IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, JOHANNESBURG
CASE Number : 42064 / 2017
In the matter between: -
LERATO MAITE Plaintiff
and
BORMAN DUMA ZITHA ATTORNEYS Defenda nt
JUDGMENT
SNYMAN , AJ
Introduction
[1] This judgment illustrates why it is important that the terms of the mandate (brief)
between attorneys and counsel should be confirmed by way of a proper written
brief. After all, the relationship between counsel and an attorney is at the heart
(1) REPORTABLE: YES/NO
(2) OF INTEREST TO OTHER JUDGES:
YES/ NO
(3) REVISED: YES/ NO
18 February 2025
2
of it nothing else but a service agreement in terms of which counsel provides
legal services to the attorney on specific terms. It is the lack of specificity in this
context that gave rise the current matter now before this Court to decide. In a
nutshell, the case concern s a claim by the plaintiff, which is an admitted and
practicing counsel and member of the Pretoria Bar, for unpaid invoices in
respect of legal services she had been briefed to render by the defendant (a
firm of attorneys). It is in my view a tragedy that two such parties could not
resolve this dispute amongst themselves.
[2] Fortunately, in this case, it turned out that most of the essential facts necessary
to de cide the matter were either undisputed or common cause. I say this is
fortunate, because it is not ideal to decide a matter based on credibility where
two officers of the Court are involved, who, after all, should be credible in all
respects. That being said, even officers of the Court may not be entirely
forthright where it comes to serving self-interest , and in particular, where it
comes to money. But insofar as I must decide between contradictory versions
presented by the plaintiff and the defendant, I will do so in line with the following
principles articulated in Stellenbosch Farmers' Winery Group Ltd and Another
v Martell et Cie and Others1:
‘... The technique generally employed by courts in resolving factual disputes of
this nature may conveniently be summarised as follows. To come to a
conclusion on the disputed issues a court must make findings on (a) the
credibility of the various factual witnesses; (b) their reliability; and (c) the
probabilities. As to (a), the court's finding on the credibility of a particular
witness will depend on its impression about the veracity of the witness. That in
turn will depend on a variety of subsidiary factors, not necessarily in order of
importance, such as (i) the witness' candour and demeanour in the witness -
box, (ii) his bias, latent and blatant, (iii) internal contradictions in his evidence,
(iv) external contradictions with what was pleaded or put on his be half, or with
established fact or with his own extracurial statements or actions, (v) the
probability or improbability of particular aspects of his version, (vi) the calibre
1 2003 (1) SA 11 (SCA) at para 5. See also National Employers' General Insurance Co Ltd v
Jagers 1984 (4) SA 437 (E) at 440D – G; Oosthuizen v van Heerden t/a Bush Africa Safaris 2014 (6)
SA 423 (GP) at para 31.
3
and cogency of his performance compared to that of other witnesses testifying
about the same incident or events. As to (b), a witness' reliability will depend,
apart from the factors mentioned under (a)(ii), (iv) and (v) above, on (i) the
opportunities he had to experience or observe the event in question and (ii) the
quality, integrity and independence of his recall thereof. As to (c), this
necessitates an analysis and evaluation of the probability or improbability of
each party's version on each of the di sputed issues. In the light of its
assessment of (a), (b) and (c) the court will then, as a final step, determine
whether the party burdened with the onus of proof has succeeded in
discharging it. ...’
[3] Another preliminary issue that must be dealt with is the issue of prescription. In
its plea, the defendant raised a special plea of prescription, contending that the
bulk of the plaintiff’s claims had become prescribed in terms of the Prescription
Act.2 However, and when the trial commenced , I was informed by the
defendant’s counsel that the special plea of prescription had been abandoned ,
and would no longer be pursued by the defendant. I will therefore not concern
myself with the issue of prescription in this judgment .
[4] The above being said, I now turn to deciding the plaintiff’s claim, by first setting
out the relevant background facts, as testified to by the plaintiff herself , and by
Abednego Duma (Duma), one of the directors of the defendant.
The relevant background
[5] The defendant is a firm of attorneys, conducting practice principally in the field
of personal injury, and in particular, dealing with claims concerning the Road
Accident Fund (RAF). In this context, the defendant would then brief a dvocate s
to appear on behalf of its clients in Court in respect of these matters.
[6] Turning to the plaintiff , she commenced to practice as an advocate at the
Pretoria Bar in November 2010. She explained that she was still brand new, so
to speak, when she was briefed by the defendant, and in particular, by Duma.
2 Act 6 8 of 196 9.
4
The defendant was in fact the first law firm to brief the plaintiff . This was
confirmed by Duma, who said that the plaintiff was referred to him as a new
counsel by another senior counsel, and he then commenced briefing her. It was
common cause that the defendant started out briefing the plaintiff in RAF
matters, where the defendant was acting on behalf of individual claimants
against the RAF.
[7] As part of the documentary evidence in this case, a total of 34 invoices rendered
by the plaintiff to the defendant, over the period 2011 to 2016, was discovered ,
which were the invoices forming the basis of the plaintiff’s claim . It was
undisputed that these invoices were rendered by the plaintiff to the defendant
and received by the defendant . It was also common cause that in respect of
each of these invoices, the plaintiff had been briefed by the defendant to render
the legal work concerned and that such work had indeed been rendered by the
plaintiff . A final important common cause fact is that the defendant, or in
particular Duma, had never raised a dispute with the plaintiff about such
invoices, prior to the current litigation being instituted.
[8] The issue that lies at the core of this case is then on what terms had the plaintiff
been briefed by the defendant, and in particular, what were the terms relating
to payment of invoices rendered by the plaintiff to the defendant. It is here where
the versions of the parties depart. When considering these two versions, a clear
distinction must be drawn between invoices rendered by the plaintiff to the
defendant where the plaintiff had been briefed in matters of the defendant in
respect of individual claimants against the RAF, and invoices where the plaintiff
had been briefed by the defendant in matters on behalf of the RAF itself.
[9] As stated , and initially, the briefs given to the plaintiff by the defendant focusse d
on individual claimants having claims against the RAF. These invoices were
rendered in the period 2011 to 2 014, and on the common cause facts are the
invoices discovered as items A1 to A26 of the bundle. This however exclu des
the invoice found at item A10 dated 12 February 2013, which concerned
consultation and drafting done by the plaintiff in an urgent application for an
individual client of the defendant, one Simon Golele, against the Department of
5
Health. In respect of all the other invoices, the plaintiff had been briefed to
appear in Court on behalf of individual clients of the defendant that had claims
against the RAF.
