About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: High Court, Northern Cape Division, Kimberley
SAFLII
>>
Databases
>>
South Africa: High Court, Northern Cape Division, Kimberley
>>
2012
>>
[2012] ZANCHC 51
|
|
Peyper Sesele Inc t/a Peyper Sesele Attorneys v Ga-Segonyana Municipality (2008 / 2011) [2012] ZANCHC 51 (11 May 2012)
Reportable:
Circulate
to Judges:
Circulate
to Regional Magistrates
Circulate
to Magistrates:
YES
/ NO
YES
/ NO
YES
/ NO
YES
/ NO
NORTHERN
CAPE HIGH COURT, KIMBERLEY
Saakno: / Case number:
2008 / 2011
Datum verhoor: / Date
heard:
11 / 05 / 2012
Datum gelewer/Date
delivered:
In
the matter between:
PEYPER
SESELE INCORPORATED t/a
PEYPER
SESELE ATTORNEYS
.....................................
Applicant
and
GA-SEGONYANA
MUNICIPALITY
............................
Respondent
Coram:
Lacock
R
REASONS FOR JUDGMENT
LACOCK J:
In this matter the
applicant, a firm of attorneys, had a summons issued against the
respondent for payment of an amount of R1,606,138.72
plus interest
thereon in respect of legal services allegedly rendered by the
applicant to the respondent. The applicant relies
on a “
partly
written partly oral agreement of mandate
” as its cause of
action. The terms fo the agreement pleaded, read:
“
5.1. The plaintiff would
act as attorneys and conveyancers on behalf of the Defendant in inter
alia various evictions in
Mothibistad
,
the transfer of property from the National Government to the
Defendant and the transfer of
4 000
(four thousand)
properties by way of
certain endorsements, registrations and applications situated in the
location of
Mothibistad
,
which transfers would be effected to people in the community.
5.2. The Defendant would pay to
the Plaintiff all agreed, alternatively reasonable fees for
professional services rendered by the
Plaintiff to the Defendant,
alternatively an apportionment of such fees should the transfer of
the properties not be completed.
5.3. Plaintiff shall render
accounts to Defendant in accordance with the prescribed tariffs for
conveyancing work laid down by the
Law Society of the
Northern Cape
, alternatively the
Law Society of
the North West Province
.
”
It is common cause
that the alleged written part of the agreement is contained in a
letter addressed by the respondent to the
applicant, the contents
whereof read,
“
APPOINTMENT LETTER:
1. VAROUS EVICTIONS MOTHIBISTAD
(PORTION 3 OF FARM 690 KURUMAN RESERVE)
2. TRANSFER: NATIONAL GOVERNMENT
/ GA-SEGONYANA MUNICIPALITY PORTION 3 OF FARM 690 KURUMAN RESERVE
KURUMAN
3. TRANSFER: LOCATION OF
MOTHIBISTAD 4000 PROPERTIES
I hereby appoint Messrs Peyper
Attorneys to attend to various evictions of illegal land owners in
the Mothibistad area, including
but not limited to the Mapoteng area
in the Magojaneng Village.
In order to finalise the eviction
matter, the transfer of the said Portion 3 of Farm 690 Kuruman
Reserve, is essential to take place.
I discussed during my
consultation with Klaas Majaphage and Madalane Regal during January
2009 to leave no stone unturned in executing
and finalizing this
matter.
”
For the remaining part
the agreement the applicant relies on oral terms. In its particulars
of claim the applicant further alleges,
“
The Plaintiff duly
complied with all its obligations in terms of the agreement up until
the Defendant cancelled the Plaintiff’s
mandate.
7.
7.1. The fees which are now due,
owing and payable to the Plaintiff in respect of professional
services rendered to the Defendant
amounts to
R2 602 138.72
.
7.2. Copies of the statements of
account are appended hereto marked annexure “
C
”
.
7.3. The statements of account
are drafted in accordance with the guidelines for conveyancing work
as prescribed by the
Law Society of the Northern Cape
,
alternatively the
Law Society of the North West Province
.
”
The respondent entered
appearance to defend the matter, whereupon the applicant applied for
summary judgment in terms of Rule
32 of the uniform Rules of Court.
In her supporting affidavit for purposes of the application, Ms
Regal, representing the applicant,
stated,
“
The Respondent gave notice
of his intention to defend the action. It is my opinion that the
Respondent does not have a bona fide
defense to the Applicant’s
claim and that notice of intention to defend the action was given
only for purposes of delay.
