Ramsamy v Nonxuba (5008/07) [2008] ZAFSHC 6 (14 February 2008)

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[2008] ZAFSHC 6
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Ramsamy v Nonxuba (5008/07) [2008] ZAFSHC 6 (14 February 2008)

IN
THE HIGH COURT OF SOUTH AFRICA
(ORANGE
FREE STATE PROVINCIAL DIVISION)
Case
No. : 5008/07
In
matter between:
JUSTICE
REICHLIN RAMSAMY
Plaintiff
And
ZUKO
MACK MICHAEL NONXUBA
Defendant
HEARD
ON:
24
JANUARY 2008
JUDGMENT
BY:
C.J.
MUSI, J
_____________________________________________________
DELIVERED
ON:
14
FEBRUARY 2008
[1] This
is an opposed application for summary judgment for the payment of the
sum of R104 166.04 plus interest.
[2] The plaintiff and the
defendant are attorneys. The plaintiff, who practices in Durban, was
the attorney of record for Andile Mgoduka
in an action against the
Road Accident Fund (RAF) under case number 5631/2002 in the Durban
and Coast Local Division of the High
Court of South Africa.
[3] The merits of the
matter between the RAF and Mgoduka were settled where after, at the
instance and request of Mgoduka, the plaintiff’s
attorney’s firm,
Justice Reichlin Ramsamy Attorneys, were substituted by Nonxuba
Incorporated, a company with limited liability
duly registered as
such in terms of the company laws of South Africa. Nonxuba
Incorporated proceeded to render professional services
to Mgoduka in
relation to his claim.
[4] On
02 May 2006 the defendant gave the following written undertaking to
the plaintiff.
“
UNDERTAKING
I, the undersigned:
ZUKO MACK MICHAEL NONXUBA
of Nonxuba
Incorporated, situated at No: 11 Zeiler Street, Queenstown make an
undertaking to settle Messrs Justice Reichlin Ramsamy
taxed Attorney
and Client Bill of Costs, Rodel Finance Loans and disbursements due
to Messer Reichlin Ramsamy Attorneys as previously
agreed upon
finalisation of the claim of Andile Mgoduka.
THUS DONE AND
SIGNED AT QUEENSTOWN ON THIS 2
ND
DAY OF MAY 2006 IN THE PRESENCE OF THE UNDERMENTIONED.
(Signed) ZMM NONXUBA “
[5] The
litigation in the matter between Mgoduka v RAF was finalised on 23
November 2006 when the court awarded Mgoduka the sum of
R751 448.62
plus costs including the qualifying fees of experts.
[6] The
defendant engaged professional tax consultants to draw a bill for
taxation of fees and disbursements due to Nonxuba Incorporated.
That
bill has not yet been taxed by the Taxing Master.
[7] On 24 August 2007 the
plaintiff wrote the following letter to the defendant.
“Nonxuba
Incorporated
Per
telefax 051 447 8881
Dear Sirs,
Re:
Andile Mgoduka / RAF
YOUR
CORRESPONDENCE DATED 23 AUGUST 2007 REFERS:
We
require an undertaking that our fees and disbursements in the amount
of R104 166.04 would be paid upon receipt of the
cost
herein
(my underlining).
Should
we not receive the said undertaking within 5 days we would be
proceeding with summons against your firm.
Yours Faithfully,
(Signed) JUSTICE REICHLIN RAMSAMY
“
[8] The
plaintiff’s attorney and client bill was taxed in May 2007 and the
sum of R104 166.04 represents the balance due and certified
under the
taxed bill as fair and reasonable for the services rendered by the
plaintiff to Mgoduka, less the amount previously received
by the
plaintiff.
[9] On 25 October 2007
the plaintiff issued summons against the defendant wherein he
requested judgment against the defendant for
the payment of R104
166.04 plus interest and costs.
[10] On
25 October 2007 the defendant filed his notice of intention to defend
the action. On 12 November 2007 the plaintiff filed
a notice that
application for summary judgment would be made on the 29 November
2007.
[11] On
23 November 2007 the plaintiff filed a notice of removal from the
roll. On the same day the plaintiff informed the defendant
by letter
about the removal. The relevant portions of the letter read as
follows:
“
SUMMARY
JUDGEMENT APPLICATION: 29 NOVEMBER 2007 AT 9H30
We
refer to the above matter and the application for summary judgment
that was set down for hearing on the above mentioned date.
Kindly
take note this matter has been removed from the roll. A copy of the
notice of removal from the roll was also delivered at
your offices.
