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[2015] ZAGPPHC 532
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Wolfe v Whelpton; In re: Whelpton v Wolfe (67305/13) [2015] ZAGPPHC 532 (9 July 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG DIVISION,
PRETORIA
Case
Number: 67305/13
In the matter between
GEORGE
WOLFE
Applicant
And
PROFESSOR FRANCES P
V R
WHELP
Respondent
IN
RE
PROFESSOR FRANCES P
V R
WHELPTON
Applicant
And
GEORGE
WOLFE
Respondent
JUDGMENT
BAM J
1.
The applicant, an attorney by profession, in an urgent application,
applied for an order staying the respondent's warrant of
execution in
Case Number 67305/13 and preventing the removal of goods attached by
the Sheriff, pending the finalization of the
applicant's claim
instituted against the Respondent under Case Number 47355/2015. The
application is opposed. (Due to time constraints,
there were more
than 35 urgent applications on this Courts roll for this week, this
judgement is not as comprehensive as what I
would have preferred it
to be.)
2.
In August 2013 in an arbitration case concerning a claim by the
applicant against the respondent. The issue turned upon the
allegation that the respondent owed money to the applicant based on
certain written agreements between the parties. The arbitrator
ruled
against the applicant, the agreements were set aside and a costs
order was made against the applicant. The arbitrator's award
was
confirmed in the High Court in January 2015. The costs, taxed on 27
May 2015, were in the amount of R494 074.97. A warrant
of execution
was served on the applicant on 22 June 2015. The execution of this
warrant is now at stake.
3.
According to the applicant, on 22 August 2013, the last day of the
arbitration and notwithstanding the outcome of the arbitration,
the
respondent
"once
again"
acknowledged
his indebtedness to the applicant and undertook to effect payment to
the applicant. Arising from this undertaking the
applicant, shortly
after the arbitration, issued summons against the respondent under
Case Number 71082/13 claiming payment. An
exception taken by the
respondent was successful and on 8 June 2015 the applicant's
Particulars of Claim was set aside. The applicant
was granted 15 days
to amend the particulars of claim. The applicant however decided to
withdraw the particulars of claim in that
case, and in its stead, on
26 June 2015, issued a new summons under Case Number 47355/15. The
particulars of claim now simply mentioned
a claim for the payment of
money, which the applicant contends is a claim for payment of a
liquid amount. The applicant's attorneys
followed up this summons
with correspondence directed to the respondent's attorneys informing
them that they were not entitled
to enforce payment of their costs
(reflected in the warrant for execution) pending the outcome of the
"present litigation"
between the parties. It
was further
tendered
by the applicant's attorneys to pay the said costs amount into its
trust account pending the outcome of the litigation.
This was clearly
not acceptable to the respondent's attorneys and they addressed
correspondence to the applicant's attorneys enquiring
on what legal
grounds they based their contention that the respondent was not
entitled to enforce payment of his costs.
4.
The applicant, whilst his attorney of record was absent, personally
addressed correspondence to the respondent's attorneys stating
that
the purpose of the letter was to obviate the bringing of an urgent
application and not to incur unnecessary costs. The grounds
he relied
upon were the following:
(i)
The basis of the liquid
claim he had against the respondent;
(ii)
The doctrine of set off between
his liquid claim and the amount of
the respondent's taxed costs. It was pointed out that the applicant's
claim was far in excess
of the respondent's costs; and
(iii)
The amount of the respondent's taxed costs.
5.
The respondent's attorneys replied and, amongst others, stated that
the respondent denied the claim as set out in the applicant's
latest
summons.
6.
In his founding affidavit the applicant also stated that the intended
removal of the goods attached, apparently his office furniture,
is to
cause him
"embarrassment and
hardship ".
7.
It appears that the main reason why applicant is not prepared to pay
the respondent's costs at this point in time is the alleged
substantial liquid claim he has instituted against the respondent.
8.
The respondent, in his opposing affidavit, added some detail to the
history of the litigation, and relationship, between the
parties. In
referring to the written agreements dealt with at the arbitration, he
stated that these agreements, concerning payments
to the applicant of
"vast"
sums of money when the respondent would
receive compensation from the Kingdom of Swaziland for work done,
were entered into
as a result of
"unlawful threats"
by
the applicant to harm him and his family. This was the reason why the
arbitrator eventually
made the order setting
it aside. At the arbitration both the applicant and the respondent
testified about the legality of the agreements.
