About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2016
>>
[2016] ZAGPPHC 1085
|
|
Sape v Ledwaba Attorneys; Matika v AP Ledwaba Attorneys (73677/2015; 73679/2015) [2016] ZAGPPHC 1085 (27 January 2016)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
ReportABLE:
No
Of
interest to other judges: No
Revised.
27/01/2016
Case
no. 73677/2015
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 which 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
15.
In respect of case 73677/2015
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 7 679/2015
1.
The application for condonation is granted.
2.
The respondent is ordered to pay the applicant
the amount of R 17 500,00 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