IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION , PRETORIA
(1) REPORTABLE: #'7 NO
(2) OF INTEREST TO OTHER JUDGES: ~O
(3) REVISED.
Case No: 049420/2023
In the matter between:
RUTH MUDAU Plaintiff/Applicant
and
BRIAN RAMABOA INCORPORATED First Defendant/First Respondent
BRIAN RANGWEDl RAMABOA Second Defendant/Secon d Responde nt
JUDGMENT IN THE SUMMARY JUDGMENT APPLICATION
J.F. GROBLER, AJ
[1] Ruth Mudau, a practicing advocate, claims summary judgment against
the First Defendant, a personal liability company and firm of attorneys,
and the Second Defendant , the director of the First Defendant, in respect
of outstanding invoices for services rendered.
[2] The Plaintiff attached 90 (ninety) invoices and a statement of account
which was alleged to set out the full indebtedness of the Defendants to
the Plaintiff. The invoices and statement of account is for a total amount
of R967,760.00.
[3] The Defendants ' Plea, both before and after an amendment thereof,
does not dispute 1 the Plaintiff's allegations, inter alia, that:
[3.1] the relationship between an attorney and advocate is governed
by the Legal Practice Act, 28 of 2014, and the code of conduct
for all legal practitioners;
[3.2] the Plaintiff and the First Defendant entered into a partly written,
partly oral agreement subject to the provisions of the Legal
Practice Act and Code of Conduct;
[3.3] the Defendants are liable for the fees charged by the Plaintiff;
[3.4] the Plaintiff would perform the instructions at an agreed hourly
rate / day fee as set out in the invoice;
1 Some allegations have been admitted and some allegations have been noted. 2
[3.5] payment in respect of invoices would be made once payment is
received by the Defendants from its clients (the Road Accident
Fund);
[3.6J the Defendants shall pay timeously the reasonable charges of
the Plaintiff;
[3.7) the Defendants shall ensure either that it has sufficient funds in
its trust account to be able to pay for the services of the
advocate, alternatively the Defendants shall ensure that the
necessary funds to pay for the services of the advocate are
timeously collected from the client to ensure that payment could
be and is effected either within agreed time or a reasonable
period of time;
[3.8] the Plaintiff is not privy to the relationship and financial
interactions of the Defendants and their client (the RAF);
[3.9J the Plaintiff is never responsible to ensure that funds are
timeously obtained by the Defendants from their client; and
[3.1 OJ the Defendants remain the responsible parties who are obligated
to ensure that payments in respect of the invoices are made to
the Plaintiff.
[4] Furthermore , the Defendants admitted that the time period for payment of
the Plaintiff's invoices deviate from the standard time periods for payment
in that the Plaintiff agreed that payment in respect of the invoices would
be made once payment is received by the Defendants from their client. 3
[5] The Defendants filed a Special Plea of Prescription and alleged in the
Plea, both before and after an amendment thereof, that certain payments
were made to the Plaintiff, which were not reflected in the Plaintiff's
statement of account of outstanding invoices. The Defendants defence
is accordingly based upon material facts alleged by the Defendants
relating to prescription and payments that were made.
[6] I will consider the material facts relating to the defence of payment first
and I will consider the Special Plea of Prescription thereafter .
The plea of payment:
[7] The Defendants pleaded in paragraph 13 of the plea dated 20 June 2023
(i.e. before an amendment was effected) that the Plaintiff failed to
reconcile the outstanding invoices with payments made and was claiming
invoices that had already been paid. The Defendants alleged that its
records showed that payments in respect of 62 (sixty two) of the 90
(ninety) invoices attached to the Particulars of Claim had been made by
the Defendants . The Defendants specifically pleaded that some of the
proof of payments could not be located and attached no proof of the
alleged payments to the Plea. The Defendants at this stage accordingly
relied purely on the unsubstantiated allegation that its records showed
that payments had been made. 4
[8] The Defendants pleaded in the amended paragraph 13, which was
effected by the delivery of amended pages filed under cover of a Filing
Notice served on the Plaintiffs attorneys of record on 17 April 2024, that
payments were made to the Plaintiff by way of cheques and the
Defendants attached proof of payments by cheque to the amended Plea
as per Annexures "RM1" to "RM20" (a total of 56 (fifty six) cheques). The
Defendants did not allege in the amended Plea that further proof of
payments are outstanding and alleged no further facts upon which the
claim of the Plaintiff was disputed.