[10] Duma explained (as confirmed by the plaintiff in her own evidence) that the
defendant came onto the panel of attorneys for the RAF in and during
December 2014. From that point onwards, he was instructed by the RAF itself
to represent the RAF where it came to claims by individual claimant s against
the RAF. It followed that as a result, the defendant then commenced briefing
the plaintiff to appear in Court on behalf of the RAF where it came to matters
where the RAF had instructed the defendant to represent it in legal proceedings
brought by such claimants . On the common cause facts, these were the
invoices rendered between the period 2014 to 2016, found at items A27 to A34
of the bundle.
[11] Where it came to the individua l claimant briefs reflected by the invoices at items
A1 to A26, the plaintiff testified that the briefs relating to these invoices were all
for opposed trial matters.3 She added that when she was briefed, she was not
given any terms or conditions relating to the brief s. According to her, and as
such, she would render invoice based on what was considered to be
reasonable, considering her level of seniority and as guided by the Rules of the
Pretoria Bar Council. The extract of the relevant Rules in this regard was
discovered, and was undisputed. In a nutshell in terms of these Rules, where
an invoice by counsel is disputed by an attorney, such invoice may be submitted
to the Bar Council for taxation. If an invoice is not disputed, then that invoice
would be payable 60 days calculated fr om the first day of the month following
the month in which the invoice was ren dered. The Rules also set out what may
be considered to be a reasonable fee.
[12] The defendant however had a different take on things. It was put to the plaintiff
under cross examination that she had agreed with the defendant that she would
only be entitled to payment once the defendant had received payment of costs
3 Save of course for the invoice at item A10, which was for consultation and drafting, and had nothing
to do with the RAF.
6
from the RAF. The plaintiff accepted that this was the case. It was then further
suggested to the plaintiff under cross examination that she would only be
entitled to payment of her invoices once those invoices had been taxed. The
plaintiff was referred to the invoices at items A3, A5, A6, A7, A13, A22 , A24 and
A25 as being invoices that specifically were subject to taxation before being
payable. The plaintiff disputed this was the case , and was adamant there was
no condition imposed requiring her invoices to first be taxed, in order to be
payable .
[13] The plaintiff testified about the fees she levied on each and every invoice
appearing at items A1 to A26. She explained why on most of these invoices
there was a charge for an appearance fee in Court, followed by a reservation
day fee. She referred to the Rules of the Bar Council, which allowed for a
second day fee being levied where the trial she had been briefed for concluded,
settled or otherwise did not proceed on the first day of the trial. She also testified
to explain anomalies on some of the invoices relating to dates,4 which was not
contradicted by the defendant. She explained that all her invoices wer e only
based on actual time spent. It was also explored with her that for some of these
invoices, there were part payments, and she confirmed that whilst this was the
case, she did not know why there were only part payments, as this was never
explained to her, nor was she aware of any cause of reduction of those invoices ,
be it by way taxation or otherwise. She was clear that considering the work she
had done, all the invoices were reasonable.
[14] Ironically, and where it came to the testimony of Duma, he had nothing to say
about any of these invoices a t items A1 to A26. He did not testify that the
invoices were somehow unreasonable or otherwise in error. He never
contradicted that these invoices were indeed payable . And further, he never
said that these invoices were subject to taxation as a condition of the briefs
provided to the plaintiff . Where it came to the short payments on some of the
invoices , he actually did not offer anything in evidence as to why this was so.
4 None of these anomalies are material.
7
[15] Going to the invoices at A27 to A34, things were, in the end, fairly straight
forward and uncontentious. It was established by way of the plaintiff’s own
testimony and a specific concession made by her under cross examination, that
where it came to her being briefed by the defendant to appear in Court on behalf
of the RAF itself, this was always done in accordance with a brief template,
which formed part of the documentary evidence in the bundle. This brief
reflected the following as the brief conditions :
‘1. Counsel is requested to proceed on trial on merits and quantum.
2. By accepting this instruction, and given that we are instructed
by the RAF to brief you, we confirm that you have agreed to the
following terms:
3. That your fees will be computed strictly in accordance with
the RAF Tariff as communicated to us by the Fund from
time to time.
4. That you will be entitled to payment of your fees only when
we have received payment from the Fund. We undertake to
ensure that we submit our accounts (which would include
your invoice) to the Fund timeously.
5. That you will be entitled to such fees as allowed by the
Fund, after your account has been taxed off, if indeed taxed
off. You will accordingly not be entitled to claim from our
firm, the difference between your invoice and what has
been allowed by the Fund .
6. You are also requested to return our brief together with your
invoice within 5 (five) days after the trial date. ’5
[16] The plaintiff further testified that she was well aware of a further condition
relating to briefs where she would be representing the RAF, which was that
where it came to preparation, she would not be permitted to levy a fee for more
5 Paragraphs 3, 4 and 5 were marked in bold on the brief.
8
than five hours, no matter what the nature of the matter was. Duma elaborated
on this, by explaining that it did not mean that a fee of five hours preparation
would always be charged , but how many hours would be accepted by the RAF
would depend on the nature and complexity of the matter , but limited to five
hours .
[17] It appears that in the case of all of the invoices at items A27 to A34, there has
been payment made by the defendant to the plaintiff , however not full payment.
So, in short, there appeared to always be a short payment by the defendant of
these invoices. According to the plaintiff , she did not know why these invoices
were short paid. She stated that she was unaware of any taxation of these
invoices that reduced the amounts, and she was never informed by the
defendant why these deductions had been made. It was put to her under cross
examination that these payments came about after taxation and that she had
agreed to this, which proposition she disputed.
[18] In presenting his testimony, Duma explained that in every case where the
defendant acted for the RAF, he would render invoice to the RAF for services
rendered, and he would , as supporting documents to that invoice, also include
the invoice from counsel (in this case the plaintiff ) as well as th e invoices of any
other service provider. The RAF would then assess these invoices against what
was allowed by it in terms of the service agreement with the defendant, which
included the provisions relating to counsel ’s fees. This was why these
conditions were specifically contained in the briefs to counsel. He would then
receive what he described as a ‘ trigger document ’ from the RAF which reflected
what it would pay on the invoices submitted, and counsel would then be paid
based on such document.
[19] Duma testified that in the case of each and every one of the short payment s to
the plaintiff with regard to the invoices at items A27 to A34, this was because
the RAF has assessed the invoices of the plaintiff , and reduced the same. He
added that for every one of these invoices, the full day fees invoiced by the
plaintiff had been paid, as she invoiced those fees in terms of the agreed tariff
with the RAF , and it was only in respect of the preparation times charged by the
9
plaintiff that the RAF had an issue, and reduced the invoices. He testified that
in each case of this happening , he had in fact explained this to the plaintiff .
