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[2012] ZAGPPHC 292
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Puckrin and Another v HACJ Accounting Software Services (Pty) Ltd and Another (40439/2012) [2012] ZAGPPHC 292 (16 November 2012)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
CASE
NUMBER: 40439/2012
DATE:16/11/2012
In
the matter between:
CEDRIC
ELDRID
PUCKRIN
..........................................................
1st
Plaintiff/Applicant
SONIKA
MENTZ
...............................................................................
2nd
Plaintiff / Applicant
And
HACJ
ACCOUNTING SOFTWARE
...............................................
1st
Defendant /Respondent
SERVICES
(PTY) LTD
HENDRIK
ANDRE
COETZEE
........................................................
2nd
Defendant/Respondent
JUDGEMENT
1.
] This is an application for Summary Judgement by the plaintiffs
against the second defendant for advocates fees, in the amount
of:
Claim 1 - R116 480,00 in respect of first plaintiff and claim 2 R108
500,00 in respect of the second plaintiff.
2.]
Summons were duly served on the 1st defendant on 16 July 2012. First
defendant did not enter an appearance to defend. Service
was effected
in terms of Rule 4 (1) (a) (v),
3.
] The second defendant could not be served at 202 Murryfield, 16
Corlett Drive, lllovo Johannesburg and the occupant of the premises
informed the sheriff that the second defendant had moved.
4.
] It must be mentioned that the first defendant had left his
registered address and premises were locked without a forwarding
address or notice of change of registered address.
5.
] Second defendant was personally served with the combined summons at
7 Ouzerust Avenue Hartenbos Mosse! Bay Western Cape on
5 September
2012.
6.]
The second defendant served his Notice of Intention to Defend on 18
September 2012.
1.]
First and second plaintiffs served and filed their Application for
Summary Judgement on the 3rd of October 2012. The initial
date of
hearing being 1st November 2010.
2.]
Second defendant served its affidavit resisting Summary Judgement
received by the Registrar on 30 October 2012. The late fiiing
of the
affidavit having been condoned after an application from the bar and
was not opposed by the plaintiff’s counsel.
3.
] Plaintiffs claim is based on the amount of R116 280,00 and R108
500,00 for professional fees arising from the plaintiff’s
legal
representation to the first and second defendants in the North
Gauteng Court following a brief by Wiikens Attorneys who were
the
first and second defendants attorneys of record at the time.
4.]
The professional services rendered to the defendants dates back to 24
April 2010 to 29 April 2012. The fees remained unpaid
ever since. The
fees claimed were certified by the Fee Enquiry Committee of the
Pretoria Society of Advocates on 6 April 2011.
5.
] Second defendant seeks to oppose the application for Summary
Judgement. It was his argument, through counsel, that it is trite
that Summary Judgement is a drastic remedy before reaching the trial
stage;
11.1
Second defendant does not have to prove his defence but to satisfy
the court that he has a bona fide prima facie defence. The
test is
not too high as compared to proof on a balance of probabilities.
11.2
The prima facie defence must constitute an answer to the plaintiff’s
claim.
11.3
Counsel confirmed that he is only acting on behalf of the second
defendant who wanted to be given an opportunity to except
to
plaintiffs claim for lack of compliance with Rule 18(4) and (6) of
the Uniform Rules of Court in that:
(i)They
lack the necessary averments to sustain any cause of action against
the second defendant; and
(ii)
vogue and embarrassing, on the ground that:
a.
) the plaintiff’s claims are founded upon an agreement that the
parties to which have not been identified with sufficient
particularity more particularly, the plaintiffs have failed to plead
whether the agreement was entered into between:
(i)
The plaintiff’s and the first and second defendants represented
by Judy Wiikens for Wilkens Attorneys; or
(ii)
The plaintiffs and the first and second defendants represented by
Judy Wilkens from Wilkens Attorneys.
b.)
which have not been set forth with any particularity regarding:
(i)
the date of conclusion of such agreement (acceptance of brief);
(ii)whether
such agreement, in particular; the instruction
the
acceptance thereof was it oral or in writing
c.
) failed to plead that it was a term of the agreement relied upon
that:
(i)
the first and second defendant would be liable:
towards
the plaintiffs as opposed to Wilken Attorneys for the amounts claims;
to
pay the amounts to the first and second plaintiffs
d.
