3 In the matter between:
EDELSTEIN FARBER GROBLER
INC. Applicant / Defendant
and
WILLIAM MARTIN NEUMANN Respondent / Plaintiff
JUDGEMENT – APPLICATION FOR LEAVE TO APPEAL
This judgment was handed down electronically by circulation to the parties’
representatives via e-mail, by being uploaded to CaseLines/Court online and
by release to SAFLII. The date and time for hand-down is deemed to be 10h00
am on Friday 28 March 2025.
CURLEWIS, AJ:
[1] This is an opposed application for Leave to Appeal against the judgment that
I handed down on 5 February 2025. The Applicant seeks Leave to Appeal to a
Full Bench. The Applicant in the application for Leave to Appeal was the
Defendant in the underlying action and original judgment of the court a quo .
[2] The application for Leave to Appeal was brought within the prescribed time
period and I therefore do not need to consider a condonation application at all
and I will subsequently exclusively deal with the application on its merits.
[3] The background of the matter at hand is common cause and has been
properly dealt with in my judgment. I will not unnecessary repeat it here. Safe to
say that in essence, the Respondent in casu (Plai ntiff in the action) instituted
action against the Applicant (Defendant in the action) on 18 June 2007, seeking
4 damages for alleged professional negligence. The Respondent’s (Plaintiff’s)
claim for damages is based , inter alia , on the Applicant’s (Defendant’s) alleged
failure to obtain proper instructions, or for acting without instructions, while
representing the Respondent (Plaintiff) in a commission claim against Broll
Gauteng (Pty) Ltd and/or Broll Property Management (Pty) Ltd (hereinafter
collectively merely referred to as “Broll”).
[4] The parties agreed to the separation of issues in terms of Rule 33(4) of the
Uniform Rules of Court.
[5] The relevant portions of the pleadings that were to be considered by the trial
Court were clearly circumscribed and are available on CaseLines, inter alia , 001-
9 to 001-10 at paras 5 and 6. The trial Court was as a result called upon to
determine the separated issues as recorded in the pleadings, being whether the
Respondent (Plaintiff) is entitled to commission and how this amount must be
calculated, alternatively how much commission the Respondent (Plaintiff) was
entitled to.
[6] On the merits, counsel who appeared for the Applicant (Defendant) ,
submitted that t he entitlement to commission depended on basically three
factors, namely whether the Respondent (Plaintiff) held a valid Fidelity Fund
Certificate at the relevant times when he carried out his duties as a property
broker or estate agent in respect of the relevant mandate; the Respondent’s
(Plaintiff’s) cause of action and finally, whether the Respondent (Plaintiff) was
the effective cause of the conclusion of the relevant lease agreement. Counsel
for the Applicant (Defendant) submitted that the Respondent (Plaintiff) failed to
5 discharge the onus of proving any one of the factors mentioned on a balance of
probabilities and was as a result not entitled to the commission or damages
claim. I rejected these arguments in my judgment in the action. This culminated
in the current application.
[7] The Applicant’s (Defendant’s) various grounds of appeal set out in its
application for Leave to Appeal are thankfully not unduly prolix, do not lack clarity
and succinctly sets out the 5 (five) grounds of appeal. In summary form, they are
essentially the following, namely:
[7.1] that the Court erred by granting an award which was not pleaded nor
canvassed in evidence. On Monday 10 March 2025, the Respondent (Plaintiff)
delivered a Notice in terms of Rule 41(2) (see CaseLines 032-1) abandoning that
part of the judgment awarding him damages in excess of what had apparently
been claimed in the action. The Applicant (Defendant) submits that the
Respondent’s (Plaintiff’s) abandonment of this part of the award of damages is
an acknowledgement that there was no basis in fact and/or in law for a
commission split as articulated by the trial Court. Even if this was a valid argument
in my mind, it became totally moot and indeed now non-existent the moment the
Respondent (Plaintiff) delivered the Notice in terms of Rule 41(2) mentioned
supra . As correctly submitted by Mr. Klopper (counsel for the
Respondent/Plaintiff) there is simply no point in attempting to cause any court to
adjudicate matters or aspects that are no more in existence or which have
absolutely no further consequence. The attempted ground of appeal has ex lege
fallen away. That then disposes of this possible ground for Leave to Appeal.
