REPORTABLE JUDMENT
IN THE HIGH COURT OF SOUTH AFRICA
WESTERN CAPE DIVISION, CAPE TOWN
CASE NO: 7650/2024
In the matter between
SONIA VAN SCHALKWYK APPLICANT
And
KENNETH JOHN BREDENKAMP RESPONDENT
Date of hearing: 11 November 2024
Date of judgment: The j udgment was handed down electronically by
circulation to the parties’ representatives by email and released to SAFLII. The
date for hand down is deemed to be 19 November 2024
JUDGMENT
VAN DEN BERG, AJ
[1] The applicant, who is cited as the defendant under the above case number,
applies for the following relief:
“1. The bar for the service and filing of the applicant’s plea be removed
and that the applicant be allowed to serve and file her plea within 5
(FIVE) days from the date of the Order;
2. The respondent shall bear the costs of this application.”
[2] The responden t, who is the plaintiff in the action , opposes the relief. The
parties will be referred to as in the action ( the applicant as the defendant and
the respondent as the plaintiff).
[3] In essence , this is an interlocutory application for condonation in terms of
Uniform Rule 27(2) and (3). However, it is not a simple matter. To the
contrary, the 398 pages of affidavits and annexures contain highly
controversial allegations and counter -allegations of mistrust, lies , and even
unprofessional conduct on the part of the plaintiff , who is an attorney and
officer of this Court, as well as an advocate at the Cape Bar.
CONTEXTUAL BACKGROUND
[4] The plaintiff is a duly admitted attorney practising as such under the name and
style of KJ Bredenkamp Attorneys. It is common cause that the plaintiff acted
as the defendant’s attorney of record in an acrimonious divorce and related
proceedings, which are still pending. Th ese proceedings included a Rule 43
application, a Rule 43(6) application, an eviction application, proceedings in
the Magistrate’s Court in terms of the Family Violence Act, and at least 2 (two)
petitions to the Supreme Court of Appeal.
[5] In the combined summons , the plaintiff claims payment of attorney’s fees of
R168,559.58 and R848,425.00 in respect to counsel’s fees.
[6] The defendant filed a notice of intention to defend on 30 April 2024 , which
was followed by the plaintiff’s service of a notice of bar on 31 May 2024.
[7] The defendant is currently represented by Nabal Attorneys , who failed to file
the plea timeously. Despite being ipso facto barred, the defendant filed a plea
and counterclaim on 10 June 2024 and immediately directed correspondence
to the plaintiff’s attorneys requesting condonation for the late service of the
plea and tendering the wasted costs.
[8] The explanation offered by the defendant for the late filing of the plea is that
her attorney inadvertently overlooked the fact that the notice of bar had
already been served on 31 May 2024 , as he only became aware of the notice
upon receiving it from his correspondent on 3 June 2024.
[9] The plaintiff opposes the application for condonation on several bas es. The
plaintiff contends that the application is not bona fide , that the defendant’s
version is untruthful, and that the defendant does not provide a sufficient
explanation for the default . Additionally, the plaintiff asserts that the
defendant’s proposed plea lacks merit and fails to meet the standard for the
upliftment of the bar , namely, disclosing sufficient grounds , including a bona
fide defence.
[10] The founding, answering, and replying affidavit s contain numerous irrelevant
allegations of impropriety and misconduct. The plaintiff and the defendant’s
erstwhile counsel, whose fees the plaintiff claims in the matter, make serious,
emotionally loaded allegations in t he affidavits before the Court. The nub of
the defendant’s case is that the plaintiff and counsel acted in contravention of
the Legal Practice Act and Code. In particular , it is alleged that the defendant
attained the services of counsel directly, without the intervention of an
attorney, and that counsel, after he allegedly accepted an instruction from the
defendant, subsequently introduced her to the plaintiff.