) The first and second defendant would be liable jointly and
severally liable, the one paying the other to be absolved, for
payment of the sum of:
R116
280,00 to the first plaintiff
R105
500,00 to the second plaintiff
Base
on these deponents to the affidavit in support of the application for
Summary Judgment purports to verify an excipiable cause
of action;
and therefore the application for Summary Judgement should be
dismissed.
12.
] It is admitted that, as a ground of his defence, the first
defendant duly represented by second defendant instructed Wilkens
Attorneys for professional services and while carrying on her
professional duties Wilkens Attorneys engaged and briefed counsel
first plaintiff and second plaintiff and correspondent attorneys
Savage Jooste in Pretoria:
(a)
It is not denied that reasonable fees to her services will be paid
and inclusive of disbursements specifically agreed and authorised
by
the first defendant.
(b)
Pursuant to the instructions Wilkens Attorneys instructed Savage
Jooste as correspondents and briefed first and second Plaintiffs
as
counsel in the proceedings.
6.]
First Defendant authorized an amount of R42 500,00 in respect of
first plaintiff and R20 000,00 in respect of second plaintiff
for the
services to be rendered by them.
6.1
In the finalization of the matter, which took two days, Wilkens
rendered an invoice of R135 000,00 in respect of her fees and
“advocates” (sic) no names attached.
The
first defendant refused to pay.
6.2
The amount mentioned in paragraph 13 above was not paid either. No
reason was advanced as to why this amount was not paid at
least.
7.
] Second defendant argued that Wilkens Attorneys instituted an action
against first and second defendant in South Gauteng High
Court for
payment of her invoices rendered in the proceedings by first and
second plaintiffs:
7.1
Second defendant argues that this is a duplication of claims and have
defended the Wilkens action. I must just indicate that
we have not
been favoured with the copies of this South Gauteng High Court
proceedings nor being informed of the status of the
case today let
alone the particulars of the ciaim to establish whether it is a
duplicate claim or not.
8.
] In the amplification of his denial second defendant denies ever
discussing the issue of fees with the first and second defendant
nor
ever contracting them in respect of fees or any other issue and that
he never personally bound himself for the fees due to
the plaintiffs
and Wilkens Attorneys. He further denied receiving any invoice from
the plaintiffs.
9.]
Plaintiffs argued, through counsel, that the nature of the
relationship between attorney, client and advocate has been accepted
and approved as set out in the decision of Bertelsman v Per
1996 (2)
SA 375
T at 380:
It
was held that:
an
advocate has only one client and that is the litigant for whom he
acts: it remains open to counsel to sue his client; the attorney
acts
as the agent of the client when instructing counsel.
This
decision was also confirmed in Serrurier and Another v Korzia &
Another
2010(3)
SA 166 W.
10.
] It is common cause that:
a.
) Second defendant was a director of the first defendant at the time
when professional services were rendered to them;
b.
) The first defendant was represented by the second defendant in
instructing Wiikens Attorneys as attorney of record;
c.
) Second defendant was a party to the proceedings and was there in
count for the whole duration of the case which lasted two
days;
d.
) Even though the first defendant authorized to pay at least R62
500,0
- nothing was paid to date;
e.
) The case was successful and the first and second defendant were
awarded costs on attorney and client scale. (Not denied.)
11.]
The second defendant can not start to deny the mandate and authority
given
to his attorneys of record.
12.
] Services were rendered in his presence and did not object to such
legal
representation.
13.
] The second defendant as the director of his company was the only
warm body to represent the corporate first defendant. The
decisions
taken and implemented on behalf of the first defendant by himself. He
cannot deny that and therefore estopped from denying
his authority as
director and only executive of the first defendant.
14.
] On the issue of summons being open to exception, it appears that
the summons have clearly spelt out the cause of action and
the
parties involved and therefore this argument has no merit.
15.
] On the issue of a duplicate claim one is left to wonder if it
really happened:
no
copies of summons or of the proceeding were shown to court, if
really, there is such claim and is a duplicate , then the Defendant
has a remedy , (1.) to stay
(2.)
dilatory plea of lis pendens I could not find any duplication of
claim here.