[20] When the plaintiff commenced being briefed by the defendant, she did her own
invoicing . She explained that there is a service provider that renders accounting
services to counsel, such as preparing and submitting invoices, doing
reconciliations , and then also collecting payment of these invoices, called
Auxcon . Initially, being new in practice, the plaintiff did not have the funds for
this service, however in 2014, she engaged the services of Auxcon , who then
reconciled her accounts. It was Auxcon that then engaged the defendant about
payment of the outstanding invoices.
[21] According to Duma, he had numerous meetings with Auxcon , where he
discussed all the plaintiff’s outstanding invoices and explained why they were
not paid, or were not payable.
[22] On 6 December 2016, Auxcon sent a letter of demand to the defendant,
demanding payment of the outstanding amount in respect of the invoices
rendered by the plaintiff , totalling R483 618.61. In this letter , it was also noted
that there was short payment on some invoices, and the defendant was asked
for particulars why this was so. It was stated that if it was alleged that those
short payment s were due to taxed bills, that such taxed bills be provided, failing
which it will be accepted that the invoices are c orrect. It was demanded that
payment be made within seven days, failing which the mat ter will be handed
over for collection.
[23] Duma answered this letter of demand by e -mail on the same date (6 December
2016). In this e -mail, he stated that the plaintiff had been promised that the
defendant was committed to paying her for the services she rendered. He
indicated that it was taking longer than expected in recovering moneys from the
RAF, and the plaintiff was urged to be patient. No mention was made of any of
the plaintiff’s invoices being taxed off, being unreasonable, or not being due
and payable. Auxcon in turn responded on 6 December 2016 to the e -mail of
Duma. In this e -mail, it was inter alia stated that the letter of demand was sent
10
out of frustration, because despite several attempts to meet with Duma, and
then confirming meeting s with him, it was found that he was not in when Auxcon
attended at his offices .
[24] In the end, and despite the intervention of Auxcon, the plaintiff’s invoices
remained unpaid. This then led to the threatened collection proceedings, and
the summons being issued against the defendant on 1 November 2017.
Analysis
[25] From the outset, I am compelled to point out that several material pieces of
testimony given by Duma when he testified, was never put to the plaintiff under
cross examination to respond to. This included that Duma had several meetings
with the plaintiff , who even came to his office, to discuss the issues relating to
her invoices. Another important aspect never put was Duma’s contention that
for all matters where the defendant acted for claimants against the RAF, this
was done on contingency , and all the service providers (including the plaintiff )
understood that if the defendant did not win the case, they would not be paid.
Duma also said that it was permissible for counsel to approach the RAF directly
to enquire about invoices. And finally, Duma had said that he had various
meetings with Auxc on where he provided them with all the information they had
sought. Duma was actually asked on several occasions under cross -
examination why this evidence was not put to the plaintiff during the course of
her cross -examination , and he answered that he had no explanation why this
happened.
[26] The implications of these kind of failures were identified in President of the
Republic of South Africa and Others v South African Rugby Football Union and
Others6 as follows:
‘The institution of cross -examination not only constitutes a right, it also imposes
certain obligations. As a general rule it is essential, when it is intended to
suggest that a witness is not speaking the truth on a particular point, to direct
6 2000 (1) SA 1 (CC) at para 61.
11
the witness's attention to the fact by questions put in cross -examination
showing that the imputation is intended to be made and to afford the witness
an opportunity, while still in the witness -box, of giving any explanation open to
the witness and of defe nding his or her character. If a point in dispute is left
unchallenged in cross -examination, the party calling the witness is entitled to
assume that the unchallenged witness's testimony is accepted as correct. This
rule was enunciated by the House of Lord s in Browne v Dunn and has been
adopted and consistently followed by our courts.
The Court added the following:7
‘The precise nature of the imputation should be made clear to the witness so
that it can be met and destroyed, particularly where the imputation relies upon
inferences to be drawn from other evidence in the proceedings. It should be
made clear not only that the evidence is to be challenged but also how it is to
be challenged. This is so because the witness must be given an opportunity to
deny the challenge, to call corroborative evidence, to qualify the evidence given
by the witness or others and to explain contradictions on which reliance is to be
placed. ’
[27] In ABS A Brokers (Pty) Ltd v Moshoana NO and Others8, the Court said:
‘It is an essential part of the administration of justice that a cross -examiner must
put as much of his case to a witness as concerns that witness (see Van Tonder
v Killian NO & ander 1992 (1) SA 67 (T) at 72I). He has not only a right to cross -
examination but, indeed, also a responsibility to cross -examine a witness if it is
intended to argue later that the evidence of the witness should be rejected. The
witness' attention must first be drawn to a particular point on the basis of which
it is intended to suggest that he is not speaking the truth and thereafter be
afforded an opportunity of providing an explanation (see Zwart & Mansell v
Snobberie (Cape) (Pty) Ltd 1984 (1) PH F19 (A)). A failure to cross -examine
may, in general, imply an acceptance of the witness's testimony. In this regard
Pretorius has the following to say in Cross -examination in SA
Law (Butterworths 1997) at 149 -50:
7 Id at para 63.
8 (2005) 26 ILJ 1652 (LAC) at para 39 .
12
'. . . [I]t is unjust and unfair not to challenge a witness's account if offered the
opportunity, then later argue - when it is no longer possible for the witness to
defend himself or offer an explanation - that his evidence should not be
accepted. ... ’
[28] Thus, and as a general proposition, ins ofar as any testimony presented by the
plaintiff is contrary to this testimony offer ed by Duma which was not put to her
under cross -examination , I will accept the evidence of the plaintiff.
[29] The above being said, the proper point of departure in deciding this matter is
determining what the plaintiff needed to prove in order to succeed with a claim
for the payment of all her outstanding invoices at items A1 to A34. First, the
plaintiff needed to prove that she was instructed (briefed) by the defendant for
each of these invoices. It was common cause that this was the case. Second,
the plaintiff needed to prove that she rendered the work for which she was
briefed, as reflected on those invoices. Once again, this was common cause
between the parties. Third, the plaintiff needed to show that such invoices were
rendered to the defendant, which was yet another common cause fact. Fourth,
the plaintiff needed to show that the full value of these invoices remained
unpaid, which was equally beyond contestation. This in reality leaves only one
issue to be decided, namely whet her all the invoices concerned were due and
payable by the defendant to the plaintiff, in full .