[11] The defendant contends that the plaintiff’s involvement in the litigation was a
mere formality, asserting that he did not actually render the services but that
counsel managed and performed all of the work , allegedly even coercing her
into taking actions which she did not want to take.
[12] The defence as formulated in the defendant’s plea is to the effect that , in as
far as a mandate agreement was concluded with counsel and the plaintiff to
act on her behalf, such mandate was solicited by counsel in contravention of
the referral rule, both at common law and as encapsulated in section
34(2)(a)(i) of the Legal Practice Act and section 27(2) of the Code.
[13] The defendant further pleads that the demands for payment made directly to
her, as we ll as the subsequent payments that she made directly to counsel
pursuant to the demands, constitute a contravention of section 27(4) of the
Code a nd Rule 7.1.9.1 of the Uniform Rules of Professional Conduct
promulgated by the General Council of the Bar of South Africa. As a result of
the alleged contraventions of the Legal Practitioners Act, the Code and rules
of ethics, the defendant contends that the mandate is against public policy,
statutorily illegal, and void from the outset.
[14] Adv Stelz ner SC , who appeared on behalf of the plaintiff, argued that the
application should be dismissed because no proper case has been made out
for the upliftment of the bar. He further argued that the defendant has not
shown a bona fide defence to the plaintiff’s action for payment of fees. In
addition hereto , it was argued that the defence falls squarely within the
condictio ob turpem vel iniustam causam rule. The argument goes that the
defendant comes to Court with unclean hands, having been dishonest about
the mandate, her knowledge of the fees to be charged , the involvement of
other legal practitioners , who have furnished the Court with confirmatory
affidavits, and her acknowledgement of her indebtedness to the plaintiff. In the
alternative, Adv Stelz ner SC argued that should this Court find that, on the
evidence in these proceedings, there is some room for argument of a bona
fide defence on the merits, the submission would then be that the defence
ought to be tested by way of parol evidence.
[15] The plaintiff submits that the defendant has perjured herself, as evidenced by
the overwhelming objective facts that are stacked against her . These include
affidavits deposed to by 3 (three) legal practitioners, which destroy the
defendant’s version, as well as an affidavit by the defendant’s own brother-in-
law. The evidence placed before the Court indicates that the defendant has,
on multiple occasions, admitted her indebtedness not only to the plaintiff and
her former counsel but also to Mr Francois du Toit, her attorney in the
proceedings before the Family Violence Court, and to her brother -in-law, Mr
Bekker.
[16] The plaintiff argues that the Court should adopt a robust approach in rejecting
the defendant’s version and find in favour of the plaintiff, based upon the trite
Plascon-Evans principle.
LEGAL REQUIREMENTS FOR UPLIFTING THE BAR
[17] Uniform Rule 27 requires the case for the upliftment of the bar to be made out
on the standard of good cause shown. The requirement of good cause has
been interpreted to have 3 (three) requirements being:
[17.1] The applicant must have a reasonable and acceptable explanation
for the default.
[17.2] The applicant must be bone fide.
[17.3] The applicant must demonstrate a bone fide defence which prima
facie has some prospect of success.
EXPLANATION OF DEFAULT
[18] I am satisfied that the defendant has offered a sufficient explanation of the
default for the late filing of the plea. As a matter of fact, the plea was filed a
mere 3 (three) days late. I do not accept the argument on behalf of the plaintiff
that the defendant’s attorney had more than 41 ( forty-one) days after the
service of the summons to obtain instructions and prepare a plea , and that,
therefore, the client should be penalised.