The respondent said
it was entered into as a result of extortion. After the applicant had
testified, he agreed that the contested
agreements should be set
aside. The arbiter accordingly made such order, accompanied by the
costs order in question.
9.
The ruling by the arbiter reads as follows: (Annexure A to the
answering affidavit.)
1.
The agreements concluded between the parties on June 11th 2004,
July 20th 2004, May 23'd 2008, and September 21st 2010,
are hereby
set aside.
10.
Despite this ruling by the arbiter, which was confirmed in the High
Court on 23 February 2015, the applicant issued summons
against the
respondent based on the very same agreements that were set aside. The
applicant however alleged that he had withdrawn
the arbitration and
was now claiming payment of 20% of the amounts received by
respondent, to the maximum of 20 million US Dollars.
11.
The respondent said these allegations were false and further denied
that he, after the arbitration, as alleged by the applicant,
admitted
his liability to pay the applicant 20% of the moneys received from
Swaziland.
12.
After the successful exception the applicant failed to amend his
Particulars of Claim but delivered a Notice of Amendment indicating
that his initial claim was now replaced by a claim for payment of 20%
of 100 million US dollars within 2 weeks from 31 August 2013.
This
caused the respondent to file a Notice of Objection, and on 12 June
2015 the applicant's Particulars of Claim were set aside
with leave
granted to the applicant to amend his pleadings. The court ruled that
the applicant should apply to the court for leave
to amend.
The applicant,
however, then withdrew that action and proceeded to issue a fresh
summons against the respondent.
13.
During argument before this Court, Adv de Beer, appearing for the
applicant submitted that the only issue pertaining to the
merits of
the application to be considered is whether the applicant's claim as
set out in his present Particulars of Claim is liquid.
Mr de Beer
argued that the claim is indeed for a liquid amount, and,
accordingly, that the applicant is entitled to set off
in respect of
the payment of the costs now claimed by the respondent in terms of
the warrant of execution and the eventual successful
claim for
payment of the liquid claim. This situation justifies the applicant's
application for the staying of the warrant of execution
in question.
Concerning the dispute of facts, which Mr de Beer conceded existed in
respect of the question whether any amount is
in fact owed to the
applicant by the respondent, Mr de Beer argued that it should be
ignored and disregarded by this Court. That
dispute of facts,
Mr
de Beer contended, is something the court eventually trying the case
between the applicant and the respondent will be called
upon to
decide.
14.
Adv vd Merwe SC, appearing for the respondent contested that the
amount now claimed by the applicant in his latest claim against
the
respondent is a liquid amount. Mr vd Merwe further contended that the
factual disputes between the parties are of cardinal
importance,
pointing out the glaring discrepancy concerning the basis of the
applicant's claim, being the alleged agreements which
had been set
aside by the arbitrator, and confirmed in the High Court.
15.
Considering the circumstances alluded to above, it is, in my view, of
importance to take into account that material factual
disputes exist
between the parties. The applicant, at all relevant times, was
patently aware of the existence of these disputes.
The disputes
surely affect the core of the litigation between the parties. The
argument that these disputes are immaterial to the
present
application is fallacious and without substance.
16.
In the circumstances referred to above the applicant is not
"entitled"
as claimed, to have the warrant for
execution stayed. It would clearly be prejudicial to the respondent
to grant that order.
17.
In view thereof that the applicant has tendered to pay the costs
amount into a trust account means that he is min fact able
to do so.
That being the case it is very peculiar that the applicant also
complains about the attachment of his furniture. It seems
to be quite
easy for the applicant, without any prejudice to himself, simply to
pay the outstanding costs in order to get rid of
the attachment. The
applicant alone is to be blamed for this predicament and his
complaint concerning the attachment of his
office furniture.
18. The applicant
dismally failed to substantiate the application and it has to be
dismissed.
19.
In respect of costs it has to be taken into account that the
applicant is an attorney and not a lay person. He very well knew
what
the consequences of a frivolous application,which this undoubtly is,
could entail. Accordingly I agree with the respondent's
submission
that a punitive costs order should be granted.
ORDER
1.
The application is dismissed.
2.
The applicant is ordered to pay the costs on an attorney and client
scale, including the
9
July 2015