It
is our instruction that the main action will proceed
”
(my underling)
[12] On
11 December 2007 the plaintiff filed a notice of set down whereby the
same matter was set down for 24 January 2008 for an
application for
summary judgment. This notice was delivered to the defendant on 11
December 2007. The defendant filed his affidavit
in terms of Rule
32(3)(b), together with his plea and Rule 14 notice on 19 December
2007.
[13] The
defendant challenged the application on numerous grounds. He alleged
that he signed the undertaking of 02 May 2007 on behalf
of Nonxuba
Incorporated and not in his personal capacity; that the plaintiff
also acted on behalf of Messrs Justice Reichlin Ramsamy
Attorneys and
not in his personal capacity; that the plaintiff’s claim will only
arise after the RAF has paid the taxed costs of
Nonxuba Incorporated;
that Andile Mgoduka has a substantial interest in this matter and
should therefore have been joined; that the
taxed bill of costs is a
liquid document and should have been attached to the application and
that the letter of 23 November 2007,
mentioned in paragraph 11 above,
constituted an agreement between the parties.
[14] My conclusion in
relation to some of the points raised by Mr Quinn SC, on behalf of
the defendant, renders it unnecessary for
me to deal with all the
issues raised.
[15] Mr
Quinn argued that by removing the application for summary judgment
from the roll on 23 November 2007 the plaintiff took a
further
procedural step and must therefore be deemed to have acknowledged the
defendant’s right to defend the action. Mr Pillay
SC, on behalf of
the plaintiff, argued that the removal was not a procedural step of
the kind that would bar a plaintiff to subsequently
apply for
summary judgment.
[16] In
ESSO
SOUTH AFRICA v VIRGINIA OILS & CHEMICALS
CO.
1972
(2) SA 81
(O) at 83 A – B it was accepted by Klopper J that once
appearance to defend has been entered and a plaintiff thereafter
takes a
further procedural step he thereby waives his right to ask
for summary judgment. In
JACOBS
v F. T. P Finans (EDMS
)
BPK
1975 (3) SA 345
(O) at 346 B – C Klopper A. J. P , who also wrote
the judgment
ESSO
SOUTH AFRICA
supra,
said the following:
“
As in gedagte
gehou word die doel waarvoor hierdie praktyk geskep is, nl. vir
gevalle waar ‘n respondent nie ‘n geleentheid
gegun
moet word om die geding teen hom te verdedig nie en die applikant
beweer dat verskyning aangeteken is bloot as tydverkwisting,
dan is
dit ongerymd dat gemelde eiser prosesregtelike stappe neem wat op die
verdediging van sodange eis gemik is .“
I
agree.
[17] The
mere removal of a matter from the roll, however, is not
per
se a
further procedural step that leads to the conclusion that a plaintiff
has abandoned his right to ask for summary judgment. A matter
may be
removed from the roll for various reasons unrelated to the party’s
waiver or abandonment of a right. In fact in many instances
it may be
removed from the roll in the furtherance of the plaintiff’s desire
to proceed with the application for summary judgment,
e.g. if it is
removed from the unopposed roll and put on the opposed roll or where
there is a technical defect in the application
which needs to be
purged. Where the application for summary judgment is removed and the
plaintiff / applicant expressly states that:
“
It
is our instruction that the main action will proceed”
then
in my view, it is clear that the plaintiff acknowledges the
defendant’s right to defend the action. If a plaintiff can by
taking
a further procedural step be deemed to have waived his right
to summary judgment there is in my view no reason why the same
should
not hold true where he expressly and unambiguously informs the
defendant that the main action will proceed. The defendant in this
matter acted on that undertaking and filed his plea, irrespective of
the second notice of set down of the summary judgment application.
The defendant regarded it as an irregular step and ignored it. This
point
in
limine
taken
by the defendant ought to succeed.
[18] The
defendant contended that the application for summary judgment is
abortive because the plaintiff’s taxed bill of costs,
which
according to him is a liquid document, was not attached. This
contention is misplaced. A taxed bill of costs is not a liquid
document.
MARTENS
v RAND SHARE and BROKING FINANCE CORPORATION
(PTY) LTD
1939
WLD
156
at 166
WOLHUTERSKOP
BELEGGINGS
v
BLOEMFONTEIN
ENG. WORKS
1965 (2) SA 122
(O) at 123 C – H.
[19] The
other issue that I propose to deal with relates to whether the claim
has arisen. I will for the purpose of this judgment
accept that the
plaintiff, in his personal capacity, has a claim against the
defendant in his personal capacity. The defendant argued
that it was
an express, alternatively an implied, alternatively a tacit term of
the undertaking that no payment was due to the plaintiff
by the
defendant until finalisation of the claim and taxation of bill of
costs in relation to the litigation and payment of costs
by the RAF
to the defendant.
