Van der Werf v Schreuders Attorneys (A455/2002) [2003] ZAWCHC 58 (30 October 2003)

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[2003] ZAWCHC 58
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Van der Werf v Schreuders Attorneys (A455/2002) [2003] ZAWCHC 58 (30 October 2003)

REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE
OF GOOD HOPE PROVINCIAL DIVISION)
CASE
No.: A455/2002
In
the matter between:
FRANCOIS
VAN DER WERF
Appellant
and
SCHREUDERS
ATTORNEYS
Respondent
JUDGMENT
DELIVERED: 30
th
OCTOBER 2003
MLONZI,AJ
Introduction
This
is an appeal against the judgment of a magistrate for the District of
Namaqualand held at Springbok in which he granted summary
judgment
against the appellant for the sum of R4717.60 with costs on 4
th
October 2001.
Mr.
A R Newton appeared for the appellant.
Mrs.
E S Grobbelaar appeared for the Respondent.
Background
to the matter
During
August 2001, respondent, a firm of attorneys caused a simple summons
to be issued against the appellant for the sum of R4717.60.
In the
summons the respondent claimed payment for the balance of the amount
of professional fees due to the respondent. The claim
allegedly
arose out of professional services rendered to the appellant at the
special instance and request of the appellant during
2000 to 2001.
Appellant
defended the matter and requested further particulars in terms of
Rule 15(1) of the Magistrate’s Court Rules. Respondent
applied for
summary judgment, which was opposed by the appellant. After hearing
argument, the magistrate granted summary judgment
with costs.
Subsequently the appellant noted an appeal on the following grounds:
‘
1.1 Om
te bevind en te aanvaar dat die eis op ʼn gelikwideerde geldsom
berus;
‘
1.2 Op die kennismane van feite uit die rekeningstaat
gelewer deur Sonnenberg Hoffman Galombik met betrekking tot dienste
gelewer
aan Francois Van Der Werf;
‘
1.3 Deur
te bevind dat appellant nie kan steun op skrywe gedateer 24 Mei 2001
ontvang van respondent spesifiek met verwysing na ons
afgehandelde
rekeningstaat.’
Issues.
During argument further
grounds of appeal have been canvassed and argued without any
application made nor an order granted to amend
the notice of appeal.
Respondent contented firstly that the appellant could not canvass and
argue further additional grounds of
appeal without having been
granted leave to do so on a proper application before Court.
The second issue raised is with
regard to condonation. Respondent argued that appellant failed to
file heads of argument and also
failed to move an application for
condonation. From the affidavit filed by appellant’s attorneys,
it appears the delay was due
to lack of financial instructions.
Respondent contends in his argument that costs occasioned by the
removal of the matter from the
roll on 30
th
June 2003
should be granted in his favour.
Applicable law.
It is trite law that
the appellant is confined to the grounds of appeal set out in the
notice of appeal. When new or additional grounds
are sought to be
relied upon, an appropriate application to amend must be filed and
leave to that effect granted by the Court upon
exercise of its
discretion. In this matter no such application has been filed.
Consequently it follows that this Court cannot decide
this matter on
the grounds raised in the heads of argument by appellant’s counsel.
This Court will confine itself to the
grounds of appeal as set out on the notice of appeal.
In this regard I deal first with the
contention that the Court
a quo
erred
in
concluding that the respondent’s claim is founded on a liquidated
document. This ground must be seen in the context of the points
raised in 1.3 in the notice of appeal, that the Court
a quo
in
concluding that the appellant could not rely on the letter dated 24
May 2001, addressed to him by the respondent.
Ex facie
the
simple summons, respondent claimed a balance of the amount of money,
which was due by the appellant for professional services
rendered by
the respondent at the request of the appellant. In the application
for summary judgment the supporting affidavit thereto
says no more
than the formalities prescribed by Rule 14(2) (a ) of the Rules of
the Magistrates’ Court. Therefore nothing verifies
the course of
action, meaning, on the face of the verifying affidavit, the
requisite verification has not occurred.
Appellant in his opposing affidavit
of the summary judgment is somehow cryptic and does not give much
detail of his defence. Nevertheless
he attaches a letter dated 24
May 2001 addressed to him by the respondent, in which he stated the
following:
“
Ons
verwys na bogemelde aangeleentheid en heg hierby aan, ons
afgehandelde rekeningstaat en tjek ten bedrae van
R7521.36 wat ons vertrou u in orde
sal vind. Ons bedank u vir instruksies hieromtrent en gaan nou voort
om hierdie lêer te sluit.”
Application of
law to facts
The reasons furnished by the
magistrate in terms of Rule 51(8) of the Magistrates’ Court Rules
do not state why he found appellant’s
founding affidavit not to
have disclosed a
bona fide
. It is neither clear nor
succinct as to what facts the magistrate relied upon to satisfy this
Court that he did in fact bring an
intelligent and judicial
consideration of whether or not there is a
bona fide
defence
disclosed by the appellant. The magistrate, however, appears to have
taken into account the statement of account which was
sent by a firm
of attorneys, Sonnenberg Hoffman and Galombik of Cape Town on
26
th
April for the amount of R5848.20. The amount appears
to have been reduced by R1000.36 thus leaving an amount of R4717.60.
This particular
statement, which the magistrate appears to have
relied on, was filed by the respondent as the reply to the
applicant’s request
filed in terms of Rule 15(1) of the
Magistrates’ Court Act.