BONA FIDE DEFENCE
[19] The defendant is required to disclose facts in the application which , if proven
at trial, would constitute a defence. The test to determine whether the defence
has been pleaded sufficiently is similar to the test applied in summary
judgment applications in terms of Rule 32. 1 It can hardly be argued that the
defence was pleaded in a matter whi ch appears to be needlessly bold, vague
or sketchy. It would not have been sufficient for the defendant to simply state
her defence without briefly stating the facts on which she relies for the
defence. However, t he question arises whether the defendant has put up a
bona fide defence with some good prospects of success.2
[20] In Soft Coffee (Pty) Ltd v Molai Property Development ,3 Splig J held that
what constitutes a bona fide defence may be informed by the similar test
applied in summary judgment proceedings in order to determine whether
leave to defend , or in this application condonation, ought to be granted. In
essence, the plaintiff wants the Court to find, as would be the case if the
matter was argued on exception, that the plea does not disclose any defence
on any possible interpretation thereof.
[21] In relying on the well-known judgments in Maharaj v Barclays National Bank
Limited4 and Breytenbach v Fiat SA (Edms) Bpk,5 the Court in Soft Coffee
(supra) found that the defendant in that matter failed to disclose a bona fide
defence on the basis that , having regard to all the circumstances , the
defendant had, or may have, dishonestly sought to avoid the dangers inherent
in presenting a further or clearer version of the events which he claims to have
occurred.6
1 Ford v Groenewald 1977 (4) SA 224 (TPA) at 226B to G
2 Colyn v Tiger Food Industries Limited trading as Meadow Feed Mills (Cape) 2003 (6) SA
1 (SCA) at para 12 and 13
3 2015 JDR 1250 (GJ)
4 1976 (1) SA 418 (A)
5 1976 (2) SA 226 (T)
6 Soft Coffee at p 9
[22] In Ferris v FirstRand Bank Limited ,7 the Constitutional Court held that
lateness is not the only factor to be considered. The party applying for
condonation must prove whether it is in the interest s of justice to grant it,
which includes fact ors such as the applicant’s prospects of success and the
importance of the issue to be determined.
[23] The strongest argument on behalf of the plaintiff is that , on both parties’
versions, a mandate agreement was concluded at the first consultation held at
counsel’s chambers. The plaintiff was present at the first consultation, and a
mandate agreement was concluded between him and the defendant.
Whatever counsel m ay have allegedly done subsequent ly, it was argued,
cannot, per se, render the mandate void.
[24] As persuasive as this argument may be, it loses sight of the fact that the
defendant alleges that the terms of the mandate offend against public policy
as well as the LPC Act and Code 8. In addition, the defendant boldly alleges
that the mandate was not pr operly performed as could be expected of an
attorney and counsel.
[25] If the same test as in summary judgment applications is applied , the question
to be answered is whether the plaintiff has an unanswerable case. As a matter
of law, attorneys initiate the c ontract between an advocate and his client and
negotiate and receive fees from the client on behalf of the advocate and
himself. The referral rule lies at the bedrock of the advocates' profession and
exists in the interests of the public9.
[26] However, the defendant’s version under oath does not convince me, though it
may be premature to reject it altogether. It is common cause that the
defendant was referred to counsel by a mutual friend and family member.
Counsel arranged the first consultation at his c hambers with the plaintiff and
7 2014 (3) SA 39 (CC)
8 Pretoria Society of Advocates v Ndleve 2013 JDR 1295 (GNP) at [10] –[14]
9 De Freitas and Another v Society of Advocates of Natal and Another 2001 (3) SA 750 (SCA)
at [17] and [18]
defendant, who were in attendance . The oral mandate agreement was
concluded at this first consultation.
[27] These facts raise the question of w hether the mandate is against public policy
because the first consultation was, in the defendant's words , ‘solicited’ by
counsel at the behest of a mutual friend and family m ember. Or could a court
find that the mandate agreement is against public policy given its terms , as
alleged by the defendant in her plea?
[28] The Court has a wide discretion to be exercise judicially having regard to, inter
alia, the importance of ventilating disputes between parties and whether an
appropriate order for costs could cure prejudice .10 Herein lies a further
problem. The defendant says that she is an unemployed ‘stay -at-home’
mother. The defendant does not dispute that she does not have the means to
pay any costs order granted against her. Therefore, the plaintiff’s prejudice
cannot be countered by an order for costs.
