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[2012] ZAGPPHC 204
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Lamola v Mahlangu and Another (33183/2011) [2012] ZAGPPHC 204 (7 September 2012)
NOT
REPORTABLE
NORTH
GAUTENG HIGH COURT, PRETORIA
CASE
NO: 33183/2011
DATE:07/09/2012
In
the matter between:
MADIMETJA
CHARLES
LAMOLA
.............................................................
Applicant
and
ALFRED
SPHUMO
MAHLANGU
..............................................................
First
Respondent
MNISI
ATTORNEYS
…................................................................................
Second
Respondent
JUDGMENT
MSIMEKI,
J
INTRODUCTION
[1]
This application is in two parts. Part A sought an order interdicting
the Second Respondent " from paying out any amount
received from
the Road Accident fund in settlement of a claim by the First
Respondent pending the finalisation of the B Part of
this
application." Part B concerns payment of an amount of
R189.000.00 together with interest thereon to the Fidelity Fund
by
the First Respondent. The amount flows from the striking off of the
First Respondent from the roll of attorneys. The Applicant
in Part B
also seeks payment to himself by the First Respondent of an amount of
R74.996.30 together "with interest thereon
at the rate of 15.5%
from 11 August 2009 to date of payment."
[2]
BRIEF FACTS
The
Applicant, the First Respondent and one George Edgar Ntshaupe Mokhuse
were partners in a Law Firm in Pretoria which practised
under the
name and style of Lamola Mahlangu and Mokhuse. The three partners,
due to the chaotic state of their trust account, were
suspendered
from practising for their own account. The Applicant and First
Respondent did not oppose the application for their
striking off
while Mokhuse did. Mokhuse ended up being suspended from practising
as an attorney for a period of six (6) months
from 18 November 2005
while the names of the First Respondent and the Applicant were
removed from the roll of attorneys. Paragraphs
1.2 and 1.3 of the
order of court dated 3 September 2004 (suspending the three
partners), in terms of the court order of 18 November
2005 "
shall apply mutatis mutandis" to the Second Respondent
(Mokhuse). Paragraph 1.3 provides:
"1.3.
that first and third respondents (i.e. the First Respondent and the
Applicant in this matter) be and are hereby directed:
1.3.1.
to pay, in terms of section 78(5) of Act No 53 of 1979,
the
reasonable costs of the inspection of the accounting records of
respondents;
1.3.2.
to pay the reasonable fees and expenses of the curator:
1.3.3.
to pay the reasonable fees and expenses of any person(s) consulted
and/or engaged by the curator as aforesaid;
1.3.4.
to pay the costs of this application on an attorney - and -client
scale."
The
Applicant paid the fees and costs incurred by the Law Society of the
Northern Provinces in full. The Applicant contends that
the Attorneys
Fidelity Fund in Cape Town had informed him that he and the First
Respondent were "jointly and severally liable
for the trust
shortfall". The First Respondent's attorneys in their letter
dated 14 August 2009 stated:
"
1 our client and yours are jointly and severally liable for the trust
shortfall and for the costs of the
application
for their strucking (sic) from the roll of
practicing
(sic) as attorneys." The First Respondent in his "without
prejudice" letter dated 14 May 2008 and addressed
to the
Attorneys Fidelity Fund wanted to know if, indeed, the Applicant had
paid an amount of R206.603.55 directly to the fund
as well as costs
to Rooth and Wessels Inc. , acting for the Law Society.
The
First Respondent, in the letter, further said:
"I
await confirmation from your office whether the list of the claims
loged against me and the amounts is exhaustive as indicated
to me by
Mr Lamola with a view to settle the amount by no later than the end
of September 2008." The Fund responded to the
letter by way of
annexure "C" on Page 88 of the paginated papers. This is
the Fund's letter dated 4 June 2008. the Fund's
letter is not marked
"without prejudice". The Fund then expected to recieve the
First Respondent's "further advices"
after confirming that
the list of the clients that the First Respondent dealt with as
advised by the Applicant had seemed to be
correct. By that time,
according to the Applicant, he had effected payment of the amount of
R206.603.55. the Applicant expected
the First Respondent to pay back
to him half of the amount which he had paid which, according to him,
was supposed to have been
paid by the First Respondent. The
Applicant, knowing that the First Respondent had been involved in a
motor vehicle accident in
which he had been injured, and that the
Second Respondent was handling his claim, wrote to the second
Respondent asking for an
undertaking that repayment of the amount
would come from the money that was claimed once the MVA claim was
settled or finalised.