I verify the cause of action and
the amounts claimed by the Applicant.
”
Mr Toto, the acting
corporate services manager of the respondent, responded to the
aforesaid averments as follows,
“
On or about January 2009,
Ga-segonyana Municipality, appointed the firm Peyper Majaphage
Attorneys at the time, to:
convert Deeds of Grant into full
Title Deeds at Mothibistad.
institute various eviction
proceedings at Mothibistad and surrounding areas against people who
illegally occupied land belonging
to Ga-Segonyana Local
Municipality.
Transfer property from National
Government to Respondent (defendant).
4.
In terms of the Deeds of Grant,
the Applicant was appointed to convert the individual Deeds of Grant
to full Title Deeds. The Department
of Cooperative Governance Human
Settlements and Traditional Affairs (COGHSTA) a roleplayer, was to
grant all occupants full Title
Deed, as a National Policy and being
the funder, the Department (COGHSTA) will pay the attorneys appointed
by Ga-segonyana Local
Municipality in terms of its tariff schedule.
5.
The Applicant will undertake the
process of converting the Deeds of Grants and upon completion of its
mandate, submit its invoice
to the Department (COGHSTA) for payment.
At first instance the Department refused to pay for the invoice as it
was not in accordance
with its approved tariff schedule and raised
concerns on the poor quality of the work done to date on the
conversion of Deeds of
Grants.
6.
Subsequently a meeting was
scheduled between the Department (COGHSTA) and the Applicant’s
representatives, Messrs Madalane
Regal and Klaas Majaphage, an
agreement was reached that the Department (COGHSTA) would honour its
approved tariff of R800 per
erven. See correspondence marked OPT1.
7.
At all material times, the
Applicant knew that the payment will be done in accordance with the
Departmental tariff and they agreed
to submit the invoice with the
correct tariff and were duly paid.
”
(It is common cause
that the reference to COGHSTA is a reference to the Department of
Cooperative Governance Human Settlements and
Traditional Affairs.)
The matter came before
me on 11 May 2012, on which date I made the following order:
“
1. THE APPLICATION FOR
SUMMARY JUDGMENT IS DISMISSED.
2. THE DEFENDANT IS GRANTED
LEAVE TO DEFEND THE ACTION.
3. FURTHER PAPERS HEREIN SHALL
BE FILED IN ACCORDANCE WITH THE UNIFORM COURT RULES AS IF NOTICE OF
INTENTION TO DEFEND WAS GIVEN
ON DATE OF THIS ORDER.
4. COSTS WILL BE COSTS IN THE
CAUSE.
”
What follows are the
reasons for the said order made.
Rule 32(1) provides,
“
Where the
defendant has delivered notice of intention to defend, the plaintiff
may apply to court for summary judgment on each of
such claims in the
summons as is only-
on a liquid
document;
for a liquidated
amount in money;
for delivery of
specified movable property; or
for ejectment;
together with any
claim for interest and costs.
”
Although Mrs Erasmus
submitted that the amount claimed is not a liquidated amount, i do
not find it necessary to deal with this
argument in view of my
findings that follow hereunder.
The applicable
principles in the consideration of an application for summary
judgment had been properly summarised by Blieden
J in
MARSH AND
ANOTHER V STANDARD BANK OF SA LIMITED
2000 (4) sa 947 (WLD).
These are
“
1. The Rule requires the
defendant to set out in his affidavit sufficient facts which, if
proved at the trial, will constitute an
answer to the plaintiff’s
claim. Breitenbach v Fiat SA (Edms) Bpk
1976 (2) SA 226
(T); District
Bank Ltd v Hoosain and Others
1984 (4) SA 544
(C).