[20] Mr
Pillay argued, correctly in my view, that the defendant may not
contradict, add to, or modify the written undertaking by means
of
extrinsic evidence; see
JOHNSTON
v LEAL
1980
(3) SA 927
(A) at 943 B.
RAND
REITFONTEIN
ESTATES
LTD v COHN
1937
AD 317
at 326 . The language in the document must be given its
grammatical and ordinary meaning unless this would result in an
absurdity
or inconsistency with the rest of the document. The
technique of interpreting written
i
nstruments
was set out by
JOUBERT
JA in COOPER & LADYBRAND v BRAYANT
[1995] ZASCA 64
;
1995
(3) SA 761
(A) at 767E – 768E as follows:
“
According
to the ‘golden rule’ of interpretation the language in the
document is to be given grammatical and ordinary meaning,
unless this
would result in some absurdity or some repugnancy or inconsistency
with the result of the instrument... The mode of construction
should
never be to interpret the particular word or phrase in isolation (
in
vacuo
)
by itself…The correct approach to the application of the ‘golden
rule’ of interpretation after having ascertained the literal
meaning of the word or phrase in question is, broadly speaking to
have regard:
(1) To the context in which the word
or phrase is used its interrelation to the contract as a whole,
including the nature of the
purpose of the contract…;
(2) To the background circumstances
which explain the geneses and purpose of the contract, i.e. to
matters probably present to the
minds of the parties when they
contracted…;
(3) To
apply extrinsic evidence regarding the surrounding circumstances when
the language of the document is on the face of it ambiguous,
by
considering previous negotiations and correspondence between the
parties, subsequent conduct of the parties showing the sense
in which
they acted on the document, saved direct evidence of their own
intentions.”
260
In
applying the technique of interpretation as set out in
COOPERS
& LYBRAND
supra
I must be mindful of the fact that the four steps should not be paced
out in succession with military precision, but must be danced
with
some pirouetting, and an entrechat or two. See
CHRISTIE
RH THE LAW OF CONTRACT IN SOUTH AFRICA 5
TH
EDITION 205 -206.
[21] Mr
Pillay argued that a claim in ordinary language means substantial
relief and that cost is a separate issue with a different
cause of
action. It is dependent on the discretion of the Court. In
ALLEN
and OTHERS v DUBE
1954 (1) SA 213
(N) 215 C- D
BROOME
JP
said the following:
“
A judgment, with
costs, appears to me to be analogous to a non – judgment debt
arising out of two causes of action, rather than
to a debt arising
out of a single cause of action. After all, in ordinary par lance we
speak of “judgment debt” when we mean
to include costs. The main
judgment represents the court’s judgment upon the creditor’s pre
–existing claim, while the judgment
for costs represents the order
which the court has made in regard to the expense of enforcing that
claim. The two are obviously upon
a different footing…”
It
must however be remembered that words may be used by parties in a way
other than its ordinary meaning. The “ordinary’’ meaning
of a
word or words in a contract will depend inter alia upon the context
in which they are used, their interrelation and the nature
of the
contract as it appears from the entire undertaking. See
LTA
CONSTRUCTION LTD v MINISTER OF PUBLIC WORKS &
LAND
AFFAIRS
1992 (1) SA 837
(C) at 851 A-C;
LIST
v JUNGERS
1979 (3) SA
106
(A) at 119 A-B
.
Evidence that words were used in a special or technical sense is
admissible even when the contract, reading the words or
phrases
in their normal sense, is unambiguous on the face of it. See CHRISTIE
supra
at
208. It is also significant to note that in his letter dated 24
August the plaintiff requested an undertaking, from the defendant,
that payment of the amount due will be made upon receipt of the
costs in the
MGODUKA
v RAF
matter.
[22] It
is clear that the matter in relation to the interpretation of the
contract is something that can only be settled by means
of evidence.
The plaintiff was fully aware of the defendant’s plea when he
brought this application. Delivery of a plea is however
no bar to an
application for summary judgment.
VESTA
ESTATE AGENCY v SCHLOM
1991
(1) SA 593
(C) at 595 B – H.
It
has been said, on numerous occasions, by our Courts that summary
judgment procedure is an extraordinary procedure which effectively
closes the door to a defendant without trial.
AREND
AND ANOTHER V ASTRA FURNISHERS (PTY)LTD
1974
(1) SA 298
(C) at 304 F – G.
The
defendant must only satisfy me that he has a bona fide defence to the
action. I must merely consider whether the facts alleged
by the
defendant constitute a good defence in law and whether that defence
appears to be bona fide. See
AREND
and ANOTHER
supra
at
303. Before summary judgment can be given the Court should be
satisfied that the plaintiff’s case is unanswerable.