It would appear that the magistrate
refers to this statement of account when he states in his finding
that the respondent’s claim
is founded on a liquidated claim.
Otherwise there is no other indication as to how he would have come
to that conclusion as the
simple summons issued only bore a mere bare
allegation.
Rule 14 (5) of the Magistrates’
Court Act reads:
“
No
evidence shall be adduced by plaintiff at the hearing of the
application nor shall any person giving oral evidence at such hearing
be cross-examined by the plaintiff, but such person may after
examination by the defendant be examined by the Court.”
The attachment of a
letter or other document to the application for summary judgment
amounts to evidence, which is not, permitted
by Rule 14 (5). This is
a view held by Leon and Milne JJ in Venter v Kruger
1971 (3) SA 848
(N) at 851 C.:
“
There
are a number of decisions with respect both to a similar Supreme
Court Rule and to the previous Rule of the Magistrates’ Court
which
makes it clear that in an application for summary judgment a
plaintiff should not give evidence as to the facts supporting
his
case in his affidavit.”
In this regard see inter alia,
Wright v McGuinness
1956 (3) SA 184
(C ) at 187; K
osack &
Co (Pty) Ltd. v Keller and Another
1962 (1) SA 441
(W) at 443-4;
South Africa Trade UnionAssurance Society Ltd. v Demott
Properties (Pty) Ltd. & Others
(3) SA 601 (W) at 602. It
therefore seems to me to be plain that the magistrate erred in having
regard to the letter to which I have
referred. That letter
constituted inadmissible evidence, which should have been
disregarded. Similarly he ought to have disregarded
those portions
of the plaintiff’s affidavit which do not comply with the Rule.”
In Leynac Distributors
Ltd. v Hoosain and Another
1994 (4) SA 524
D at 527G, Howard J, in an
application for summary judgment, concerning the meaning of
liquidated amount in money, approved the test
laid down by Corbett J
(as he then was) in Botha v Swanson & Co (Pty) Ltd. 1968 (2) PH
F85 (L) viz.
“
That
a claim cannot be regarded as one for “a liquidated amount in
money” unless it is based on a obligation to pay an agreed
sum of
money or is so expressed that the ascertainment of the amount is a
mere calculation.”
In First National Bank
of SA LTD v Myburg and Another
2002 (4) SA 176
, Moosa J at 183 held
that
“
A liquidated amount in money is an
amount which is either agreed upon or which is capable of speedy and
prompt ascertainment.”
See also Lester Investments (Pty)
Ltd. v Narshi 1951 (2) SA464 ( C.); Fatti’s Engineering Co (Pty)
Ltd. v Vendick Spares (Pty) Ltd.
1962(1) SA 736 (T); Commercial Bank
of Namibia Ltd. v Trans Continental Trading (Namibia)
1992 (2) SA 66
(M) at 72 – 3; First National Bank of SA Ltd. V Myburgh
2002 (4) SA
176
C at 181 E – H
Finding
In this matter if I
look at the simple summons alone, I cannot see how I can come to a
conclusion that the amount claimed is a liquidated
amount in the
absence of specific averments in this regard on the summons.
Applying the test that the claim cannot be regarded as
one for a
liquidated amount of money unless it is based on an obligation to pay
an agreed sum if money or is expressed that the ascertainment
of the
amount is a mere matter of calculation. I hold that the magistrate
was wrong to rely on the particulars supplied in terms
of Rule15 (1)
to decide the application for summary judgment. In my view, this
amounted to him allowing evidence by the plaintiff
in an application
for summary judgment, contrary to the provisions of Rule 14(5)
referred to above.
Rule 14(2)(b) specifically states
that if the claim is founded on a liquidated document, a copy of such
document shall be filed with
application for summary judgment. There
was no liquid document.
Evidently the respondent did not
intend to rely on the statement of account for purposes of this
application. Therefore the magistrate
should not have relied on the
statement of account filed entirely for a different purpose to decide
the summary judgment application.
In his opposition, the appellant
filed a letter, which is dated, 24 May 2001,dealing with
bona
fide
defence. On the basis of it, the letter thanked the
appellant for having instructed the respondent and also refunded him
a cheque
of R7521, 26. The said letter concludes that his file was
being closed.
Prima facie
one would be entitled in the
circumstances to conclude that at least at that stage the respondent
could not have refunded the appellant
any money and close his file if
the appellant remained indebted to it.
For purposes of summary judgment my
view is that a
bona fide
defence was disclosed. The
magistrate does not in his judgment give any reasons why this letter
is not a sufficient basis upon which
a
bona fide
defence
is established, neither does he reject this evidence as inadmissible
or incompatible with the claim alleged in the simple
summons. All
that the appellant was required to do was to set out facts, which, if
proved, would constitute a good defence. Such
defence need not be
looked at with the same strictness as a pleading in an action. Thus,
in my judgment, the magistrate erred in
granting summary judgment on
the face of what appellant had placed before him.
It follows, therefore, that the
appeal must be upheld. I make the following order:
The appeal
succeeds. Judgment in the court a quo is hereby set aside in place
thereof substituted by the following:
Application for
summary judgment is refused.
Defendant is
granted leave to defend the matter.”
Costs order of this appeal to
be costs in the cause. Costs occasioned by the wasted costs in
respect of the matter, which was struck
off the roll on the
29
th
November 2001, to be borne by the appellant.
MLONZI, AJ
MOOSA, J: I agree and it is so
ordered.
MOOSA,
J