16.]
I now turn to the fact that a denial only with no positive facts can
not stop an application for Summary Judgement.
Defendant
has to come out clear with the bona fides that he is not trying to
delay the proceedings unnecessary
(1.)
Service could not have been done earlier due to the fact that the 1st
and 2nd Defendant left their registered addresses.
(2.)
The 2nd Defendant had to be served in Cape Town.
24.
] The second defendant has just indicated that he is no longer a
director of the second defendant:
Who
is left to guess as where did the first defendant moved to? Where is
their present registered addresses?
Why
were creditors not informed that by the closing down or moving to
another place?
Second
defendant can not prove as to when did he resign as director and who
replaced him?
Likelihood
is that the second defendant want to buy time and to delay this
matter and has shown himself not have a bona fide defence.
Second
defendant’s argument cannot be accepted and therefore rejected
as such. The purpose of Summary Judgement will be defeated
if leave
is granted to the second defendant to defend.
I
find that the second defendant was part and parcel of the first
defendant at the time when the professional services were rendered
by
the plaintiffs.
I
agree fully with the conclusion reached in the Bertelsmans case as
confirmed by the Serrurier case of 2010 that plaintiff’s
have a
choice
as who to sue in this regard. Services were rendered to the benefit
of first and second defendant.
I
am further in agreement with the view taken in Heddad v Livestock
1961(2) WLD 362 that in the absence of notice a principal cannot,
by
any instruction to his agent escape liability for acts done by the
agent which fall within the apparent scope of his authority.
Wilkens
Attorneys carried out its mandate and briefed counsel who acted on
behalf of first and second Defendant, who happened to
have attended
to court proceedings to their satisfaction. When they have to pay
they disappear. Where is the bona fides?
My
findings is that:
(a.)
Plaintiffs are entitled to sue first and second defendant each one
paying the other to be absolved.
(b.)
Further delays of this remedy, will frustrate putting into effect of
such remedy.
(c.)
The second defendant appearance to defend is aimed at delaying the
process.
(d.)
The second defendant has failed to show a bona fide defence to the
case against the defendants and therefore his argument is
rejected.
In
the premises Summary Judgement is granted in accordance with the
draft order.
NKOSI
(AJ)
Date
heard: 1 November 2012 Date of Judgment: 16 November 2012
1.
On behalf of the Plaintiff:
1.1
ATTORNEYS:
Savage,
Jooste & Adams Inc
141
Boshoff Street
Nieuw
Muckleneuk
PRETORIA
Tel:
012-452 8200
Ref:
Mr JK Hendey/H071/12
1.2
COUNSEL:
Adv.
G Naude
2.
On behalf of the First Respondent
2.1
ATTORNEYS
Gerhard
Truter Attorneys
608
Reitz Street
Sunnyside
PRETORIA
Tel.:
011 -789 4598
Ref.:
NK Botha/Y9097
2.2
COUNSEL:
Adv.
N Alli
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
REPUBLIC OF SOUTH AFRICA
Case
no: 40439/12
DATE:19/11/2012
In
the matter between:
CEDRIC
ELDRID PUCKRIN 1st PLAINTIFF/APPLICANT
SONIKA
MENTZ 2nd PLAINTIFF/APPLICANT
and
HACJ
ACCOUNTING SOFTWARE 1st DEFENDANT/RESPONDENT
SERVICES
(PTY) LTD
HENDRIK
ANDRE COETZEE 2nd DEFENDANT/RESPONDENT
DRAFT
ORDER
Having
read th£ papers and heard counsel, the court grants the
following order:
1.
That summary judgment is granted against the Second Defendant jointly
and severally with any order that may be granted against
the First
Defendant for:
1.1.
payment to First Plaintiff in the amount of R116 280,00;
1.2.
payment to the First Plaintiff of interest on the amount of R116
280,00 at 15.5% p.a. from the 28th of June 2010 to date of
payment;
1.3.
payment to Second Plaintiff in the amount of R108 500,00;
1.4.
payment to the Second Plaintiff of interest on the amount of R108
500,00 at 15.5% p.a. from the 6th of May 2010 to date of
payment;
1.5.
Costs of the action as between attorney and client.
By
order
THE
REGISTRAR