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IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
1
Case Number: 032785/2023
DELETE WHICHEVER IS NOT APPLICABLE
(1) REPOR TAB LE : NO
(2) O F INTERES T TO O THER JU DGES NO
(3) REV ISE D: YES
DATE : 15 October 2025
S IGNA TURE: JANSE VAN NIEUWENHUIZE
In the matter between:
JAN JOHANNES BENJAMIN VANZYL Applicant
and
KHESI MOSES DIALE Responden t
JUDGMENT
2
JANSE VAN NIEUWENHUIZEN J:
Introduction
[1] The applicant claims summary judgment against the respondent for payment
of an amount of R 712 510, 00 with interest and costs. The application is
opposed by the respondent.
Pleadings
[2] The applicant, an advocate, performed professional services for the
respondent, an attorney , in litigation matters. The applicant alleges that the
respondent has failed and/or neglected to pay some of the invoices in respe ct
of the services rendered. In support of the aforesaid allegation, the applicant
attached 29 detailed invoices for the period 7 February 2018 to 22 May 2020.
[3] In response to the detailed invoices, the respondent pleaded that payments
were made to the plaintiff and attached proof of the following payments:
Date: Amount
29.1.2019 R 51 750, 00
13.1.2020 R 77 625,00
2.5.2019 R 51 750, 00
8.2.2019 R 22 500, 00
19.2.2019 R 69 000,00
15.5.2020 R 51 750,00
16.3.2022 R 198 375,00
4.2.2019 R 22 500,00
19.11.2018 R 43 125,00
7.12.2018 R 103 500, 00
4.3.2019 R 25 875, 00
Total R 445 125,00
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[4] The amount is less than the amount claimed, and the respondent did not plead
in respect of which invoices the payments were made.
Summary judgment
[5] In response to the plea of payment, the applicant attached a reconcili ation
history report to the affidavit in support of the claim for summary judgment. The
payments made by the respondent are reflected in the report and were credited
to various historically outstanding invoices. In the result and notwithstanding
the payments referred to by the respondent in his plea, the amount outstanding
is the amount claimed herein, R 712 510,00.
Defence and discussion
[6] The respondent raised various points in limine in his answering affidavit.
First point in limine : non-compliance with rule 32(2)(c)
[7] Rule 32(2)(c) reads as follows:
“(c) If the claim is founded on a liquid document a copy of the document shall be
annexed to such affidavit and the notice of application for summary judgment
shall state that the application will be set down for hearing on a stated day not
being less than 15 days from the date of the delivery thereof.”
[8] The respondent states that the summary judgment application did not , in
contravention of the rule, contain a hearing d ate and should on this basis be
dismissed with costs.
[9] The applicant pointed out that in terms of the Consolidated Practice Directive
of this D ivision, a date for the hearing of a summary judgment application is
only allocated after there has been compliance with a host of requirements.
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[10] The point in limine is overly technical and opportunistic. The reason why a date
for the hearing of an application should be contained in the application is
manifestly obvious; to enable a respondent to appear on the said date in court
to oppose the matter. In view of the practice in this Division and as soon as a
date is allocated by the Registrar, an applicant serves a notice of set down on
the respondent, which notice contains the date of hearing.
[11] In casu the notice of set down for the hearing of the summary judgment
application was duly served on the respondent and the respondent was
represented during the hearing of the application.
[12] In the result, there was substantial compliance with the rule, and I have no
hesitation in dismissing the point out of hand.
Second point in limine: liquid document or liquidated amount
[13] The respondent alleges that the invoices attached to the particulars of claim
were not taxed by the taxing master and are therefore not liquidated documents
or do not represent a claim for a liquidated amount as contemplated in rule
32(1). In the result, the applicant’s application stands to be dismissed as it does
not fall within the ambit of rule 32.
[14] A similar objection was raised in the matter of Tredoux v Kellerman 2020 (1)
SA 160 (C) at para [18]:
[18] …… the next question is whether each of the plaintiffs' claims, being for
professional fees, is for 'a liquidated amount in money', as required by subrule
(1). A liquidated amount of money is an amount which is either agreed upon or
which is capable of 'speedy and prompt ascertainment' or, put differently, where
ascertainment of the amount in issue is 'a mere matter of calculation'. In my
view the plaintiffs' claims in question do not fall into this category: they involve
an enquiry into the nature and extent of the professional services rendered, the
reasonableness of fees charged, and so on. These are not mere matters of
reasonableness of fees charged, and so on. These are not mere matters of
calculation; they are matters for taxation, which fall within the compass of duties
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of the taxing master. It is that official, and not the court, who must determine
the reasonableness of professional fees charged by legal practitioners.”
[15] The mere fact that a claim is for professional services rendered by an advocate
does not entail that the claim is not a liquidated amount. The test whether any
claim is a claim for a liquidated amount depends on the issues in dispute.
