REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO .: 118227/2024
In the matter between:
Kelebogile Stephhinah Mashele Applicant
and
Gildenhuys Malatji Attorneys First Respondent
Greyling Erasmus Second Respondent
Moribe Attorneys Third Respondent
Katlego Moribe Fourth Respondent
Legal Practice Council Fifth Respondent
Legal Practitioner’s Indemnity Insurance Fund Sixth Respondent
JUDGMENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: NO
Date: 25 March 2025 E van der Schyff
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Van der Schyff J
Introduction
[1] This application first came before me as an urgent application in October 2024. The
application was struck from the roll . The applicant’s attorneys were directed to file
an affidavit as to why they should not be held accountable for the costs of the
application. After considering the affidavit filed , a cost order de bonis propriis was
granted against the applicant’s attorneys of record . The applicant’s leg al
representatives were afforded the opportunity to approach me in chambers to case -
manage the application to ensure that it was heard after affording the respondents
sufficient time to file opposing papers . I subsequently provided the applicants with a
date to hear the application in the ordinary course, that is, not as an urgent
application.
[2] The applicant elected not to supplement or amend its application and served the
respective respondents only with a notice of set down. As when the matter was
heard i n the urgent court, only the first and second respondents had a legal
representative and counsel attending in court. The first and second respondents did
not file supplemented papers, but additional heads of argument were filed.
[3] The applicant seeks final relief. It is trite that parties are bound to the averments
made in the affidavits filed. A party is also generally bound to the relief sought in the
notice of motion. However, under the prayer ‘further and alternative relief’ a court is
entitled to consid er the papers filed of record to establish whether a case is made
out in the papers for any alternative relief sought.1
Relief sought
[4] The notice of motion reflects that the applicant seeks the following relief against the
first to fourth respondents:
1 Port Nolloth Municipality v Xhalisa 1991 (3) SA 98 (C) at 112D.
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i. That the court orders that the first or third respondent, whoever of the two
holds the funds of the applicant in trust, pay the applicant the funds paid by
the Road Accident Fund as compensation for a claim against the Road
Accident Fund within a period of no more than seventy -two (72) hours from
the date of the making of this order an order of court and subsequent service
to (sic) of the order on the respondents, the amount being R1 973 403.79
(One Million Nine Hundred and Seventy -Three Thousand Four Hundr ed and
Three Rands and Seventy -Nine Cents);
ii. Alternatively, the second and fourth respondents be ordered to inform the
applicant and the court in writing, what transpired after the funds from the
Road Accident Fund were paid to either of the first or the se cond respondents
within a period of not more than seventy -two (72) hours from the date of this
order being made an order of court and the subsequent service of the order
to the second and fourth respondents.’
Background
[5] The applicant , who was injured in a motor vehicle accident, instructed the third and
fourth respondents (collectively referred to as the Moribe respondents ) to institute a
claim against the Road Accident Fund (“the Fund”). The Moribe respondents , in turn,
appointed the first respondent, Gildenhuys Malatjie Incorporated (“GMI”), as its
correspondent attorneys. The claim was finalised . GMI’s banking details were
captured on the order , and an amount of R2 631 205.05 was subsequently paid over
by the Fund to GMI attorneys.
[6] I pause to note th at the applicant’s counsel spent much time elaborating why it was
unbecoming that GMI was reflected on the court papers as the applicant’s attorney
and that the Fund paid over money to GMI’s trust account. I fail to understand the
relevance or importance o f this point, particularly in the context of the relief sought
and GMI’s involvement in the matter. I understand that the applicant avers that she
canceled the mandate with Moribe attorneys. However, her current attorneys stated
in a letter dated 22 August 2024 that ‘it is unclear when the mandate given to Moribe
attorneys by our client was terminated.’ In the papers filed , it is reflected that the
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applicant wrote an email to GMI on 17 July 2024, stating that she ‘would like to
cancel her mandate with Katle go Moribe’. There is no indication that such
termination was communicated to GMI prior to this date . By this time, the amount of
R 1 977 204.94 was already paid over to Moribe attorneys. I find nothing mala fide
in GMI’s conduct as it is set out in th e affidavits before me.
