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[2016] ZAGPPHC 695
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Molai v Pule Incorporated (31533/2015) [2016] ZAGPPHC 695 (12 August 2016)
I
N
THE
NORTH
GAUTENG
H
I
GH
COURT,PRETORIA
[REPUBLIC
OF
SOUTH
AFRICA]
CASE
NUMBER: 31533/15
DATE:
12 AUGUST 2016
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In
the matter between
MOLAI
MG
...........................................................................................................
PLAINTIFF
And
PULE
INCORPORATED
..................................................................................
DEFENDANT
MAKAMU
AJ:
JUDGMENT
[1]
The Plaintiff in this matter seeks to be paid some money after
professional services were rendered in representing the RAF on
instructions of the Defendant, however there is no dispute that there
are some monies owed to the Plaintiff by the defendant.
[2]The
first bone of contention is whether the parties had a contract in
place if so whether it was verbal or tacit (implied) kind
of
contract. The Plaintiff is a practising Advocate who started his
practice in 2010 and he has since been
instructed
by the Defendant who is a firm of Attorneys to represent the Road
Accident fund.
[3]
The Plaintiff does not remember whether they had verbal agreement or
tacit agreement but from his recollection ,when he started
to take
instructions from the Defendant, when he finalise a matter he would
allow ninety (90) days for the Defendant to get its
bill to be taxed
and they paid him his invoices that he issued.
[4]
The practice of receiving instructions, do the work and get paid went
well since 2010 until around 2012 when payments did not
come as they
used to, however he continued to render services on behalf of the
Defendant until in 2015 when he realised that his
bill ran to about
R317 409.00 and was not paid. He tried to demand payment but he would
be referred to the accounts department
where he could not receive
joy, until he decided to take action against the Defendant.
[5]
5.1. The first issue
was
:
terms of agreement between the plaintiff and the defendant, and when
do the plaintiff's invoices due and payable by the defendant.
5.2.
The second issue is amount that is due and payable by the defendant
to the plaintiff.
[6]
The plaintiff stated in his evidence that there was verbal agreement
but he was not certain if it was verbal agreement or tacit
agreement
and it became clear that he would need to amend his particulars of
claim as follows: " The Plaintiff and the Defendant
entered into
a verbal and/or tacit agreement in terms of which the Defendant was
going to pay the Plaintiff his fees within reasonable
time upon
finalisation of the matter and/or finalisation of the part
of
the
matter and after the Defendant has taxed his bill together with the
bill of the Plaintiff."
The
Plaintiff understood reasonable time to mean ninety (90) days after
the bill has been taxed in accordance with the rules of
Pretoria Bar
although he was not a member of Bar Association.
[7]
On the other hand the Defendant agreed that there was verbal
agreement however the parties agreed in terms of that verbal
agreement
that payment would be only due and payable when the
Defendant receives payment from Road Accident Fund. The Defendant
avers that
the parties agreed tacitly by conduct and/or verbally that
the plaintiff would receive payment upon receipt of payment by the
defendant
from the Road Accident Fund.
[8]
The averment by the Defendant is no different from that of the
plaintiff save for the conditions.
[9]
It stands to reason that the Defendant could not have an open ended
agreement in regard to the condition that after it has been
paid by
the Road Accident Fund.
[10]
There is no doubt that there was an agreement between parties and
there is no need for an argument in that regard, the only
dispute is
the condition attached by the Plaintiff and the Defendant.
[11]
The defendant claimed that it could be liquidated if it was to pay
advocates account before it is paid by the Road Accident
Fund, as it
is heavily dependent on the RAF,yet expect the advocates to survive
without payment for long periods of time.
[12]
In Electronic building Elements v Huang
1992 (2) SA 384
(W) the Court
said
"If the parties choose to exclude from legal
enforceability any
arrangements arrived
at
between them
,
then it can become no more than a moral
obligation or an obligation of honour, but unenforceable
in
a court of law".
Can one say the parties intended to exclude
their agreement from enforceability in a court of law?
If
the contract was tacit agreement in Standard bank of SA Ltd v Ocean
Commodities Inc. 1983 (1) 276 (AD) the court said. "
In order to
establish a tacit contract it is necessary to show, by a
preponderance of probabilities, unequivocal conduct which
is capable
of no other reasonable interpretation than that the parties intended
to, and did in fact, contract on the terms alleged.
It must be proved
that there was in fact
consensus
ad
idem".
[13]
The question is: is it practical to pay the advocates only after Road
Accident Fund has paid the Defendant on which there was
no certainty
as to when the Fund will pay.
[14]The
Defendant stated that there are two matters where the Plaintiff was
paid before the RAF paid them but that
was
a
gesture of goodwill. This was in contradiction with the
Defendant's policy of paying advocates only after having received
payments
from the Road Accident Fund.
[15]
The Defendant argued on their heads of argument that the plaintiff
failed to prove the terms of the agreement as pleaded in
its
particulars of claim. A plaintiff cannot allege a verbal or tacit
agreement as the basis of his cause of action and succeed
in the
absence of proving the terms of that verbal or tacit agreement
The
defendant also agreed that there was verbal agreement but cannot now
say what the plaintiff is saying cannot be true yet in
the past the
defendant paid the plaintiff without issues of the Road Accident Fund
having not paid the Defendant.
[16]
The averment by the defendant is not practical and feasible for the
practice of the advocate to survive if he is to be paid
as and when
the fund has paid the Defendant.
[17]
The defendant claims that sometimes they do not know whether the Road
Accident Fund allowed the amount payable to the advocate
as per his
invoice, yet the plaintiff argued that in terms of section 78(4) of
Attorneys Act, 53 of
1979
says
“any practising attorney shall keep proper accounting
records
containing particulars
and information of
any money received, held or
paid by
him
for or
on
account of any
person, of any money invested by
him
in
a trust
saving
or
interest
bearing
account
referred
to
in
subsection
(2)
or
2(A)
and
of
any
interest
on
money
so
invested
which
is
paid
over
or
accredited
to
him".
[18]
The plaintiff argues that the defendant was and is required by law to
keep records of information relating of their firm's
trust account.
However the defendant argues that some of the payments from the Road
Accident fund are not accompanied with trigger
note so as to identify
what has been allowed and what has not been allowed by RAF and this
is contrary to proper accounting practice
of the attorneys account.
[19]
The defendant argues further that since on the plaintiff's own
version there was no discussion(verbal declarations) regarding
payment terms, it cannot be that a verbal agreement was concluded in
the terms alleged by the plaintiff.
The
above argument cannot hold water as the defendant in the past paid
without raising the challenges brought about by the actions
of the
RAF,such agreement was ratified by the conduct of both parties, and
the terms as averred by the Defendant were not communicated
to the
Plaintiff, according to the Defendant's witnesses' testimonies.
[20]
The defendant argues further in their heads of arguments that the
plaintiff amendment to say there was tacit agreement does
not help
the plaintiff but makes matters worse, yet it is the defendant's
version that indeed there was verbal agreement and when
the situation
changed there was no communication to the plaintiff regarding that
change since the last time they have been paying
him regularly.
The
defendant admitted that there was no direct communication with the
plaintiff regarding payment terms and that does not make
the
plaintiff to be at fault by expecting payment.
On
the other hand the defendant stated that the plaintiff did not
communicate the general practice that he knew to the defendant,
so it
is clear and confirmed by evidence by both parties that there were no
declarations in regard to the terms of payment, by
either party.
[21]
Evidence of both witnesses for the defendant have no recollection
discussing payment terms with the plaintiff so there is no
way he
could have known their challenges yet he conceded that if there was
communication and explanation of the situation regarding
delayed
payment or reduced payment he could have understood and hold the
defendant not responsible for the shortfall or delayed
payment.
[22]
The plaintiff argues that there could be no agreement that the
defendant will only pay the plaintiff after it has received
payment
from RAF,what if the RAF does not pay yet the plaintiff rendered his
services? The defendant would still be liable for
payment taking into
account that there is no agreement between RAF and the plaintiff but
the agreement is between the defendant
and the plaintiff. If the RAF
does not pay the defendant it will be up to the defendant to take
action against RAF for non-payment
and not the plaintiff.
[23]
The defendant argued on their heads of arguments,
"that
on the
basis of the plaintiff's evidence
regarding the disputed payment term should
be rejected.
The
accepted evidence on
behalf of
both
parties is
that
there
is
no agreement regarding payment terms. That
being so, his claim should
be dismissed".
This
argument stand to be rejected as the defendant agrees that there are
payments still outstanding in favour of the plaintiff,
he cannot wait
indefinitely for the payment yet he completed the assignment long
time ago, which makes the period to be unreasonable.
[24]
The defendant cannot rely on its own policy which is not binding to
the plaintiff and expect the plaintiff to comply with its
policy yet
do not want the plaintiff to be bound by the rules of the Pretoria
Bar Association, it does not make sense.
[25]
The defendant argued further that there are two mutually destructive
evidence by the plaintiff and the defendant and in my
view they
support each other, that there was no verbal agreement regarding
payment terms. The only difference is as to when the
payment should
be effected. That does not mean that the plaintiff should not be
paid. Some of the payments were in excess of two
years and it is up
to the defendant to take it up with their own client being the RAF to
expedite payments so that they may also
be able to meet their
obligations to the advocates (Plaintiff)."
I
was referred to the case of national Employers' General Insurance Co
Ltd v Jagers
1984 (4) SA 437
(E) "where the court stated that in
deciding whether that evidence is true or not the Court will weigh up
and test the plaintiff's
allegations against the general
probabilities."
[26]
It is indeed correct that the plaintiff was a truthful witness, so
was the witness for the defendant. It does not mean that
plaintiff
should not be paid and the challenges of the defendant cannot be
remedied by not paying the plaintiff but should pursue
RAF for the
delayed payments.
[27]
One pressing issue is the amount owed to the plaintiff. He sued for
an amount in excess of R317 000, however he admit that
the defendant
made some payments since the commencement of this action and it
significantly reduced the amount owed to a total
of approximately
R211661.00. unless the defendant has come to a different figure.
The
Defendant does not dispute the outstanding amount save to say some of
the invoices have not been fully paid by the Fund and
the Plaintiff
is prepared to write off the difference provided there is proof of
such short fall, by the fund
[28]
The Defendant wants the Plaintiff to take their word without
providing proof as they stated that the Fund is not sending them
trigger notes all the time to establish what has been allowed and
what has not been allowed.
It
is puts the Plaintiff under difficult situation to compromise and
accept what they say because there has been an impulse caused
by
non-payment over a period of time. The Defendant should make it their
business to be as transparent as possible to the Plaintiff
to remove
any doubt about their word.
In
the premises the plaintiff has proved his case and I make the
following order.
Order
1.
Judgment in favour of the Plaintiff is hereby granted in the amount
to be determined after taxation within 60 days.
2.
Interest on the amount at the rate of 10.5% from date of summons to
date of payment
3.
Costs of the suit.
M
S MAKAMU
ACTING
JUDE OF THE HIGH COURT
DATE
OF THE JUDGEMENT : 12/08/2016
PLAINTIFF'S
COUNSEL :ADV M G MASHABA
Instructed
By : KOKELA ATT
DEFENDANT'S
COUNSEL :ADV L C SEGEELS
Instructed
By : PULE INCORPORATED