[30] In order to determine wheth er the invoices are due and payable, there are two
core considerations at stake. First, it must be established what the payment
terms of the instructions (brief s) by the defendant to the plaintiff were, as agreed
between them. Second, it needs to be established whet her the work done and
services rendered as reflected in the invoices were reasonable.
[31] I will first deal with the issue of the payment terms. In this context, a distinction
must be drawn between the invoices at items A1 to A26, and the invoices at
items A27 to A34. I start with the invoices at items A27 to A34, because this is
the easiest and most uncontentious to answer. The evidence revealed that the
parties were ad idem that the terms of the brief s with regard to these invoices
13
included a specific condition that the invoices concerned would be subject to
assessment by the RAF, and the plaintiff would only be paid the amount as
assessed by the RAF to be payable. As Duma explained, this is what was
meant by these invoices being subject to ‘taxation ’ as reflected in the
defendant’s plea. Using the word ‘ taxation ’ in this case is a misnomer, and a
better word would have been assessment. A proper reading of paragraph 5 in
the briefs provided to the plaintiff in respect of these invoices leaves me with
little doubt that the clause was describing a process of assessment by the RAF,
rather th an what is commonly understood as a formal taxation.
[32] Turning then to the payment terms in respect of the invoices at items A1 to A26,
this is a little more convoluted. The plaintiff’s testimony was that there was no
payment terms agreed to, and in particular, that there was no condition that
payment of her invoices was subject to any kind of taxation or assessment by
the RAF. According to her, the payment terms applicable, in the absence of any
specific condition, would be regulated by the Rules of the Pretoria Bar, and that
meant invoices were payable unless disputed by the defendant, in which event
it would be subject to assessment by the Pretoria Bar Council. The plaintiff did
however concede that in the case of matters of claimants against the RAF ,
counsel would ordinarily wait to be paid until payment was forthcoming fr om the
RAF to the instructing attorneys, such as the defendant.
[33] In its plea, the defendant did not allude to any specific conditions agreed to with
the plaintiff, with regard to the invoices at items A1 to A26 . It was only pleaded
that ‘… for each separate brief the defendant undertook to make payment for
work done or performance of the brief. Such payment would be either as agreed
between the defendant and the plaintiff when the plaintiff received the brief, or
be a reasonable fee ...’.
[34] In his testimony, Duma led no evidence to contradict anything the plaintiff has
testified to with regard to payment terms from the invoices at items A1 to A26 ,
or alluded to any other conditions that may have been agreed to in respect of
each individual brief. And despite it being put to the plaintiff under cross
examination that it was agreed that her invoices at A1 to A26 would be subject
14
to taxation , and would only be payable once taxed , Dum a did not lead any
testimony to this effect . In short, nothing that was put to the plaintiff under cross -
examination relating to the payment terms of these invoices were ever backed
up by Duma when giving his evidence. Duma did concede that until the filing of
the plea in the current litigation, there was no dispute raised with regard to any
of the invoices rendered by the plaintiff .
[35] It follows fr om the above that the payment terms relating to the invoices at items
A1 to A26 did not include a condition that these invoices were subject to taxation
in order to be payable. Those invoices would be payable, as rendered, once
payment was received from the RAF. This of course does not include the
invoice at item A10, which would be payable in the ordinary course, meaning
after the 60 calendar days under Rules of the Pretoria Bar Council. In the
absence of a specific condition that the invoices are subject to taxation , or any
dispute being raised with regard to those invoices , there is no legal requirement
that the plaintiff had to first subject her invoices to taxation in order to be entitled
to inst itute proceedings to collect payment thereof . As said in Benson and
Another v Walters and Others9: ‘... I consequently conclude that taxation is not
by law a prerequisite to the institution of legal proceedings on a bill of costs
between attorney and client ...’, which in my view would include the bill of
counsel. Overall considered, these invoices were payable when the work ha d
been completed ,10 however in this case , of course subject to the 60 day
payment terms contained in the Rules of the Pretoria Bar Council and / or when
payment is received from the RAF .
[36] The payment terms of the invoices at items A27 to A34 however did include the
condition that those invoices were subject to assessment by the RAF, and the
amount payable in terms of those invoices would be the amount allowed by the
RAF. The invoices, as assessed, would of course be payable in the ordinary
9 1984 (1) SA 73 (A) 86 C. See also XM Petse Incorporated v Nabile (Appeal) 2024 JDR 2258 (ECM) at
para 33.
10 Van Der Merwe and Associates Incorporated v Premax Trading 2 CC 2023 JDR 2492 (GP) at para
22; Verveen Incorporated v Ngoma Trading CC 2019 JDR 1765 (GP) at para 45; Praxley Corporate
Solutions (Pty) Ltd v Werksmans Incorporated 2017 JDR 0482 (GJ) at para 29; Weavind and Weavind
Incorporated v Manley NO. 2020 JDR 0523 (GP) at para 31.
15
course after the assessment , and the normal appliable time limits with regard
to actual payment after assessment would apply.
[37] The aforesaid being the payment terms relating to the invoice , this leaves only
the issue of whet her the charges levied for the services rendered / work done,
was reasonable . Whether this was indeed the case will be dealt with later in this
judgment.
[38] Applying the aforesaid, I now return to the facts of this case , and in particular,
starting with what was pleaded by the defendant as to the cause for not paying
the invoices, either in full or at all . Again, this determination requires a
distinction between the invoices at items A1 to A26, and the invoices at items
A27 to A34. Starting with the invoices at items A1 to A26, the plea offered by
the defendant is clear. This plea records, at paragraph s 20 and 21 thereof , as
follows :
‘20. The defendant's main defences are that:
20.1 some of the invoices whereon the claims are based are partly incorrect
in that work billed for was not performed and fictitious items are
included;
20.2 the fees charged pave not been agreed with the defendant and the
defendant objected thereto;
20.3 the plaintiff grossly overcharged given her seniority as an advocate
and the complexity of the matter and the reasonableness of time taken
on perusal;
20.3.1 this is stated specifically with time taken to peruse pleadings on
merits and/ or quantum; and
20.3.2 with time taken to peruse expert reports filed.
20.4 the plaintiff overcharged since:
20.4.1 certain work done was charged for separately even though such
work (if done) was performed on the same day as the day of trial
and accordingly should be included in a day fee;
20.4.2 the contents of work performed are duplicated with a concomitant
duplication of charges;
16
20.4.3 the plaintiff charged double day fees under the guise of a
reservation fee, and such fee is charged for the same day as the
day fee.