[9] The Plaintiff filed a Notice of application for summary judgment, and an
affidavit in terms of Rule 32(2) of the Uniform Rules of Court. In the
affidavit supporting the application for summary judgment dated 7 July
2023 (i.e. before the Defendant's Plea was amended), the Plaintiff stated
that the claim against the Defendants is persisted with "save for
acknowledging that payment in the amount of R146, 100.00 (ONE
HUNDRED AND FORTY SIX THOUSAND ONE HUNDRED RAND) had
been received from the Defendants". The Plaintiff claimed the reduced
amount of R821,660.00 in the Notice of application for summary
judgment. The Plaintiff furthermore in the affidavit confirmed a willingness
to concede any payment made by the Defendants upon receipt of
sufficient proof thereof. 5
[1 0] It is trite law that defendants opposing a claim for summary judgment on
affidavit on the basis of having a bona tide defence, must "fully" disclose
the nature and grounds of the defence and the material facts upon which
it is founded and they must show that they have a defence which is both
bona tide and good in law on the facts so disclosed.2
[11] In the Defendants' first affidavit opposing summary judgment dated 7
August 2023 (before the Plea was amended as referred to above), Mr
MB Mopai on behalf of the Defendants stated that the Defendants'
records showed that payments were made in respect of certain of the
invoices attached to the Plaintiffs particulars of claim and he furthermore
stated that some of the Plaintiff's invoices were submitted to the RAF for
payment, but that the Defendant still awaits payment thereof and that
payment will be made to the Plaintiff upon receipt of payment from the
RAF and according to the RAF tariff.
[12] In the Defendants' supplementary affidavit opposing summary judgment
dated 28 March 2024 (after the Plea was amended as referred to above),
Mr MB Mopai on behalf of the Defendants stated that the supplementary
affidavit is deposed to "in addition to and in rectification of' the initial
affidavit. Mr Mopai stated that the Defendants obtained proof of payment
of some of the invoices attached to the Plaintiffs particulars of claim
(Annexures "RM1" to "RM20"), which were again attached to the affidavit
as annexures.
2 Maharaj v. Barclays National Bank Ltd, 1976(1) SA 418 (A) at 426 A to F. 6
[13] The Defendants accordingly utilised the opportunity to scrutinise its
records and investigate the Plaintiff's allegations of non-payment. The
Defendant was able to obtain proof of payment of some of the invoices
and presented such to the court.
[14] I consider it significant that the Defendants, having had the time and
opportunity and the benefit of further investigation, did not state in the
supplementary affidavit that they followed up with the RAF and made
enquiries about the balance of the outstanding invoices. The deponent
of the Defendants' supplementary affidavit did not state that the
Defendants had not yet received payment of the balance of the
outstanding invoices from the RAF and he did not state that the
Defendants complied with the terms of its agreement referred to in
paragraph [3.5] to [3.1 0] above. One would have expected the
Defendants to state the abovementioned obviously material facts in the
supplementary opposing affidavit -if the Defendants, cognisant of the
requirement to satisfy the court on affidavit that it had a bona fide
defence, wished to rely on those material facts.
[15] I also consider it significant that the Defendant did not allege in either the
amended Plea, or in the supplementary opposing affidavit that the
Plaintiff agreed to accept a reduced fee in full and final settlement of the
invoices according to the RAF tariff. As stated above, one would have
expected the Defendants to plead the aforementioned material facts
specifically in the amended Plea and to confirm it unambiguously under 7
oath in the supplementary opposing affidavit -if the Defendants wished
to rely on those material facts.
[16] The Plaintiff requested at the hearing of the summary judgment
application that summary judgment be granted against the Defendants in
the amount of R277,720 .00. The aforesaid amount is the balance due to
the Plaintiff after the total of the amounts of payments made with
Annexures "RM1" to "RM20" attached to the Defendant's amended Plea
and supplementary opposing affidavit is deducted from the total amount
claimed in the particulars of claim.