[7] It is trite that a party’s primary relationship is with its instructing attorney.
Correspondent attorneys can be described as a ‘tool used by instructing attorneys.
Correspondent attorneys are physically located in the area of the court’s seat. They
act as representatives of the instructing attorneys who act on behalf of the client.
Correspondent attorneys obtain their instructions from the instructing attorney and
not from the client directly. In the result, corres pondent attorneys account to their
instructing attorneys.
[8] The applicant came to realise that her claim against the Fund was successful . She,
however , had not received any compensation. She laid a complaint against the
fourth respondent, Mr. Moribe, with the Legal Practice Council (LPC) in Kimberl ey.
Adverse f indings were subsequently made against Mr. Moribe by the LPC , but it is
unclear whether he was subsequently suspended or whether any disciplinary steps
were taken by the LPC.
[9] The ‘complaint of misconduct’ filed by the applicant with the LPC is dated 4 April
2023. It is evident that the applicant, already on 4 April 2023, knew that GMI made
a payment to Moribe attorneys in excess of R1 900 000.00. It is common cause that
the app licant’s current attorneys wrote to GMI enquiring about the money. GMI
answered the email, which was unfortunately sent to an incorrect email address.
This was already traversed in the judgment handed down on 13 November 2024.
[10] The letter was, however, at tached by GMI to the answering papers in the urgent
court application . Since the answering affidavit was filed, the applicant was apprised
of GMI’s response , the letter dated 16 September 2024 , and proof of payment of the
amount from GMI to Moribe attorney s. In the replying affidavit, also filed before the
application was heard in the urgent court, the applicant expressly stated that the
email letter did not reach her attorneys of record. She continued:
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‘… if that was so, these proceedings would never have been brought
against the first and second respondents.’
[11] Mr. Erasmus reiterated that GMI paid over an amount of R1 977 204.94 to Moribe
attorneys on 25 January 2 023. Mr. Erasmus confirmed that a further amount of R395
115.93 was received by them on 7 June 2024 for taxed costs. This amount, GMI
stated, would be paid over to the applicant’s current attorneys when GMI was
provided with written confirmation that its offic es would be indemnified from any
claims from Moribe attorneys or the applicant’s current attorneys.
[12] The applicant became aware of the additional amount of party and party fees held
in trust with GMI when the answering affidavit and its annexures were rece ived. In
reply, she stated that she is entitled to the R395 115.93 party and party costs
recovered by the fund.
Discussion
[13] The applicant is, with good cause, frustrated. She suffered injuries in a motor vehicle
accident. A substantial amount of money was paid over to her attorney of record
after her claim was settled with the Fund , and yet she has not received a single cent
to date.
[14] The applicant undoubtedly made a case for the relief sought against the third and
fourth respondents. She instructed the Mo ribe respondents to institute a claim on
her behalf against the Fund. The claim was finalised. The reward, less GMI’s costs
and disbursements, was paid over to Moribe attorneys already on 25 January 2023 .
Her claim is for a liquidated amount.
[15] Moribe attor neys are , in turn, entitled to the remuneration agreed to with the
applicant. However, since they did not file any answer to this application, and in light
thereof that they have received the reward already in January 2023 and failed to
make any payment to the applicant, it is just to the applicant that Moribe attorneys
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be ordered to pay the whole amount they received from GMI attorneys over to the
applicant’s current attorneys together with an estimate of their costs withi n 5 days of
this order being served on the third and fourth respondents. The applicant’s current
attorneys are to retain the estimated costs in trust in favour of Moribe attorneys
pending the taxation of their account. The remainder of the award m ust then be paid
over to the applicant.
[16] As for the party and party costs in the amount of R395 115.93 subsequently received
by GMI, GMI should pay this amount to the applicant’s current attorneys of record.