21 The above defences are generally applicable to invoices annexed as Al
to A26.’
[39] What is significant in this plea is that it is not contended that the invoices at
items A1 to A26 are subject to a condition that they must be taxed , and that
such prior taxation was essential before the invoices would become payable. It
is also important to point out that it is not pleaded that the plaintiff is not entitled
to be paid these invoices as yet, because the RAF has not paid the defendant .
Obviously, and in the case of the invoice at item A10, this in any event would
not be subject to the condition that the RAF first pays , because it is not a RAF
matter . If the defendant wishe d to pursue these two defences to thwart payment
of the invoices, it needed to specifically plead it. Instead, the entire basis for the
defendant’s plea in terms of which it is contended that these invoices are not
payable, is the contention that the charges levied by the plaintiff are not
reasonable , and nothing else .
[40] It is trite that a litigant is bound by the case as pleaded.11 The Court in
Imprefed (Pty) Ltd v National Transport Commission12 made the following clear:
‘At the outset it need hardly be stressed that:
'The whole purpose of pleadings is to bring clearly to the notice of the Court
and the parties to an action the issues upon which reliance is to be placed.'
(Durbach v Fairway Hotel Ltd 1949 (3) SA 1081 (SR) at 1082.)
This fundamental principle is similarly stressed in Odgers' Principles of
Pleading and Practice in Civil Actions in the High Court of Justice 22nd ed at
113:
11 See Naidoo v Minister of Police and Others [2015] 4 All SA 609 (SCA) at para 30; Minister of Safety
and Security v Slabbert [2010] 2 All SA 474 (SCA) at para 11 ; First National Bank of Southern Africa
Ltd v Barclays Bank PLC and Another 2003 (4) SA 337 (SCA) at para 6; Absa Bank Limited v IW
Blumberg and Wilkinson 1997 (3) SA 669 (SCA) at 681G -H; Roman Catholic Church (Klerksdorp
Diocese) v Southern Life Association Ltd 1992 (2) SA 807 (A) at 816D -F.
12 1993 (3) SA 94 (A) at 107C -H.
17
'The object of pleading is to ascertain definitely what is the question at issue
between the parties; and this object can only be attained when each party
states his case with precision.' ...’
And in Knox D’Arcy AG and another v Land and Agricultural Development Bank
of South Africa13 the Court said:
‘It is trite that litigants must plead material facts relied upon as a basis for the
relief sought and define the issues in their pleadings to enable the parties to the
action to know what case they have to meet. …’
[41] Therefore, and insofar as the defendant sought to specifically plead a case that
the invoices were not payable because they are unreasonable , and then seek
to advance a case at trial that the invoices are not payable because they are
subject to taxation in order to be payable , or that they are not payable because
the RAF has not paid, is nothing short of trial by ambush. It is simply not
permitted to plead one case in defence, and then rely on another case at trial.
The problem in this case is that considering what happened, the plaintiff would
never be altered , prior to trial, as to the case she would be required to meet, so
that she could prepare to answer it. As held in Home Talk Developments (Pty)
Ltd and Others v Ekurhuleni Metropolitan Municipality14, in referring to a case
not pleaded , but then raised in an opening address :
‘... One knows that such address can never be a substitute for pleadings. In any
event, it did not serve to forewarn the respondent of the evidence that would
eventually be relied upon. What is important is that the pleadings should make
clear the general nature of the case of the pleader. They are meant to mark out
the parameters of the case sought to be advanced and define the issues
between the litigants. In that regard, it is a basic principle that a pleading should
be so framed as to enable the other party to fairly and reasonably know the
case he or she is called upon to meet. These requirements in respect of
pleadings are the very essence of the adversarial system. The prime function
13 [2013] 3 All SA 404 (SCA) at para 35.
14 2018 (1) SA 391 (SCA) at para 28.
18
of a judge is to hear evidence in terms of the pleadings, to hear argument and
to give his decision accordingly .’
[42] But th e aforesaid is certainly not an immutable principle. In Minister of Safety
and Security v Slabbert15 the Court held:
‘The purpose of the pleadings is to define the issues for the other party and the
court. A party has a duty to allege in the pleadings the material facts upon which
it relies. It is impermissible for a plaintiff to plead a particular case and seek to
establish a different case at the trial. It is equally not permissible for the trial
court to have recourse to issues falling outside the pleadings when deciding a
case .
There are, however, circumstances in which a party may be allowed to rely on
an issue which was not covered by the pleadings. This occurs where the issue
in question has been canvassed fully by both sides at the trial. In South British
Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd, this court said :
"However, the absence of such an averment in the pleadings would not
necessarily be fatal if the point was fully canvassed in evidence. This means
fully canvassed by both sides in the sense that the Court was expected to
pronounce upon it as an issue." ’16
[43] But o verall considered , it can hardly be better said than to refer to the following
dictum in Molusi and Others v Voges NO and Others17:
‘The purpose of pleadings is to define the issues for the other party and the
court. And it is for the court to adjudicate upon the disputes an d those disputes
alone. Of course there are instances where the court may of its own accord
15 [2010] 2 All SA 474 (SCA) at paras 11 – 12. See also the minority judgment as approved of by the
majority at para 22, where it was said: ‘… A court is not bound by pleadings if a particular issue was
fully canvassed during the trial. … ’. See further Director of Hospital Services v Mistry 1979 (1) SA 626
(A) at 636C -D, where the Court held: ‘… in the absence of an averment in the pleadings or the petition,
a point may arise which is fully canvassed in the evidence, but then it must be fully canvassed by both
sides in the sense that the Court is expected to pronounce upon it as an issue. … ’.
16 The Court was referring to South British Insurance Co Ltd v Unicorn Shipping Lines (Pty) Ltd
1976 (1) SA 708 (A) at 714G -H. See also HWJ Coal (Pty) Ltd and another v NI -Da Transport (Pty) Ltd
(Appeal) 2024 JDR 1913 (GP) at para 16.
17 2016 (3) SA 370 (CC) at para 28.