HIRE
PURCHASE DISCOUNT CO. v RYAN SCHOTZ
1979
(2) SA 305
(SECLD) 308 G. I need not decide at this stage whether the
defendant will on a preponderance of probabilities be successful in
the
main action.
EVELYN
HADDON & CO. LTD v LEOJANKO (PTY)LTD
1967
(1) SA 662
(O) at 667 G.
In
this matter I am not satisfied that the plaintiff’s case is
unanswerable. The defendant has a bona fide defence to the action.
The application ought to be dismissed.
[23] Mr
Quinn requested me to make a cost order as contemplate in Rule 32
(9)(a). Mr Pillay on the other hand requested me to make
an order to
the effect that cost of these proceedings be reserved for
determination by the trial court.
[24]
RULE
32 (9) (a) reads as follows:
“
The
court may at the hearing as such application make such order as to
costs as to it may seem just; provided that if the plaintiff
make an
application under this rule, where the case is not within the terms
of sub rule (1) or where the plaintiff, in the opinion
of the court,
knew that the defendant relied on a contention which would entitled
him to leave to defend, the court may order that
the action be stayed
until the plaintiff has been paid the defendant’s cost; and may
further order that such costs be taxed as
between attorney and
client…”
This
sub-rule is designed to discourage plaintiffs from bringing
unjustified applications for summary judgment. Unjustified
applications
for summary judgment put a defendant to unnecessary
expense and trouble and are a waste of the court’s time.
ABSA
BANK LTD v SJ DU TOIT & SONS EARTHMOVERS
1995 (3) SA 265
(C) at 268 I. Costs fall within the discretion of the
court and usually, as Mr Pillay argued, costs in summary judgment
applications
are reserved for determination by the trial judge.
MAHARA
J v BARCLAYS NATIONAL BANK LTD
1976
(1) SA 418
(A) at 428.
[25] The
plaintiff in this matter firstly abandoned his right to proceed with
the summary judgment application and acknowledged the
defendant’s
right to defend the action. When the plaintiff applied for summary
judgment it was fully aware of the defendant’s
defences to the
action. This should have discouraged the plaintiff from proceeding
with the application. It must be remembered that
the application is
in fact made when it is heard by the court and not when the notice is
filed.
HIRE
PURCHASE DISCOUNT CO. v RYAN SCHOLZ
supra
307 G;
JACOBS
v FPJ FINANS (EDMS) BPK
supra
346
E. The unnecessary litigation showed scant regard for the defendant’s
right. The plaintiff endeavoured to show that the defendant’s
defence should and would be dismissed, knowing fully well that it is
not my task to consider whether, on a balance of probabilities,
the
defences are likely to succeed. The defendant has been put through
unnecessary trouble and expense by the initiation of this
application. In my view this is a matter in which a costs order
should be made at this stage and not by the trial court.
[26] The plaintiff being
dominis litis did not ensure that the file is properly indexed and
paginated. Crucial documents were not
in the file when the matter was
called. The original summons, the defendant’s plea as well as the
Rule 14 notice where placed in
my file during argument. This is
totally unacceptable. The cost order should also show my displeasure.
[27]
It has been said that it is in very special circumstances that the
court ought to go the length of exercising its undoubted
powers under
Rule 32 (9) (a).
H
H ROBERTSON LTD v NL BUILDERS & CONSTRUCTION
1974
(3) SA 776
(NPD) at 777C. The cost order that I intent to make should
also not be construed as an indication that I favour the defendant’s
case on the merits.
FLAMINGO
GENERAL CENTRE v ROSSBURG FOOD MARKET
1978
(1) SA 586
(D) at 588 F
-
G.
ABSA
BANK LTD v SJ DU TOIT
supra
at
268 D – G .
[28] I
am of the view that the circumstances of this matter does not warrant
an order that the action be stayed until the plaintiff
has paid the
defendant’s costs.
[29]
I
accordingly make the following order:
(a) Summary
judgment is refused and the defendant is granted leave to defend the
action.
(b) The
plaintiff is ordered to pay the defendant’s costs of the summary
judgment proceedings on the attorney and client scale
such costs to
include the costs occasioned by the employ of two counsel.
___________
C.J.
MUSI, J
On
behalf of the Plaintiff:
Mr
Pillay S C instructed by
JUSTICE REICHLIN RAMSAMY
C/O
ANDRIES PANGENGERG INC
1
st
FLOOR, FAL BUILDING
46
BLOEMFONTEIN
On
behalf of the Defendant:
Mr
Quinn S C instructed by
NONXUBA
INCORPORATED
3
rd
& 7
th
Floors
GROTIUS BUILDING
23
ELIZABETH STREET
BLOEMFONTEIN