The Second Respondent in its letter to the
Applicant's attorneys wrote:
"4.
we wish to place it on record that our client is not in a position to
make any undertakings based on his Motor Vehicle
Accident claim
because he does not know how and when the said claim will settle."
This prompted the Applicant to bring this
application which is
opposed by the First Respondent. The Second Respondent on 21 June
2011 indicated that it would" "abide
by the decision of the
above Honourable court."
[3]
There have been problems relating to the firms of Phuti Manamela
attorneys and Mnisi attorneys. The problem is dealt with by
the
Applicant in his supplementary affidavit. It is apparent therefrom
that Ms Manamela was never the attorney and that Ms Mnisi
had signed
the documents utilising Ms Manamela's letterhead without her consent.
The notice to oppose, too, according to the Applicant,
seems to
contain Ms Mnisi's telephone numbers and not Mr Kabini's. This,
according to the
Applicant,
led to the improper enrolment of the matter. Phuti Manamela
attorneys, accordingly, withdrew as the First Respondent's
attorneys
and were substituted by Mogajane Attorneys.
[4]
The Applicant's supplementary affidavit also deals with the amended
notice of motion relating to the amount claimed and the
application
for condonation for the late filing of the necessary documents. The
further request is that the notice of motion be
amended to reflect
the amount of R166.639-89 as the amount which substitutes the amount
of R74.996.30 in paragraph 2 of Part B
of the notice of motion dated
10 June 2011. Mr Snyman, for the Applicant, and Ms Granova, for the
First Respondent, agreed that
as the parties were duly represented in
court the matter had to proceed. It was further agreed that the court
was to deal with
the entire matter and thereafter give the judgment
which would then deal with the relevant issues. That the matter was
not properly
enrolled was regarded as a non-issue as the parties were
duly represented.
[5]
With the problems that the court faced, and in the interest of
justice, I decided to:
5.1.
allow the documents that the court was furnished with
5.2.
grant the amendment and the condonation.
[6]
THE ISSUES
These
are:
6.1-
whether the Applicant is entitled to an order in terms of prayer 1 of
Part B of the notice of motion.
6.2.
whether the Applicant is entitled to an order in terms of prayer 2 of
Part B as amended of the notice of motion.
6.3.
the question of costs.
[7]
The court experienced endless problems because of the nature of the
papers that had been presented by the Applicant. The supplementary
affidavit by the Applicant bears testimony to this. The court ended
up asking the parties to assist it with the calculations of
the
amount which the First Respondent would be liable to pay the
Applicant in the event that the court found that the First Respondent
was liable for his share of the amount that the Applicant had paid
arising from the fact that the three partners (as shown above)
had
practised in partnership as attorneys. This, Mr Snyman and Ms Granova
gladly did and I am thankful for that. Three calculations
were
produced, one by the Applicant's counsel and two by the First
Respondent's counsel.
[8]
CALCULATIONS OF THE FIRST RESPONDENTS LIABILITY
These
calculations were given as follows:
8.1.
APPLICANT'S COUNSEL'S CALCULATIONS
I
am here repeating verbatim what the parties' counsel say and do in
arriving at the amount that the First Respondent should be
liable
for. "2. The Applicant's counsel proposes the following
calculations to be followed:
2.1
Amount paid is R333.079.78 (if Annexure "R4" and
specifically pp 124 of the Bundle be accepted as proof that the
Applicant paid all the amounts reflected there as paid);
2.2
From that is to be deducted R76,834.90 which is clearly fees
including that to be paid by the third partner = R256,244.88
2.3
We should also deduct the amounts in respect of the court order dated
18 November 2005 against Mokhuse. The amount of those
costs is
R27.981.50 plus R39.492.45 = R67,473.95 = R188,770.93
2.4
R67,473.95 divided by 3 = R22,491.32
2.5
Then we need to add the amount of the taxed costs as against our
clients R49,647.15 The total is then R238.418.08.