[29] In light of the aforesaid, I am not convinced that the application is bona fide or
that there are good prospects of success. I will , however, grant the defendant
the benefit of the doubt. She seeks an indulgence for her attorney’s failure to
have filed a plea timeously. I cannot merely refer the dispute for oral
testimony, as this would inevitably lead to nothing more but a full-blown trial
without the parties having exchanged pleadings. The relief sought is not final,
but only interlocutory . The situation would have been different if , as is the
case in many of the authorities previously referred to, the Court was called
upon to decide both an application for default judgment and an application for
condonation simultaneously.
[30] I am also mindful that the parties are still in the initial stages of the
proceedings, the substantial amount involved and the importance of
ventilating the true disputes at trial. The court has a wide discr etion and the
defendant did not recklessly disregard the rules. The defendant is anxious and
10 Smith N.O. v Brummer N.O. and another Smith, N.O. v Brummer, N.O. and another
Smith, N.O. v Brummer 1954 (3) SA 352 (O) at 357 to 358
serious about proceeding to trial , even though the plaintiff and counsel, with
reason, question her motive for doing so . Opposed hereto, the plaintiff suffers
prejudice because he incurred the costs of opposing this application. He will
also expend costs in proceeding to trial against a litigant whose financial
position seems doubtful. However, the defendant’s financial position was
known to the plaintiff and counsel, yet they willingly litigated in the fashion and
to the extent they did. In the premises, I cannot shut the proverbial court doors
in the face of the defendant, and she will proceed at her peril.
COSTS
[31] The Court appreciates the serious natu re and potential implications of the
allegations made by the defendant, particularly against her erstwhile counsel.
However, t he defendant’s erstwhile counsel filed a confirmatory affidavit in
support of the plaintiff’s answering affidavit. In this affidavit , counsel makes
statements that I believe are regrettable . Two wrongs do not make a right.
The starting point should be that advocates, as members of an honourable
profession, render fees honestly and behave ethically 11. Advocates and
attorneys are as much a part of the court where they practise as the judges
who preside over them .12 Unfortunately, the legal representatives allowed the
contents of the affidavits to become overly contentious and detract from the
matter at hand. This is an important factor in considering the appropriate scale
of costs in terms of Uniform Rule 67A(2) (c) and (d) read wi th Uniform Rule
69(7).
[32] Irrespective of which of the parties will ultimately succeed, there is no reason
why the plaintiff should be out of pocket with any of his legal expenses. The
defendant seeks an indulgence and should , therefore, be held liable for at
least payment of the party and party costs occasioned by the application for
condonation on Scale A.
11 Van Pletzen v Taxing Master o f the H igh Court (Free State Society of Advocates Amicus
Curiae) 2021 JDR 1236 (FB)
12 Herbstein and Van Winsen, The Civil Practice of the High Courts and the supreme Court of
Appeal of South Africa, Volume 1 pp40
[33] However, should the Trial Court reject the defendant’s defence or the action
be decided in favour of the plaintiff , the defendant should be penalised with
the costs of this opposed application with an attorney and client costs order on
Scale C.
[34] In the premises , I reserve the question of costs to be determined by the Trial
Court on the basis as set out herein. The following order is granted:
1) The applicant is granted condonation in terms of Uniform Rule 27 and
the notice of bar is uplifted.
2) The applicant served a plea and counterclaim while ipso facto barred
from doing so. Such plea and counterclaim are deemed to have been
filed on the date of this order, and the usual time periods per the
Uniform Rules shall apply for the further exchange of pleadings.
3) The costs are reserved.
VAN DEN BERG, AJ
For the applicant/
Defendant : Mr Nabal
Nabal Attorneys
For respondent/
Plaintiff : Adv Stelzner SC
KJ Bredenkamp Attorneys