[17] Ms. Strydom, on behalf of the Plaintiff, submitted that the sum total of the
cheques attached to the Defendant 's amended Plea and supplementary
affidavit (Annexure "RM1" to "RM20") was deducted from the amount
claimed in the Particulars of Claim and that the Plaintiff therefore gave
the Defendants the benefit of all the payments. Ms. Strydom submitted
that the Defendants accordingly , as far as the defence of payment is
concerned, have no bona tide defence against payment of the balance of
the Plaintiffs claim in the amount of R277,720.00.
[18] Mr. Mopai, who appeared on behalf of the Defendants at the hearing of
the summary judgment application, was constrained to concede that the
Defendants had not disclosed a defence on the papers in respect of the
balance of the claim to the amount of R277,720.00. 8
[19] I accordingly find that the Defendant failed to disclose a bona tide
defence to the balance of the Plaintiffs claim in the amount of
R277,720.00 and that the Plaintiff is, subject to the determination of the
Special Plea of Prescription below, entitled to summary judgment in that
amount.
The Special Plea of Prescription:
[20] The Defendants raised a special plea of prescription, stating that the
Plaintiff submitted invoices to the Defendants dated 2012, 2013, 2014
and 2015 and that Summons "was issued out on the 25th May 2023,
being more than three years after the date on which the Plaintiffs cause
of action arose as envisaged by the Prescription Act, 68 of 1969, Section
11(d)."
[21] The Defendants ' plea of prescription is ill-conceived. It fails to recognise
an undisputed term of the agreement between the parties. Paragraph
7 .6 of the Particulars of Claim specifically refer to the fact that payment in
respect of the invoices rendered by the Plaintiff to the Defendants would
be made "once payment is received by the Defendant from its client".
Payment of the invoices were due to the Plaintiff once the Defendants
received payment from the RAF. 9
[22] Section 12(1) of the Prescription Act provides that prescription on a debt
shall commence to run as soon as the debt is due. The debt accordingly
became due and prescription commenced only once payment was
received by the First Defendant from the RAF.
[23] The Defendants did not plead or state under oath when payment in
respect of the invoices were received by the Defendants and accordingly
failed to plead or state under oath when prescription commenced in
respect of the invoices.
[24] It is trite law that the party who raises prescription must allege and prove
the date of the inception of the period of prescription.3
[251 The Defendant's special plea of prescription accordingly does not
constitute an answer to the Plaintiffs claim.
Costs:
[26] The Plaintiff sought a punitive costs order on an attorney and client scale
against the Defendants. On the other hand, the Defendants sought a
punitive costs order on an attorney and client scale against the Plaintiff.
[27] It is concerning that the Plaintiff failed to record all the payments received
from the Defendants on the statement of account which was attached to
3 Gericke v. Sack, 1976(1) SA 821 (A).
11
the particulars of claim. This failure resulted in a reduction of the amount
claimed from R967,760.00 to R277,720.00.
[28] The Defendants, however, are not entirely innocent either. The Plaintiff
alleged in the particulars of claim that monthly statement of accounts
were delivered to the Defendants and it is obvious that the Defendants
never reconciled the statements of accounts with their own records and
never notified the Plaintiff that the statement of accounts lacked
accuracy.
[29] In light of the Plaintiff's own inaccurate bookkeeping , I am not inclined to
conclude that the Defendants ' failure to reconcile their records with the
statement of accounts of the Plaintiff justifies the making of a punitive
costs order against the Defendant.
HAVING REGARD TO ALL OF THE ABOVE, THE FOLLOWING ORDER IS
ISSUED:
1. The First and Second Defendants, jointly and severally, the one to pay
the other to be absolved, is ordered to pay the Plaintiff:
1.1. The amount of R277, 720.00;
1.2. Interest on the aforesaid sum calculated per annum a tempore
morae, calculated from date of Summons to date of final
payment; and
12
1.3. The Plaintiffs costs of suit on a party and party scale, costs of
counsel on scale B.
SIGNED AT PRETORIA ON THIS THE /ff~ DAY OF JUNE 2025.
Date of hearing:
Date of Judgment:
For the Plaintiff:
Instructed by: J,F, GROBLER AJ
ACTING JUDGE OF THE GAUTENG DIVISION, PRETORIA
25 April 2025
18 June 2025
Adv. L. Strydom
De Bruin & Morkel Attorneys
On behalf of the Defendants: Mr. Mopai
On instructions of: Ramaboa Incorporated