2.6
Decided (sic) by 2 = R119 209,04
2.7
Plus R22.491.31 (14 of the curator and inspection costs)
2.8
The total payable by the First Respondent is R141.700.35 according to
these calculations."
8
2. FIRST RESPONDENT'S COUNSEL'S CALCULATIONS
"3.
The First Respondent's calculations are as follows:
Scenario
One - premised on the payment by Applicant to the Law Society and the
Fidelity Fund:
3.1
Annexure "A6" (pp 41-43 of Bundle):
3.1.1
R17.500.00 ("less payment received") + R32.546.15 (on 26
Junly (sic) 2006 you paid the outstanding balance of R32,546.15");
3.1.2
R20.000.00 ("to the Fund on 22 December 2006")
3.1.3
TOTAL: R70.046.15, and the First Respondent will be liable for
R23.348.71
3.2
Respondent aver that the letter of 14 November 2007, Annexure "R1"
pp113 does not say from whom the amount of R141,193.55
was received.
Applicant states that the letter was clearly addressed to the
applicant and this question does not arise from the
papers. The court
is to determine if this amount is to be added to this calculation in
the light of the following. If this is added
the total will come to
R211,239.70. In that case, 1/3 liability of the First Respondent will
be R70,413.23" Scenario Two -
premised on the fact that "
Costs recoveries" and " CLM [claim] recoveries" were
all paid by the Applicant
to the Fidelity Fund for the account of all
three partners as partners as appears on pp 124 of the Bundle
3.3
R269.079.78 ("Costs recoveries") + R 64,000.00 ("CLM
[claim] recoveries") = R333,079.78,V3 of which is R111.026.59;
3.4
R17,500.00 ("less payment received") + R32.546.15 ("on
26 Junly (sic) 2006 you paid the outstanding balance of
R32,546.15")
(Annexure "A6", pp 41-43 of the Bundle) = R50,046.15 V2 of
which (because it was only for the striking
of the Applicant and the
First Respondent) is R25.023.08.
3.5
In light of the above, the total payable by the First Respondent to
the Applicant would be R136,049.66."
[9]
On 10 June 2011 Ranchod J granted prayer 2 of Part A of the notice of
motion and reserved the costs.
[10]
The question I need to answer is whether the Applicant is indeed
entitled to prayers 1 and 2 as amended of Part B of the notice
of
motion.
Ms
Granova holds the view that the First Respondent is not liable to pay
the Applicant because the claim has prescribed. Her further
view is
that the Applicant cannot act on behalf of the Attorneys Fidelity
Fund without the necessary authority. The further submission
seems to
be correct. If correct the Applicant will not be entitled to prayer 1
of Part B of the notice of motion.
PRESCIPTION
[11]
Prescription does not seem to have been raised in any of the
correspondence at the court's disposal. Prescription is raised
for
the first time in the First Respondent's opposing affidavit. The
First Respondent addressed a letter to the Attorneys Fidelity
Fund
wanting to satisfy himself that the Applicant had infact paid the
amount that he claimed to have paid. The Fund responded
to the First
Respondent's letter. The Applicant, at the time of preparing the
founding affidavit, stated in paragraph 6.24 of the
founding
affidavit that he, at the time, had already paid in excess of
R209.000.00 in respect of fees and the amount payable to
the Fidelity
Fund. This was never controverted. The First Respondent's attorney K
Mnisi of Mnisi Attorneys on 14 August 2009 addressed
a letter to the
Applicant's attorneys confirming, at the time, that their clients,
(referring to the First Respondent and the Applicant)
were "jointly
and severally liable for the trust short falls and for the costs of
the application for their strucking (sic)
from the roll of practicing
(sic) as attorneys." This statement in so many words, stresses
and emphasises that liability at
the time existed. The statement
further stresses that the two parties were liable jointly and
severally. That meant that if the
one paid the other would be
absolved. The nub of the matter is that if the one party paid he then
would have recourse to the other
party who then would have to repay
the paying party his share of the debt. This is Mr Snyman's
submission which, in my view, is
correct. The acknowledgment of
liability by the First Respondent simply means that prescription
started to run from the day that
the First Respondent acknowledged
his liability to pay the money which was due owing and payable. This
again is Mr Snyman's submission
which again, in my view, is correct.