[7.2] that the trial Court erred by finding that the Respondent (Plaintiff) was the
6 effective cause of the lease agreement which was ultimately concluded between
SARS and Eskom1. The submission advanced by the Applicant (Defendant) in this
regard is that the Respondent (Plaintiff) woefully did not satisfy his onus of proof
on a balance of probabilities in the evidence before the trial Court to conclude that
he was directly and/or indirectly the effective cause in the final analysis. The
authorities cited in support of this submission in my view do not take the matter any
further and merely confirms what is trite law in civil litigation.2 I disagree with this
subm ission by Mr. Ras. In any event most of the arguments stipulated in the Notice
regarding this possible ground of appeal were dealt with in detail in the main
judgment and do not bear repetition here. Be that as it may, shorn of its verbiage
and possible repetition, the real issue is the correctness or otherwise of the findings
relating to whether the Court erred in finding that the Respondent (Plaintiff)
discharged the evidentiary burden upon him. I am not persuaded by this ground
which seems to be the gravamen of the submissions by counsel for the Applicant
(Defendant ). In the end I concluded that the one consistent or common thread
running through the various interactions of all the parties involved in this matter,
was the efforts of the Respondent (Plaintiff) that ultimately culminated in a
“successful deal” . To say that the Respondent (Plaintiff) was not the effective
cause, cannot be correct seeing that all evidence demonstrates otherwise. The
Respondent (Plaintiff) was constantly and directly involved , participated, was
instrumental and, as submitted, was “partaking” in steps that eventually lead to the
relevant lease agreement being concluded (as were other brokers of the team as
well). The Respondent’s (Plaintiff’s) roll in the “teamwork” was rightly conceded by
1 Judgment, dated 5 February 2025 at para 38.
2 Mashego Dumisani Promise v Passenger Rail Agency of South Africa [2023] ZAGPPHC 14 and the
cases cited therein. See also Maitland and Kensington Bus Co (Pty) Ltd v Jennings ZAGPPHC, Case no
61756/2018- revised 20 January 2023 .
7 the witness Ms. Elsa Human. Broll, Ms. Elsa Human and Ms. Fran Teagle
acknowledged the role played by the Respondent (Plaintiff) towards the conclusion
of the final lease agreement. It is not in dispute that they themselves proposed a
“split” of commission and subsequently paid an amount to the Respondent
(Plaintiff) in acknowledgement thereof. This is uncontested evidence. The
explanation provided in respect of the payment made by the Applicant (Defendant)
to the Respondent (Plaintiff) been a mere token out of the goodness of its heart, is
unconvincing. Up to the stage that the Respondent (Plaintiff) went to collect the
relevant documentation (RFI) from SARS, Ms. Elsa Human was not even aware of
the existence of any requirement by SARS for any leased premises. As a result of
the initial work done by the Respondent (Plaintiff) the parameters of “deal” became
wider. That is the bottom-line. Without the Respondent (Plaintiff) the ultimate deal
between Eskom and SARS would probably never have come to fruition. The
Respondent’s (Plaintiff’s) contributions as is evident from his testimony and the
undisputed supporting documentary evidence is self-explanatory.
[7.3] that the C ourt erred by finding that the Respondent (Plaintiff) had a valid
Fidelity Fund Certificate at the relevant time for him to be entitled to receive
commission. The evidence and documentary proof, however, demo nstrates that
the plaintiff was registered as agent with the Estate Agency Affairs Board (EAAB)
during 2003 (and during 2006) and therefore the Plaintiff is entitled to receive
commission arising from the relev ant lease agreement. The affidavit by Mr. Clive
Martin Ashpol (representative employee of the EAAB) dated 28 January 2010
(CaseLines 002 -74) corroborates this fact. The Registration Supervisor of the
EAAB, Ms. Lisbeth Phalane, deposed to an affidavit on 19 June 2017 (CaseLines
003-143 to 003 -145) stating that that upon inspection of the EAAB records and
8 membership roll, the Respondent (Plaintiff) was registered with the EAAB and his
name appears on the EAAB membership roll and records. Ms. Lisbeth Phalane
later also corroborated this when she testified in person. The records show that
Respondent (Plaintiff) held Fidelity Fund Certificate for the years 2002-2006 . The
dates of the issue of the respective certificates are indicated as 03/07/2002,
18/10/2003, 03/03/2003, 09/05/2005 and 12/06/200 6. Ms. Lisbeth Phalane’s
evidence regarding the records of the EAAB stands undisputed. The witness
confirmed the certificates record a date of issue and are valid until 31 December
of that calendar year. Taking cognisance of the earlier judgment by my learned
brother Boruchowitz3 directly relevant and relating to this very same matter in
casu , the invoice issued and the relevant Fidelity Fund Certificates for the
period(s) under consideration, it is clear that this ground of appeal also must fail.
This very ground that the Applicant (Defendant) attempts to rely on in this
application for Leave to Appeal was stillborn the moment money was paid over
by Broll to the Respondent (Plaintiff). An indisputable indication that the
Respondent (Plaintiff) was indeed enrolled as an agent and in possession of the
required valid Fidelity Fund Certificate issued by the EAAB is common-cause.
This was correctly argued by Mr. Klopper. Broll indeed on 13 February 2007 paid
commission to the Respondent (Plaintiff) arising from the Eskom/SARS lease
agreement. It is either the one or the other, both versions cannot stand.
[7.4] that no cause of action exists for the Respondent (Plaintiff). The Applicant
(Defendant) relied on, inter alia , McKenzie v Farmers’ Cooperative Meat
Industries Ltd4 in advancing this possible ground of appeal. The Respondent
3 Boruchowitz J, Judgment in ca se 13965/04, page 10 line 3 -4, CaseL ines 08 -293.
4 1922 AD 16.
9 (Plaintiff) sued the Applicant (Defendant) for damages by instituting action
proceedings due to alleged negligence regarding the handling of the
Respondent’s (P laintiff ’s) claim against Broll. This as a result of and following
unsuccessful litigation against the Respondent’s (Plaintiff’s ) former employer,
being action proceedings instituted against Broll by the Respondent (Plaintiff) in
the Gauteng Division, Johannesburg, under case number 13114/2007, wherein
the Applicant (Defendant ) represented the Respondent (Plaintiff) as attorney of
record. As correctly submitted by counsel for the Respondent (Plaintiff) the
relationship between an attorney and client is a contractual one. This
necessitates the attorney upholding his/her duty of exercising due skill and care
in the conduct of the client’s affairs5. An attorney must act with the highest
integrity at the level and with the skill and diligence that can be expected of a
reasonable attorney, possessed and exercised by professional attorneys. The
basis of the Respondent’s (Plaintiff’s) claim against the Applicant (Defendant) is
that the Applicant (Defendant) in case number 13114/2007 allegedly made
wrongful and negligent concession(s) on behalf of the Respondent (Plaintiff) that
were allegedly not fact ual and ultimately placed the Respondent (Plaintiff) in dire
straits. As the Respondent’s ( Plaintiff’s ) previous litigation attorney of record, the
Applicant (Defendant) gave advice to the Respondent (Plaintiff) and subsequently
drove the litigation by preparing a summons, particulars of claim and the like ,
stipulating the claim by its former client. Mr. Klopper submitted that when the
Applicant (Defendant) prepared the claim on behalf of the Respondent (Plaintiff) ,
the Applicant (Defendant ) must have known the essential legal elements which
make up each cause of action, and by implication also the material facts to be
5 Bruce NO v Berman 1963(3) SA 21 (T) .
10 pleaded and proved in each case. This, he submitted is a matter of substantive
law. I agree. I was duly and aptly referred to the citation by Hiemstra J in Makgae
v Sentraboer6: ‘[This] case ... vividly illustrates the truth of what the late Prof. Wille
used to say: “Before you can draw a pleading you’ve got to know the law ”’. The
Applicant (Defendant) must have acted with diligence and in a proper and
pro
fessional manner and without negligence, advising its client on merits,
procedure and evidence etcetera . The Applicant (Defendant) allegedly
obstinately did not do so. Wrongfulness is founded not on the conduct itself, but
on the consequences of the conduct, with consideration to reasonable
foreseeability7.The Respondent’s (Plaintiff’s ) action is therefore in the final
analysis grounded in the alleged wrongful act of the Applicant (Defendant) and
the alleged causing of damage resulting from its conduct. The Applicant
(Defendant) allegedly failed in its duty as the attorney representing the
Respondent (Plaintiff). Only time will tell if this is correct. Regarding this ground
of appeal, I am once again not in agreement with the Applicant (Defendant) and
as a result this ground also fails.
