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[2016] ZAGPPHC 1241
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Dewar v Law Society of the Northern Provinces (The Fee Assessment Committee) and Another (90428/2015) [2016] ZAGPPHC 1241 (9 November 2016)
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IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
9
November 2016
CASE
NO: 90428/2015
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
REVISED
In
the matter between:
DAVID
ANGUS
DEWAR
APPLICANT
And
THE
LAW SOCIETY OF THE NORTHERN PROVINCES
(THE
FEE ASSESSMENT
COMMITTEE)
FIRST
RESPONDENT
HELEN
ELLIS
ATTORNEYS
SECOND
RESPONDENT
JUDGMENT
PRETORIUS
J
,
(1)
The second
respondent launched an application in the Gauteng Local Division,
Johannesburg of the High Court under case number 2014/45199
("the
main application"), against the applicant seeking to recoup
monies due, owing and payable by the applicant to the
second
respondent for services rendered as an attorney. The second
respondent was the attorney of record mandated by the applicant
in
divorce proceedings to which the applicant was a party. The applicant
is an attorney.
(2)
On 30 March 2015
the applicant, as defendant, requested a postponement in the
application in the Gauteng Local Division, which was
granted by
agreement between the parties. The order was
inter
alia, "The Respondent is to pay the wasted costs".
These
costs were taxed by the taxing master on 23 June 2015. The amount
payable to the second respondent is R3 206.48. On 2 July
2015 a fax
was sent to the applicant's erstwhile attorney demanding payment of
the said amount by close of business on 6 July 2015.
(3)
On 19 October 2015
the main application was postponed
sine
die
after the
applicant had launched a substantial application for postponement,
which was opposed. The taxed bill of costs remains
unpaid. The
applicant launched the present application on 9 November 2015.
(4)
Kathree-Setiloane
J made the following order:
"1. The application is
postponed side die.
2.
The
Respondent shall, subject to the provisions of this Order, launch his
intended Review Application against the fee assessment
of the Law
Society of the Northern Provinces within
a
period of 15 days, or
such longer period as this Court on application and on good cause
shown may allow, failing which the Applicant
may set the Application
down for hearing on the opposed motion court roll.
3.
The
Applicant shall not be required to deliver an Answering Affidavit to
the review application until such time that the
Respondent
has satisfied the costs order of both this order as well as the order
by the Honourable Judge Lamont dated 30 March 2015,
provided that the
Respondent shall pay the costs orders within 30 days, or such longer
period as this Court on application and
on good cause shown may
allow, of the aforesaid costs being agreed to or taxed, failing which
the review application will automatically
lapse..."
(Court
emphasis)
(5)
On 26 January 2016
the second respondent filed an answering affidavit to try and
finalize the proceedings, although the costs had
not been paid. On
16 February 2016 the applicant served and filed a replying affidavit.
(6)
Counsel for the
second respondent argued a point
in
limine
that the
application for review had lapsed as the applicant had not paid the
taxed bill of costs subsequent to the court order of
Lamont J as set
out in the court order of Kathree-Setiloane J. All parties agreed
that the court should first rule on the point
in
limine. Although
counsel for the applicant made much of the fact that the applicant
had not known that the bill of costs had been
drawn and taxed and had
not received the letter of demand, it is clear that both these
documents were attached to the second respondent's
opposing affidavit
to the application for postponement before Kathree-Setiloane J.
(7)
The applicant had
known that the bill of costs had been taxed since the answering
affidavit had been filed. His further contention
is that by filing
the answering affidavit the second respondent has waived his right to
have the costs paid. This can never be
the case that a court order
can be disobeyed where there is a valid court order which the
applicant chooses to disregard.
(8)
The further
contention is that he had tendered payment in the replying affidavit.
Counsel for the applicant had to concede that
the tender was not made
on condition that the second respondent furnishes her banking
details. The applicant set out:
"... I herewith tender
payment of such costs and I will instruct my attorney of record to
make payment to the Second Respondent
forthwith upon her furnishing
my attorney with her banking details ....
...
I point out with the
greatest of respect to the Second Respondent that she has failed to
demonstrate to this Honourable Court that
the taxed bill has been
brought to my attention ...
As
a
matter of fact, on
a
proper consideration
of the wording of the order under consideration, it is patently
obvious that
a
taxation that is still
to occur is envisaged."
(9)
This is obviously
not true as the taxed bill of costs were attached to the answering
affidavit in the Gauteng Division of the High
Court when the second
respondent opposed the application for postponement.
(10)
The defence that
the applicant does not know the second respondent's banking details
is devoid of all truth as it is set out in
the mandate signed by the
applicant as:
"Helen Ellis Attorney
Trust Account No. 2 ABSA Bank, Ferndale Branch
Account no.: [...]
Branch code: 630-905
Reference: DEWAR"
(11)
A tender is not
payment and the applicant has had ample time to comply with the court
order of Kathree-Setiloane J, but chose to
ignore it. It is even
worse where the applicant, who is an officer of the court, merely
disregards a court order.
(12)
The further proof
of the applicant's disregard and contempt for court processes can be
seen by the applicant's actions by failing
to adhere to the Practice
Directives of this court. The applicant did not index and paginate
the application, which was done by
the second respondent to try and
finalize the application. Furthermore the applicant failed to serve
heads of argument as prescribed
in the Practice Manual. The second
respondent prepared heads of argument without being in possession of
the applicant's heads of
argument.
(13)
I have considered
all the arguments by counsel. I cannot find that the applicant had or
has any intention to pay the taxed bill
of costs. Due to the fact
that he did not comply with the court order of Kathree Setiloane
J I find that the application for
review has lapsed.
(14)
In the result I
make the following order:
1.
The
application is dismissed;
2.
The
costs to be paid by the applicant on an Attorney and Client
scale.
Judge
C Pretorius
Case
number
: 90428/2015
Matter
heard
on
: 8 November 2016
For
the Applicant
: Adv Thompson
Instructed
by
: KAWT Attorneys
For
the First
Respondent
: Attorney PJ Smith
Instructed
by
: Rooth & Wessels Attorneys
For
the Second
Respondent
: Adv PA Venter
Instructed
by
: MacRobert Attorneys
Date
of
Judgment
: 9 November 2016