19
(mero motu) raise a question of law that emerges fully from the evidence and
is necessary for the decision of the case as long as its consideration on appeal
involves no unfairness to the other party against whom it is
directed. In Slabbert the Supreme Court of Appeal held:
'A party has a duty to allege in the pleadings the material facts upon which it
relies. It is impermissible for a plaintiff to plead a particular case and seek to
establish a different case at the trial. It is equally not permissible for the trial
court to have recourse to issues falling outside the pleadings when deciding a
case.' ’
[44] In casu , it can hardly be said that the issue of the invoices being subject to
taxation and / or payment from the RAF being awaited , was fully and properly
canvassed by both parties in giving evidence . These points certainly do not
concern a particular question of law. Most importantly, Duma actually presented
no testimony on these points . He never testified that payment was not made by
the defendant where it came to the invoices at items A1 to A26 because
payment was still being awaited from the RAF. He also gave no evidence that
the plaintiff was required to first submit these invoices for taxation. Ironically, it
was specifically put to the plaintiff that the invoices at items A3, A5, A6, A7,
A13, A22, A25 and A25 were subject to taxation, thus one would have expected
Duma to come and substantiate such a specific proposition put. He never did.
Therefore, whilst it was put to the plaintiff that these two considerations applied,
which is why she was not paid, she disputed this, and surely what is put under
cross examination , especially if disputed , must be backed up in evidence to
follow.
[45] It was even suggested to the plaintiff that she had the duty to follow up with the
RAF to see if payment was received by the defendant , but again, Duma, who
in his testimony professed to be an expert where it came to dealing s with the
RAF, gave no such testimony. In any event , I find it hard to accept that such a
duty existed. There is no relationship between the plaintiff and the RAF. Her
relationship is solely that of being a service provider to the defendant . She, as
counsel, would simply not have the standing to go around her instructing
attorney, being the defendant , and deal directly with the RAF. Finally in this
20
respect, wheth er or not the RAF had paid or not would be something that resorts
under the direct knowledge of the defendant , and it would the easiest thing in
the world for it to prove it. Yet it not only did not offer such proof, but it did not
even plead this as a defence. Under the circumstances , it is an untenable
proposition to suggest that the defendant should not be held to its case as
pleaded. In Cooper and Others NNO v Syfrets Trust Ltd18 the Court had the
following to say, which in my view is apposite in casu :
‘... Counsel for the plaintiff argued that both parties fully covered all aspects
relating to the 1990 incident in evidence. I am not so sure that that is correct.
As mentioned earlier (in para 13 above) there was little cross -examination
about the events in 1990 - at least not to the extent that would doubtless have
been the case if this had consistently r emained, as it was in argument again
destined to become, the centre of gravity of the entire case. A party whose case
had unravelled before a trial court cannot stitch together a new one on appeal
if it is not properly covered by the pleadings or was not properly covered in
evidence. He cannot in fairness be allowed to advance a case different from
the one he presented on paper ...’
[46] Appreciating the above difficulties, counsel for the defendant sought to argue
that because the plaintiff waited so long to enforce payment of her invoices, it
had to be inferred that she agreed that the invoices were subject to taxation.
Such an inferred agreement is yet another case not pleaded. Furthermore , this
suggested inference is a stretch, to say the least. To contend that an agreement
to submits bills to taxation can be inferred by a mere delay in collecting debt is
in my view simply untenable, especially if there was never any dispute about
the invoices in the first place . And added to this, the plaintiff gave an
uncontradicted explanation why she took so long. She explained that she was
in essence mostly beholden to the defendant where it came to receiving briefs,
and she did not want to ‘rock the boat’ , so to speak. She indicated that she
trusted that Duma would come to do the right thing and pay her. Considering
that she was new counsel who did not have other briefing attorneys to rather
choose , this in my view makes perfect sense. The plaintiff explained that when
18 2001 (1) SA 122 (SCA) at para 21.
21
it became apparent only later, and after she had engaged Auxcon , that Duma
was not coming to the party, that he would not take care of her, and she decided
to pursue collection proceedings. This, I believe, adequately explains why it
took so long for the plaintiff to pursue collection of her invoices, and fr om this,
certainly no agreement as suggested by the defendant’s counsel can be
inferred.
[47] Therefore, and in the end, the defendant’s defence where it comes to the
payment of the invoices at items A1 to A26 must stand or fall on the issue of
reasonableness , or in other words, these invoices not being reasonable. But in
this respect, the defendant faces an insurmountable obstacle. That obstacle is
a complete lack of any evidence to substantiate this defence. The plaintiff’s
counsel took the plaintiff through the invoice s rendered. She confirmed that in
each matter, she only charged on the basis of actual time spent19, and further
the time spent on each matter was reasonable . She explained on what basis
the day fees and reservation fees were charged. It is also clear that the hourly
rate she charged, considering her level of experience, was reasonable , and
there was no evidence to indicate otherwise.
[48] So, what did Duma have to offer in response? The answer is absolutely nothing.
He presented no evidence as regards to what is contained in the invoices at
items A1 to A26, in respect of the work done and time spent. He never indicated
what could be considered to be an unreasonable charge in any of those
invoices. Despite the specific plea offered in this respect, no evidence was
presented to substantiate what is contained in such plea. In order for the
defendant to show that the invoices concerned were unreasonable, the
defendant needed to take each invoice, indicate what was unreasonable in the
invoice and why, and support this in dication with proper evidence, preferably
by another counsel in a position to comment thereon . But this did not happen.
A further important consideration is the value of the work done,20 and Duma did
19 In City of Cape Town v Arun Property Development (Pty) Ltd and Another 2009 (5) SA 227 (C) at
para 22, it was held: ‘ … The modern trend - if I may call it that - of charging a fee based on time actually
expended is both acceptable and in the interest of transparency. …’.
20 See Society of Advocates of KwaZulu -Natal v Levin 2015 (6) SA 50 (KZP) at para 20.
22
not substantiate that the value of the work was not commensurate to the
invoices rendered. It was necessary for Duma to establish all the aforesaid in
evidence, considering the plaintiff’s direct testimony, as the one who did the
work, that it was reasonable . The Court in Reef Lefebvre (Pty) Ltd v SA
Railways and Harbours21 had the following to say in this respect:
‘... The quantification of counsel's fees has always been a nettlesome
problem, particularly for those who do not have intimate knowledge of
advocates' practice and traditional working methods. Even attorneys, although
they are closely associated with counsel's work, have frequently not an
adequate understanding thereof. There are man y facets and factors involved
therein ...’
[49] For what it is worth, I in any event considered the invoices at items A1 to A26.
The invoice at item A10, which was consultation and drafting, appears to be in
line with what would be considered to be reasonable time spent on such a
matter. As to all the other invoices, and considering they all relate to opposed
trial proceedings where the plaintiff was briefed to conduct the trial, there is
nothing that stands out to me as being materially excessive where it comes to
trial preparation. Whilst some might say certain jobs as reflected in the invoices
can be done quicker, that is not the point where it comes to deciding
reasonableness thereof .22 Once again, the Court in Reef Lefebvre supra23
apposite ly dealt with this kind of consideration as follows:
‘... there is a further rather elusive element which influences the fee. This is
an amalgam of abstract thought, concern, responsibility and commitment,
which is bound up with the complexity and gravity of the brief. This element
may cause particular individuals to spend more time on a brief than is
warranted, objectively speaking, and in determining the reasonableness of a
21 1978 (4) SA 961 (W) at 963G -H.
22 In The Member of The Executive Council Responsible for the Department of Roads and Public Works,
North West Province v Oosthuizen 2009 JDR 0325 (GNP) at para 36, the Court held that: ‘ The
advocates' profession is sui generis and it may fairly be described as one of, if not the most,
individualistic of professions. No two advocates are the same. No two advocates have the same
intelligence, legal knowledge and expertise, forensic ability and personal qualities or the same
professional and social advantages. …’.
23 Id at 964B -D.
23
fee, one should strive for balance and not allow this aspect to produce odd
results ...’
[50] Finally, the day fees and reservation fees raised by the plaintiff in her invoices
were in line with the Rules of the Pretoria Bar Council, in all instances where
the plaintiff was reserved for a two-day trial.
[51] In conclusion with regard to the invoices at items A1 to A26, there is simply no
cause or reason as to why these invoices should not be paid by the defendant.
The plaintiff carried out her instruction s from the defendant, did the work
required, and rendered proper invoice for such work. These invoices were
received by the defendant, were unchallenged , and not subject to taxation . It
follows that t he invoices are due and payable , and the plaintiff is entitled to
judgement where it comes to the outstanding balance on all these invoices .24
The total amount payable by the defendant to the plaintiff for these invoices , as
outstanding, amounts to R323 095.84.
[52] This leaves the invoices at items A27 to A34. This part of the claim can be
disposed of on the basis of what was the agreed condition that these invoices
were subject to assessment by the RAF. With regard to these invoices, it must
firstly be pointed out that not one of these invoices were entirely unpaid. Each
one of them were paid, albeit short paid. A consideration of the plea offered by
the defendant does show that it was part of the defendant’s case is that this
short payment occurred as a result of taxation. I have dealt with, above, what
is meant by taxation in this context, and what was really being referred to was
assessment by the RAF. It follows that the issue to be decided is wheth er these
invoices were short paid because of RAF assessments.
[53] In her testimony, the plaintiff did not offer a suggestion as to why these invoices
were short paid. According to her, and simply put, she did not know why , and
was never told why . On the other hand, Duma testified that each of these
invoices were assessed by the RAF, and that the RAF had determined that the
24 It was common cause that the defendant did pay a sum of R215 025.00 where it came to all these
invoices , to the plaintiff .
24
fees charged by the plaintiff for preparation were excessive, considering each
of the particular cases, and then assessed these preparation fees downwards
to reflect lesser hours. Duma pointed out that the day fees charged in these
invoices were in line with the agreed RAF tariffs, not assessed downwards, and
were all paid. It therefore appears that the short payments were all as a result
of RAF assessments , and this would be in accordance with the condition
stipulated in paragraph 5 of the briefs to the pl aintiff.
[54] Counsel for the plaintiff suggested that the testimony by Duma as to the
assessments of these invoices should be rejected on the b asis that it is
hearsay , because a witness fr om the RAF needed to be called to testify as to
the veracity of the assessments made in respect of each of the invoices at items
A27 to A34. I cannot agree with this proposition. In terms of the Law of Evidence
Amendment Act (Evidence Act),25 ‘hearsay evidence ’ means ‘... evidence,
whether oral or in writing, the probative value of which depends upon the
credibility of any person other than the person giving such evidence ’.26 In this
context, Duma never testified for the purposes of justify ing the assessments
made. Or in other words, his testimony does not relate to wheth er the
assessments were accurate, reasonable or correct. He simply testified that he
received the assessments, considered what they contained, and made
payment s to the plaintiff accordingly . This is not hearsay evidence as
contemplated by the Evidence Act . The following example provided by the
Court in Makhathini v Road Accident Fund27 is apposite:
‘In Mdani v Allianz Insurance Ltd 1991 (1) SA 184 (A) at 189H - 190A this Court,
in dealing with the testimony of a policeman (A) that an insured driver (B) made
admissions to him, held, with reference to s 3 of the Act, that such evidence is
not hearsay if tendered for the purpose of determining whether such an
admission was made. Whether B in fact made the admission (in the absence
of testimony by B) depends on A's credibility and could be tested by cross -
examination. The Court held further that the content of the admission, if it is to
be used to establish the truth of what was said, constitutes hearsay ...’
25 Act 45 of 1988 .
26 See section 3(4).
27 2002 (1) SA 511 (SCA) at para 16. Also compare S v Nomazoza 2008 JDR 1440 (SCA) at para 6.
25
[55] Further, Duma is a director at the defendant who has spent more than a decade
working with the RAF, and then ultimately ended up working for it as a client .
He was the instructing attorney working on all the particular matters of the RAF
the plaintiff had been briefed to attend to. In short, he was directly responsible
for those matters, and would have personal knowledge of the instructions that
come from the RAF. In this case, truth be told, the assessments made by the
RAF, referred to by Duma as ‘trigger document s’, is nothing but an instruction
to Duma as to what the RAF is willing to pay. It simply does not matter why the
RAF decided to do so. Duma would have direct knowledge of such instruction,
and would be in a position to testify about it, without the need to have this
corroborated by someone f rom the RAF. Comparable is the following dictum in
Cornerstone Logistics (Pty) Ltd and Another v Zacpak Cape Town Depot (Pty)
Ltd28:
‘Regarding the contention that the contents of the founding affidavit constituted
inadmissible hearsay evidence because the deponent, namely Mr Petersen,
did not have personal knowledge of the facts to which he deposed, the court a
quo found that in his capacity as Zacpak's financial manager, Mr Peterson had
access to the relevant records and documentation upon which Zacpak's claim
was founded. In that capacity he had sufficient knowledge of the facts, and his
affidavit, consequently, did not constitute hear say evidence . ...’
Reference is also made to Stanfield v Commissioner, South African Revenue
Service29 where it was said :
‘Whilst I accept that Mr P J Koekemoer, who is the other deponent to the
opposing affidavit, is employed as an advocate in Pretoria and thus cannot have
personal knowledge about the applicant's account, the same cannot be said for
Ms Hendrickse. The nature of the applicant's cause of action is such that one
would have to refer to the income tax or value added tax returns submitted, the
assessments made, payments and credits passed for one to know exactly the
amount to be refunded, if any. Obviously the applicant's file would be attended
28 2022 JDR 0101 (SCA) at para 2.
29 2002 (1) SA 726 (C) at para 35. See also Maharaj v Barclays National Bank Ltd 1976 (1) SA 418 (A)
at 424A-D.
26
to by a number of people within the respondent's office. The one person who
would thus be best disposed to depose to such an affidavit would be the
supervisor, in a position similar to the one occupied by Ms Hendrickse.
Accordingly, I am of the view that the evidence is admissible. ...’
[56] It would of course been preferable for the defendant to have discovered the so-
called trigger documents referred to by Duma , but this does not, in my view,
detract from the testimony of Duma in this respect. There is in my view no
reason why this testimony of Duma cannot be accepted , especially considering
it is not contrary to anything offered by the plaintiff in her testimony . In any
event, Duma’s explanation ties in with the documentary evidence that has been
discovered . It is evidence that makes sense i n the context of the terms of
paragraph 5 of the brief s to the plaintiff . The fact that the greater part of each
invoice was in fact paid clearly suggests that the reduced parts thereof relate
to the preparation time being moderated by the RAF , as one of the specific
agreed brief terms between the plaintiff and the defendant .
[57] It is unfortunate that all the above was not explained to the plaintiff by Duma. I
know that Duma suggest ed in his evidence that he did explain this to her and
Auxcon, but for the reasons as set out above, I cannot accept this version over
that of the plaintiff that it was never explained to her. The correspondence
emanating from Auxcon also contradicts Duma’s suggestion of having had
several meetings with Auxcon where this was explained . As critical as one may
be of this conduct of Duma, it does not detract from the fact that there exists a
legitimate cause for not paying the full amount s of these invoices, and the
plaintiff thus not being entitled to the payment of the balance.
[58] I therefor e conclude that where it comes to the invoices at items A27 to A34,
the reason why these invoices were not paid in full was because the preparation
time on these invoices had been assessed downwards by the RAF. This took
place specifically within the context of the conditions of the brief s to the plaintiff,
which provided for this. As also provided for in such briefs, the plaintiff would
only be entitle d to payment of the amounts a s assessed by the RAF to be
payable. As such, the plaintiff is not entitled to payment of the balance of the
27
invoices at items A2 7 to A34, that have not been paid by the defendant , and
this part of her claim must fail. This part of the claim amounts to R43 216.00.
[59] In summary, the plaintiff is entitled to judgment in the sum of R323 095.84 ,
being the un paid parts of the invoices at items A1 to A26 she rendered to the
defendant , in respect of which she has shown that she is entitled to payment.
[60] As to the issue of interest payable, it was common cause that the plaintiff
demanded payment fr om the defendant on 6 December 2016, with payment to
be made within seven days. For mora interest to accrue, the defendant would
have to be in mora .30 As a matter of principle, and because the claim is
disputed, the defendant could only be in mora once the Court has determined
the claim.31 However, and despite this, the issue of interest in these kinds of
unliquidated claims is dealt with in the Prescribed Rate of Interest Act (Interest
Act)32. Section 2A of the Interest Act deals with interest on unliquidated debts
(claims). Section 2A(1) provides that any unliquidated debt once determined by
a Court or an arbitrator shall bear interest as determined by subsection 1.33
Next, section 2A(2)(a) provides: ‘ Subject to any other agreement between the
parties and the provisions of the National Credit Act, 2005 (Act 34 of 2005) the
interest contemplated in subsection (1) shall run from the date on which
payment of the debt is claimed by the service on the debtor of a demand or
summons, whichever is the earlier ’ (emphasis added).34 It follows that simple
interest on the amount due to the plaintiff , by the defendant , must accrue from
30 See Scoin Trading (Pty) Ltd v Bernstein NO 2011 (2) SA 118 (SCA) at para 11.
31 See Mashaba and Another v Telkom SA SOC Ltd (2020) 41 ILJ 2437 (LAC) at para 12.
32 Act 55 of 1975 (as amended).
33 Section 1(1) of the Interest Act provides: ‘ If a debt bears interest and the rate at which the interest is
to be calculated is not governed by any other law or by an agreement or a trade custom or in any other
manner, such interest shall be calculated at the rate contemplated in subsection (2)(a) as at the time
such interest begins to run, unless a court of law, on the ground of special circumstances relating to
that debt, orders otherwise’.
34 The respondent has not applied nor has it sought to make out a case for the exercise of a discretion
as contemplated by section 2A(5), for an alternative date from which interest shall run and at what rate
it should be calculated. In Adel Builders (Pty) Ltd v Thompson 2000 (4) SA 1027 (SCA) at para 15, the
Court said: ‘… The discretion afforded by section 2A(5) was of the nature referred to in a long line of
cases in this Court from Ex Parte Neethling 1951 (4) SA 331 (A) onwards. Plainly, if parties wish certain
facts and circumstances to be weighed in the exercise of such a discretion they must establish them …
. See also See King Sabata Dalindyebo Municipality v Landmark Mthatha (Pty) Ltd 2013 JDR 1389
(SCA) at para 38; Drake Flemmer & Orsmond Inc and Another v Gajjar 2018 (3) SA 353 (SCA) at para
85.
28
the expiry of the time period contained in the demand of 6 December 2016, thus
being as from 15 December 2016.
[61] This only leaves the issue of costs. The plaintiff was, overall considered,
substantially successful in her claim. She t hus should be entitled to her costs ,
and not hing has been advanced by the defendant to indicate otherwise . In my
view, a costs order on the party and party scale B would be justified in this case.
[62] In all the circumstances as set out above, the following order is ma de:
Order
1. Judgment is granted in favour of the plaintiff and against the defendant
in the amount of R323 095.84.
2. The defendant is ordered to make payment to the plaintiff of the amount
of R323 095.84 within 10(ten) days of date of this order.
3. The defendant is ordered to pay simple interest on the sum of
R323 095.84, at the rate of 10.5% per annum, calculated from 15
December 2016 to date of final payment.
4. The defendant is ordered to pay the plaintiff’s costs, on the party and
party scale B.
_____________________
SNYMAN AJ
Acting Judge of the High Court of South Africa
Gauteng Division, Johannesburg
29
Appearances :
Heard on: 10 and 11 February 2025
For the Appellant : Adv A Thompson
Instructed by: Du Bruyn & Morkel Attorneys
For the Respondent : Adv R Baloyi
Instructed by: T S Makhubela Attorneys
Date of Judgment: 18 February 2025