2. At the summary judgment stage
of the proceedings it is not for the Court to decide any balance of
probabilities or determine
the likelihood of the deponent’s
allegations being true or false. Maharaj v Barclays National Bank Ltd
1976 (1) SA 418
(A) at 426 where at A-E the position is succintly
summarised by Corbett JA (as he then was) as follows:
‘
Where
the defence is based upon facts, in the sense that material facts
alleged by the plaintiff in his summons, or combined summons,
are
disputed or new facts are alleged constituting a defence, the Court
does not attempt to decide these issues or determine whether
or not
there is a balance of probabilities in favour of the one party or the
other. All that the Court enquires into is: (a) whether
the defendnat
has “fully” disclosed the nature and grounds of his
defence and the material facts upon which it is founded,
and (b)
whether on the facts so disclosed the defendnat appears to have, as
to either the whole or part of the claim, a defence
which is both
bona fide and good in law. If satisfied on these matters, the Court
must refuse summary judgment, either wholly or
in part, as the case
may be. The word “fully” as used in the context or the
Rules (and its predecessors), has been
the cause of some judicial
controversy in the past. It connotes, in my view, that while the
defendant need not deal exhaustively
with the facts and the evidence
relied upon to substantiate them, he must at least disclose his
defence and the material facts
upon which it is to decide whether the
affidavit discloses a bona fide defence... At the same time the
defendnat is not expected
to formulate his opposition to the claim
with the precision that would be required of a plea; nor does the
Court examine it by
the standards of pleading.
’
3. The subrule does not require
the defendant to satisfy the Court that his allegations are believed
by him to be true. It is sufficient
if the defendant’s
affidavit shows that there is a reasonable possibility that the
defence he advances may succeed on trial.
Shepstone v Shepstone
1974
(2) SA 462
(N) at 467A.
The Court must be apprised of
the facts upon which the defendnat relies with sufficient
particularity and completeness so as to
be able to hold that if
these statements of facts are found at the trial to be correct,
judgment should be given for the defendant.
Summary judgment is an
extraordinary and stringent remedy and it is always necessary to
keep this in mind when exercising a discretion
whether to grant or
refuse it. Arend and Another v Astra Furnishers (Pty) Ltd
1974 (1)
SA 298
(C) at 305.
A Court must be careful to guard
against injustice to the defendnat who is called upon at short
notice and without the benefit
of further particulars, discovery or
cross-examination to satisfy it that he has a bona fide defence.
Breitenbach v Fiat (supra
at 227D-H).
”
(949C to 950B).
The respondent in
essence relies on a tri-partite agreement concluded between the
applicant, the respondent and the Department
of COGHSTA in terms
whereof the applicant undertook to render certain professional
services to the respondent, and for which
services once duly
executed, the said Department would pay the applicant.
7.1 Confirmation of
this alleged agreement is to be found in a letter dated 8 February
2012 addressed by COGHSTA to the respondent,
reading,
“
1. During the municipal
demarcation process, part of the municipalities, towns and rural
areas that were previously demarcated to
the North West Province were
re-demarcated to the Northern Cape Province. The following areas were
re-demarcated to the Northern
Cape Province:
Pampierstad
Moshaweng
Mothibistad
2. This Department then, together
with the respective municipalities collectively decided to assist the
communities with the conversion
of property ownership from the
existing “Deeds of Grants” issued in terms of
Proclamation R293 of 1962 (Bophutatswana
Legislation), which
prohibits them from full ownership of the properties to full
ownership.
3. This process was conducted
under the National Housing Subsidy Programme which promotes full
ownership of all state subsidized
housing and the tariff per
transfer, to be paid to the attorney was in terms of the Housing
Subsidy Quantum as approved by the
Minister.
4. Payper Sesele Attorneys Inc
endorsed 187 “Deeds of Grants” and an amount of
R149,600.00 was paid to them on the 16th
of September 2010 for work
done.
5. However, during the year 2011,
our Department together with your newly appointed attorneys, Nico
Gouws Attorneys, discovered
that the work done by Peyper Sesele
Attorneys Inc was null and void as the land still vested in the North
West Province. Our Department
is now in the process of transferring
the land from the North West Province to the Northern Cape Province.
Once completed, then
the respective “Deeds of Grants” can
be endorsed. This was confirmed by the Registrar of Deeds in
Vryburg.
”
7.2 It appears from
annexures OPT2 and OPT3 to Mr Toto’s opposing affidavit that
the applicant in fact rendered an account
to COGHSTA and was paid an
amount of R149,600.00 in respect of its fee “
for
registration of 187 erven at R800.00 each
” in Mothibistad.
It is clear that,
should the respondent succeed with these averments, it would
constitute a complete defence to the applicant’s
claim. I
therefore dismissed the application for summary judgment.
_______________
HJ Lacock
JUDGE
On
behalf of Applicant:
Adv WJ Coetzee oio Haarhoffs Inc.
On
behalf of Respondent
: Adv S Erasmus oio Duncan & Rothman Inc