In Cape Town Municipality v Allie NO
1981 (2) SA 1
at 1E the
following was said:
"Any
acknowledgment of liability which would have served to interrupt the
running of prescription at common law will serve
to interrupt it in
terms of Section 14(1) of the Prescription - Act 68 of 1969." In
Petzer v Radford (Pty) Ltd
1953 (4) SA 314
(N) at 317 H to 318 A
Broome, JP said:
"
To interrupt prescription an acknowledgment by the debtor must amount
to an admission that the debt is in existence
and
that he is liable therefor. An admission that the debtor had incurred
the obligation, coupled with an assertion that the obligation
has
been extinguished, will not interrupt prescription. The sub-section
requirea an "acknowledgment" by the debtor! This
is what
the First Respondent did in this matter.
[12]
The acknowledgment by the First Respondent is very clear. He stated
that the debt existed and that he was liable therefor.
Mr Snyman's
submission that the debt never prescribed is therefor, correct. The
First Respondent is, indeed, liable to repay the
amount which
represents his share in the debt that they both had to pay. The
letter of 14 August 2009,due to the nature of the
case, was properly
admitted.
[13]
This then takes me to the determination of the amount that the First
Respondent is liable for. Evidence has disclosed that
an amount of
R333.079.78 was paid. This amount could only have been paid by the
Applicant because no one else has claimed to have
paid the amount.
The Applicant in his founding affidavit said that he had paid in
excess of R209.000.00 in respect of fees and
amounts payable to the
Fidelity Fund. This was never controverted. Rooth Wessels Maluleke
acting for the Law Society and the Fund
itself support the Applicant
in this regard. (See pages 41 and 124 of the paginated papers).
[14]
I have had a proper consideration of the calculations of the First
Respondent's liability provided by Ms Granova and Mr Snyman
for which
I again sincerely thank them, and have found the calculation in
scenario two more acceptable. This then means that the
First
Respondent is liable to pay the Applicant the amount of R136.049.67
which is arrived at by adding together the two amounts
namely
R111.026.59 and R25.023.08 which then gives us the amount of
R136.049.67.
[15]
Ranchod J granted prayer 2 of Part A of the notice of motion which
effectively means that the interdict and restraint should
lapse as
soon as the First Respondent pays the amount of R136.049.67 to the
Applicant.
[16]
The Applicant has not made out a proper case to be entitled to an
order in terms of prayer 1 of Part B of the notice of motion
as
amended. There is no cession that the Applicant proved or authority
to act on behalf of the Attorneys Fidelity Fund. Prayer
1 should
accordingly fail.
[17]
COSTS
Costs,
in my view, should follow the result. The circumstances of the case
are such that costs on a punitive scale are warranted.
[18]
I in the result make the following order:
18.1
The First Respondent is ordered to pay the amount of R136.049.67 to
the Applicant.
18.2
The First Respondent is ordered to pay interest on the said amount of
R136.049.67 at the rate of 15.5% per annum from 11 August
2009 to
date of payment.
18.3
The First Respondent is ordered to pay the costs of the application
on the scale as between attorney and client which costs
include the
reserved costs of 10 June 2011.
18.4
Upon payment of the amount of R136.049.67 by the First Respondent to
the Applicant Ranchod J's order of 10 June 2011 will lapse.
MSIMEKI
J,
JUDGE
OF THE HIGH COURT NORTH (GAUTENG, PRETORIA)
Counsel
for applicant:Advocate Snyman
Counsel
for respondent: Advocate Granova
Attorneys
for applicant:Ralesela Rufus Ramonetha Attorneys
Attorneys
for 1st respondent:F..S. Kabini Inc.
Attorneys
for 2nd respondent: Mnisi Attorneys
Date
heard: 23 April 2012
Date
of judgment: