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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 048040/24
( 1) REPOR T ABLE : No
(2) OF INTEREST TO OTHER JUDGES : No
(3) REVISED.
SIGNATU ~ - DATE, ,2_.,, .... 1.y b
In the matter between:
GILDENHUYS MALA T JI INCORPORATED
ATTORNEYS
and
EPHRAIM LEPOMANE
MORIBE ATTORNEYS
KA TLEGO SANDFORD MORI BE
LEGAL PRACTICE COUNCIL
Applicant
First Resp ondent
Se cond Respondent
Third Respondent
Fourth Respondent
ROAD ACCIDENT FUND
IN RE:
EPHRAIM LEPOMANE
and
GILDENHUYS MALA T JI INCORPORATED
ATTORNEYS
MORISE ATTORNEYS
KA TLEGO SANDFORD MORI BE
LEGAL PRACTICE COUNCIL
ROAD ACCIDENT FUND
JUDGMENT
RAMAWELE AJ:
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Fifth Respondent
Applicant
First Respondent
Second Respondent
Third Respondent
Fourth Respondent
Fifth Respondent
[1] This is an application for leave to appeal against the judgement
delivered on 19 December 2024.
[2] For convenience, the parties will be referred to as they were cited in
the main application. The Applicant in this matter was the First
Respondent in the main application.
[3] The Applicant sought the following orders:
3.1 That the First Respondent be ordered to charge its fees in
respect of the settled RAF claim up to a third of the fees
chargeable by the Second Respondent as the Instructing
Attorneys;
3.2 That the First Respondent be ordered to charge its fees on
a scale as between party and party as a correspondent
attorney in respect of the settled matter between the
Applicant and the Fifth Respondent, under Case Number :
77103/2016;
3.3 That the First Respondent be ordered to furnish the
Applicant's Attorneys of record with all the contents of the
file in the matter, as between the Applicant and the First
Respondent, under Case Number: 77103/2016;
3.4 That at least 25% of the capital amount (i.e R170 000) be
paid into the Fourth Respondent's nominated account
pending the outcome of the matter being Case Number:
2023-127936, before this court; and
3.5 That the First Respondent be precluded from handling the
Applicant's Road Accident Fund matter, as it relates to the
Fifth Respondent, attending to taxation of the costs relating
to quantum of the ma tter.
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[4] During the hearing it became evident that the Applicant primarily
pursued reliefs [3.2] and [3.3].
Respondent's Opposition
[5] The First Respondent relied, amongst others, on:
5.1 A business proposal outlining the instructing/corresponding
attorney relationship with the Second Respondent;
5.2 A Power of Attorney allegedly signed by the Applicant; and
5.3 A Fee Agreement between the Applicant and the First
Respondent.
Grounds of Appeal:
[6] The Applicant raised two points:
6.1 That the court failed to address the validity/enforceability of
the fee agreements; and
6.2 That the court erroneously found that a concession was
made when none was.
Analysis
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[7] At the hearing, it became clear that the dispute regarding the fee
scale was no longer alive. Counsel for the First Respondent stated:
" indeed the First Respondent charged its fees on party and party
scale ..... the relief in relation to the party and party fees is moot".
[8] This unequivocal statement rendered the dispute moot. The court
made an order for certainty to prevent recurrence, especially given
pending litigation between the same parties.
[9] The Applicant argued that the court should have addressed the
validity of the fee agreements. However, no relief was sought to
declare any agreement null and void.
[10] As held in Gcaba v Minister of Safety and Security1, a court's
jurisdiction is determined by the pleadings. It is not for the court to
adjudicate claims not pleaded.
[11] Similarly, the First Respondent did not lodge a counter-application
seeking to declare the agreements valid. Thus, the court was not
required to determine that issue.
Prospects of success
[12] In Smith v S 2012 (1) SACR 567 (SCA) at para 7, the test for
reasonable prospects of success requires a realistic chance of a
1 2010 (1) SA 238 CC at para [75]
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Costs
different outcome on appeal. This application does not mee t that
threshold.
[13) Although punitive costs were considered, the court found no
exceptional circumstances to justify them. Standard costs are
appropriate. However, a party cannot declare a dispute moot and
later attempt to revive it. This constitutes an abuse of process.
Order
[14) In the premises I make the following order:
14.1 The application for leave to appeal is dismissed.
14.2 The App licant is ordered to pay costs on Scale
Appearances:
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Attorney for the Applicant: Gildenhys Malatji Inc.
Counsel for the Applicant: M Van Der Westhuizen
Attorney for the First Respondent: MN Mahapa Inc. Attorneys
Counsel for the First Respondent: Clinton Muza
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