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[2016] ZAGPPHC 241
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Molete and Another v Molete and Others (A1044/13) [2016] ZAGPPHC 241 (20 April 2016)
HIGH COURT OF SOUTH
AFRICA
(GAUTENG DIVISION,
PRETORIA)
CASE NO: A1044/13
20/4/16
In the matter between:
TRYPHENA
MOLETE
First
Appellant
TRYPHENA MOLETE
NO
Second
Appellant
and
DANIEL
MOLETE
First
Respondent
DANIEL
MOLETE
NO
Second
Respondent
JOSEPH
MOLETE
Third
Respondent
MOHAYABO MOSES
MOLETE
Fourth
Respondent
WILLIAM
MOLETE
Fifth
Respondent
JOY MPHELE
RAPHESU
Sixth
Respondent
EVA
MOLETE
Seventh
Respondent
AGNES
MOLETE
Eighth
Respondent
JUDGMENT
MAKGOKA, J
[1] I have read the
judgment prepared by my colleague, Tuchten J. I agree with the
reasoning and the conclusion that the appeal
should be dismissed with
no order as to the costs of the appeal. I disagree, however, with the
orders proposed in respect of the
sheriff's fees and the attorney's
fees. I am also concerned about certain
obiter
remarks
in the judgment. I therefore write separately to express my views on
these aspects. I deal with aspects,
seriatim.
Sheriff's right of
retention
[2] The sheriff who
attached the vehicles which form the subject matter of the appeal did
so on the instructions of the appellants'
attorneys following an
order of this Court granted on an
ex parte
basis. The
sheriff, naturally, has hinted the obvious, that he would only
release the vehicles upon payment of his storage fees.
He looks to
the attorney who has instructed him for his fees. My colleague says
that the sheriff is not entitled to refuse to release
the vehicles
pending payment of his storage fees. The respondents were throughout,
represented by an attorney and counsel. They
were aware of the
sheriff's stance, and in fact, mentioned it in their papers.
Nevertheless, they did nothing about it. They did
not seek an order
that in the event the appeal is dismissed, the sheriff be ordered to
release the vehicles to them without the
sheriff insisting on prior
payment.
[3] For the above
reasons, I am of the view that it is not our place to interfere with
what is a contractual relationship between
the sheriff and the
attorney for the appellants. My colleague effectively proposes that
the sheriff be ordered to forfeit his contractual
entitlement fees
unless the sheriff shows cause otherwise by approaching this Court. I
am of the view that this is an unnecessary
burden on the sheriff who
is legitimately and contractually entitled to hold on to the vehicles
unless his fees are settled. My
colleague does not state as to who is
to be responsible for the costs of the sheriff approaching this
Court. As stated earlier,
it is not in our place to make the proposed
order.
The attorney's fees
[4] The circumstances
under which the respondent' s appeal was handled on the day of the
hearing are these. When the matter was
mentioned, there was no
appearance on behalf of the respondents. An unidentified person in
the public gallery (presumably ore of
the respondents) informally
conveyed to us that the respondents had given the respondents'
attorneys full instructions in respect
of the appeal, including
payment. After the matter had stood down, counsel who had earlier
been instructed in the discharging of
the order granted ex parte,
appeared and conveyed to us that he had received instructions from
the respondents very late, whilst
he had already accepted a brief in
another matter. Fortunately, that matter did not proceed, which
enabled him to attend to the
appeal and make certain submissions on
behalf of the respondents, from his recollection in the earlier
application.
[5] Under those
circumstances, my colleague concludes that the respondents' attorney
was derelict in his duties for which he should
forfeit his fees,
unless, like the sheriff, he shows cause why that should not be the
case. Similarly, I do not think it is the
court's place to make the
type of order proposed by my colleague, even on a provisional basis.
The attorney is obviously not entitled
to the attendance at court on
the day of the hearing because he did not attend court. But the
attorney would have undertaken work
for the respondents before the
date of hearing, for which he is entitled to be remunerated. Part of
that would include obtaining
the record of proceedings, for which he
would have had to disburse funds. Counsel who appeared on behalf of
the respondents, albeit
briefly late, has to be paid.
[6] If it is suggested
that the attorney must refund all the money he had received from the
respondents, who is to be responsible
for the above disbursements? My
colleague does not proffer any directives in this regard. The order
has costs implications, too,
as the attorney has to prepare papers
and (possibly) instruct counsel to appear. That is at a practical
level. As a matter of policy,
the order proposed by my colleague,
constitutes, in my view, an unnecessary, impermissible and
inappropriate, intrusion into a
very confidential relationship
between attorney and client.
Obiter
remarks
[7] In paragraph 22 of
his judgment, my colleague remarks that:
'An order granted in the
absence of a party to whom notice should have been given should, at
the instance of the aggrieved party,
be set aside as one erroneously
granted as contemplated by rule 42 (1)(a), unless, possibly,
there are weighty considerations
such as the interests of any parties
other than the litigants which may be affected by the rescission.'
[8] The respondents
elected to challenge the
ex
parte
order granted
against them in their absence, by way of reconsideration, and not by
rescission. For this reason, rule 42 does not
find application in the
present case. But more fundamentally, I would have difficulty if what
is stated above is meant to suggest
that an order granted
ex parte
is, as a matter of course, always susceptible for rescission as
being erroneously granted. I think this is an unnecessary conflation
of the requisites for rescission in terms of rule 42, on the one
hand, and those for reconsideration in terms of rule 6(12)(d),
on the
other. This being a Full Court judgment, it is binding on our
colleagues in this Division, as well as the lower courts.
In my view,
it unnecessary and has the potential to lead to some confusion.
[9] For the above
reasons, I would simply dismiss the appeal with no order as to costs,
without all other orders proposed by my
colleague.
_______________________
T.M. Makgoka
Judge of the High Court