This issue was not dealt with in the notice of motion or the founding affidavit but only
came to the applicant’s knowledge when the answering affidavit was filed. It was
addressed in reply. It is sufficiently addressed in the papers filed for the court to grant
further relief as far as this amount is concerned. These monies are for the benefit of
the applicant. I have regard to GMI’s cautionary approach and its insistence on an
indemnification from the applicant’s erstwhile and current attorneys before payi ng
out the money. The money is, however, for the benefit of the applicant. Moribe
attorneys are provided with an opportunity to charge the agreed fees from the
applicant, and the payment of the amount of R395 115.93 will be made in terms of
a court order.
Costs
[17] The third and fourth respondents are liable for the costs of this application on
attorney and client scale. Their conduct necessitated this application. In the
circumstances, a punitive costs order is warranted.
[18] In considering a fair costs order regarding the first and second respondents’ costs, I
take into account that the amount of R395 115.93 was retained subject to an
indemnification being provided by Moribe attorneys and the applicant’s current
attorneys. GMI required written confirmation that it would be indemnified from any
claims from Moribe attorneys and the applicant’s current attorneys of record. No
explanation was provided by the applicant as to why such an indemnification was
not provided. Despite that the order stands to be granted authorising GMI to pay the
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taxed costs in the amount of R395 115.93 over to the applicant’s current attorneys
of record, the dispute could have been resolved if the required indemnification had
been provided. GMI is entitled to costs. Since the same counsel represented GMI
and the second respondent it is not necessary to differentiate between the first and
second respondents as far as costs are concerned. I am, however, not of the view
that a punitive costs order is warranted .
ORDER
In the result, the following order is granted:
1. The third and fourth respondents , jointly and severally, the one to pay the other to be
absolved, are ordered to pay over the amount of R 1 977 204 .94 to the trust account of
K.S. Ntuli Attorneys within 5 days of this order being served on them.
2. The third and fourth respondents are to provide K.S. Ntuli Attorneys with an estimate of
their fees and costs , at their risk , within 5 days of this order being served on them.
3. The third and fourth respondents are ordered to provide a taxed bill of costs to K.S. Ntuli
Attorneys as soon as such an account is available.
4. K.S. Ntuli Attorneys are directed to provide the third and fourth respondents with their
trust account details captured on a bank lett er simultaneously with this order being
served on the third and fourth respondents.
5. K.S. Ntuli Attorneys are directed to receive the amount of R 1 977 204.94 in trust to the
benefit of the applicant, and to release the said amount less the third and fourth
respondents’ estimated fees and costs to the applicant on receipt of the amount.
6. K.S. Ntuli Attorneys are to retain an amount equal to the third and fourth respondents’
estimated fees and costs in trust and to release the amount to the third and fourth
respondents only once provided with a taxed bill of costs.
6.1. In the event that the taxed bill of costs reflects a lesser amount than the estimated
costs retained, only the lesser amount is to be paid out to Moribe attorneys, the
remainder to be paid to the ap plicant .
6.2. In the event that the bill of costs reflects a higher amount than the estimated costs
and fees, the full retained amount is to be paid over to Moribe attorneys .
7. The first respondent is authorised and ordered to pay over to K.S. Ntuli Attorneys f or
the benefit of the applicant, the amount of R395 115.93.
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8. The third and fourth respondents , jointly and severally, the one to pay the other to be
absolved, are to pay the costs of this application on attorney and client scale, including
the costs paid by the applicant to the first and second respondents regarding this
application heard on 17 March 2023 as provided for in paragraph 9 of this order .
9. The applic ant is to pay the first and second respondents' costs on scale B.
10. A copy of this judgment is to be provided to the Legal Practice Council.
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E van der Schyff
Judge of t he High Court
Delivered: This judgment is handed down electronically by uploading it to the electronic file of
this matter on CaseLines.
For the applicant : Adv. M. Musetha
Instructed by: K.S. Ntuli Attorneys
For the first and second respond ents: Adv. M. van der Westhuizen
Instructed by: Gildenhuys Malatji Inc.
Date of the hearing: 17 March 2025
Date of judgment: 25 March 2025