is granted.
2.
The respondent is ordered to pay the applicant
the amount of R 55 732,40 together with interest thereon at the rate
of 9% per annum
from date of summons being 17 September 2015, to date
of payment.
3.
Leave is granted to the respondent to defend the
action for the balance of the applicant's claim.
4.
The costs of the application for condonation
shall be costs in the cause of the main action.
5.
The costs of the application for summary
judgement are reserved.
16.
In respect of case 72679/2015
1.
The application for condonation is granted.
2.
The respondent is ordered to pay the applicant
the amount of R 117 500,00 together with interest thereon at the rate
of 9% per annum
from date of summons being 17 September 2015, to date
of payment.
3.
Leave is granted to the respondent to defend the
action for the balance of the applicant's claim.
4.
The costs of the application for condonation
shall be costs in the cause of the main action.
5.
The costs of the application for summary
judgement are reserved.
_________________________
C.P.
RABIE
JUDGE
OF THE HIGH COURT