[7.5] that the Court erred in not finding that a reasonable inference is to be drawn
from the evidence, namely that there w as no agreement on the “commission
split”. Once again the arguments stipulated in the Notice regarding this possible
ground of appeal were dealt with in detail in the main judgment and do not require
repetition here. At the risk of sounding like a stuck gramophone record , this
6 1981 (4) SA 239 (T) . See also Minister of Safety and Security v Van Duivenboven 2002 (6) SA 431
(SCA) at [12] as well as Sea Harvest Corporation (Pty) Ltd v Duncan Dock Cold Storage (Pty)
Ltd 2000 (1) SA 827 (SCA) and other authorities cited in these judgments.
7 Premier, Western Cape v Faircape Property Developers (Pty) Ltd 2003 (6) SA 13 (SCA) .
11 ground of appeal also fails. It is a pointless and fruitless exercise to regurgitate
the adequate reasons already advanced in my judgment in this regard . As pointed
out in the judgment, to my mind, the evidentiary burden was discharged by the
Respondent (Plaintiff).
[8] Lastly, regarding costs, both parties agreed that this Court will be warranted
to award costs and that the appropriate scale for an order of costs, was scale C.
[9] The test and threshold for Leave to Appeal is neither novel, nor controversial
and is indeed trite. The Applicant (Defendant) correctly referenced Caratco (Pty)
Ltd v Independent Advisory Ltd8 and Nova Property Holdings Limited v Cobbett
& Others9 as authorities. I do not per se have to decide whether my own
judgment was right or wrong10.
[10] There is no basis for the arguments advanced by the Applicant (Defendant).
The authorities cited by the Applicant (Defendant) fall short of convincing me that
the required threshold for an application of this nature has been met. The
authorities in question essentially concerned the need for a court to favour an
Applicant (Defendant) when a Court is considering an application of this nature.
This Court is not convinced that another Court would reach a different result .
8 2020 (5) SA 35 (SCA). The Respondent (Plaintiff) also referred this Court to Nannen & others v
Momentum & others (6796/05 & 2275/05) [2017] ZAGPPHC 43 (14 June 2014), MEC Health,
Eastern Cape v Mkhitha (1221/15) [2016] ZASCA 176 (25 November 2016) and other cases cited in
those judgments.
9 2016 (4) SA 317 (SCA) para 8. See also the authoritatively established test for Leave to
Appeal in Ramakatsa and Others v African National Congress and Another [2021] JOL 49993
(SCA) March 2021 where the previous different views and findings in this regard were considered
and, in my view, essentially are now moot.
10 Altech Radio Holdings (Pty) Ltd v Aeonova360 Management Services (Pty) Ltd and Another
(2023/001585) [2023] ZAGPJHC 1082 (28 September 2023).
12
[11] Counsel for the Applicant (Defendant) had no answer to the argument
advanced by the Respondent (Plaintiff) that the evidence before the Court clearly
indicates that the heart of the matter was whether there was a possible claim for
damages based on professional negligence. The Applicant (Defendant) could
not refer the Court to any precedents to persuade otherwise.
13
[12] The Applicant (Defendant) seeks Leave to Appeal based on section 17(1)
(a) of the Superior Courts Act, 10 of 2013. The Applicant (Defendant) has not
met the requirements for the relief being sought. I am not persuaded that the
appeal would have a reasonable prospect of success and therefore the
application must fail. I am not persuaded that some other compelling reason
exits why the appeal should be heard (including any possible conflicting
judgments on the matter under consideration that exist ).
[13] I make the following order:
(1) The application for Leave to Appeal is dismissed with costs.
(2) The Applicant (Defendant) is ordered to pay costs, on the High Court
scale C.
____________________
L.G. Curlewis
Acting Judge of the High
Court Gauteng Division,
Pretoria
Counsel for the Applicant: Adv.R.S. Shepstone & Adv. N. Mncube
Bridge Group of Advocates, Sandown
Instructed by: Eversheds Sutherland South Africa
Inc., Johannesburg C/O Jacobson & Levy, Pretoria
Counsel for the Respondent: Adv. J.C.Klopper
14 Instructed by: Tiaan Joubert Attorneys, Pretoria.
15