[16] In Tredoux the advocate and attorney claimed payment from a former client for
their fees for professional services rendered in respect of a litigious matter. The
client disputed the amount claimed for the services rendered. In view of the
issue in dispute between the parties, the court was correct in holding that an
enquiry into the nature and extent of the professional services rendered and the
reasonableness of the fees charged should first be determined by the taxing
master. The claim amo unt was thus not easily ascertainable, was not a
liquidated amount and did not fall within the ambit of rule 32.
[17] The reasonableness of the applicant’s fees is, however, not in dispute in casu.
A mere calculation of the amounts claimed in the invoices renders the claim
capable of speedy and prompt ascertainment.
[18] In the result, the second point in limine is dismissed.
Third point in limine: non-compliance with rule 32(1)
[19] The respondent contends that the reconciliation history report relied upon by
the applicant, is a new statement of account which was not the basis of the
applicant’s claim in the particulars of claim . This is in contravention of the
provisions of rule 32(1) and in the result, the summary judgment application
should be dismissed for non-compliance with the rule.
[20] The reconciliation history report is not a new statement of account . The report
reflects all the invoices that form the basis of the applicant’s claim and in view
of the respondent’s pleaded defence of payment , the report merely indicates
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the allocation of the payments made by the respondent towards other invoices
that were due and payable.
[21] Rule 32(2)(b) specifically provides that an applicant must “explain briefly why
the defence as pleaded, does not raise any issue for trial”. In attaching the
reconciliation history report the applicant did precisely that. The report explains
why the pleaded defence of payment does not raise an issue for trial.
[22] One should bear in mind that the purpose of summary judgment proceedings
is to enable an applicant with a clear case to obtain judgment without delay.
[23] It is for this reason that a respondent with a bona fide defence must set out the
defence in sufficient detail to satisfy the court that a tr iable issue exists. In the
often-cited matter of Maharaj v Barclays National Bank Ltd 1976 (1) SA 418
(A), the court explained what is required from a respondent with a bona fide
defence as follows at 426A-D:
“All that the Court enquires into is: (a) whether the defendant has 'fully' disclosed the
nature and grounds of his defence and the material facts upon which it is founded, and
(b) whether on the facts so disclosed the defendant appears to have, as to either the
whole or part of the claim, a defence which is both bona fide and good in law. If satisfied
on these matters the Court must refuse summary judgment, either wholly or in part, as
the case may be. The word 'fully', as used in the context of the Rule (and its
predecessors), has been the cause of some Judicial controver sy in the past. It
connotes, in my view, that, while the defendant need not deal exhaustively with the
facts and the evidence relied upon to substantiate them, he must at least disclose his
defence and the material facts upon which it is based with suffici ent particularity and
completeness to enable the Court to decide whether the affidavit discloses a bona fide
defence. (See generally, Herb Dyers (Pty.) Ltd. v Mohamed and Another, 1965 (1) SA
defence. (See generally, Herb Dyers (Pty.) Ltd. v Mohamed and Another, 1965 (1) SA
31 (T); Caltex Oil (SA) Ltd . v. Webb and Another , 1965 (2) SA 914 (N) ; Arend and
Another v. Astra Furnishers (Pty.) Ltd., supra E at pp. 303 - 4; Shepstone v.
Shepstone, 1974 (2) SA 462 (N)). At the same time the defendant is not expected to
formulate his opposition to the claim with the precision that would be required of a plea;
nor does the Court examine it by the standards of pleading. (See Estate Potgieter v.
Elliott, 1948 (1) SA 1084 (C) at p. 1087; Herb and Dyers case, supra at p.32”
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[24] In view of the detail contained in the invoices, one wo uld have expect a detailed
answer to the claim . The respondent's books of account naturally reflets w hen
payment in respect of each invoice w as made. Notwithstanding the aforesaid,
the respondent failed to fully engage w ith the facts contained in the particulars
of claim and, more specifically w ith the invoices attached to the particulars. In
this regard, the respondent's proclaimed bona fide defence falls short of the
test laid dow n in Maharaj, to wit: "he must at least disclose his defence and the
material facts upon which it is based with sufficient particularity and
comp leteness to enable the Court to decide whether the affidavit discloses a
bona fide defence."
[25] In the result, the respondent failed to disclose a bona fide defence and the
application for summary judgment mus t succeed.
ORDER
Summary judgment is granted against the respondent for:
1. Paymen t of the amoun t of R 712 510, 00;
2. Interest on the aforesaid amount a temporae morae;
3. Costs of suit, including counsel's fees on scale B.
N JANSE VAN NIEUWENHUIZEN
JUDGE OF THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
DATE HEARD: 08 September 2025
DATE DELIVERED: 15 Oc tober 2025
8
APPEARANCES
For the Applicant: Adv Lisa Strydom
Instructed by: Du Bruyn & Morkel Attorneys
For the Respondent: Adv Lineo Liphoto
Instructed by: Diale Attorneys