(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER
JUDGES: NO
(3) REVISED. ~
DATE: { ~ /402. Zt:J2{,
SIGNATURE
In the matter between:
SELOTA MAMOLA TEL0
and
ADV JOSEPH MASLESA
IN THE HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
Case No. 2023-049353
Applicant / Respondent
Respondent / Applicant
JUDGMENT : APPLICATION FOR LEAVE TO APPEAL
The judgment and order are publish ed and distributed electron ically.
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Summary;
Application fo r leave to appeal against summary judgment against attorney on claim fo r
advocates fee s. Leave to appeal sought inter-a/ia on issues not raised in plea. Leave to appeal
dismissed.
PA VAN NIEKERK, J
INTRODUCTION:
[1] Applicant applies for leave to appeal against summary judgment granted in favour of
Respondent on 28 May 2025 in the amount of R2 423 100.00 (Two Million Four Hundred
and Twenty Three Thousand and One Hundred Rands) with mora interest. This court
handed down a judgment on 3 July 2025 ("the judgment") which contains the reasons for
such order.
[2] Respondent applied for summary judgment against the Applicant after the Applicant served
a plea to the Respondent's particulars of claim on 4 September 2023, which plea was
referred to in the judgment as a proverbial textbook example of a bald and sketchy plea. 1
[3] The background to the summary judgment application is set out in the judgment supra and
can conveniently be summarised as follows:
[3.1] Respondent rendered professional services to Applicant as an advocate.
Respondent who was briefed by Applicant in various matters where Applicant
instituted claims on behalf of claimants against the Road Accident Fund.
1 Judgment : para {15).
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(3.2] Respondent rendered various invoices to the Applicant and was paid an amount of
R1 520 000.00 leaving an outstanding balance of R2 423 100.00. Subsequently,
Applicant was suspended on application by the Legal Practice Council but in the
application it was common cause that Applicant remained liable for any proven
outstanding fees owing to Respondent.
[3.3] In the Plaintiffs Particulars of claim the Respondent specifically pleaded that, on
the receipt of briefs and/or instructions from the Applicant, Respondent would
complete such instruction for and on behalf of the Applicant and would perform the
instructions at his agreed hourly rate alternatively his day fee.
[3.4] Respondent further pleaded that, after having executed an instruction, alternatively
from time to time, the Respondent would render an invoice to the Applicant in
respect of his fees and on receipt of such fees the Applicant would effect payment
of the invoices.
[3.5] The Applicant's plea admitted that the Respondent was briefed from time to time,
and would attend to the brief as instructed, and then pleaded that the Respondent
would only send an invoice to the Applicant once a matter is settled with costs
including counsel's fees, and that the invoice would be part of the party-and-party
bill during taxation. Applicant then specifically pleaded that the Respondent is only
entitled to what has been allowed by the taxing master during taxation.
[4] In the judgment this court found that the Applicant's defence was bald and sketchy, that the
Applicant failed to disclose a bona fide defence in that the Applicant did not provide
sufficient facts to enable this court to enable whether the defence raised was bona fide, and
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with reference to the applicable authorities2 and the reasons why this court held that the
defence was bald and sketchy are set out in paragraph 15 of the judgment.
(5) Against the aforesaid background, the Applicant applies for leave to appeal.
APPLICANT'S GROUNDS FOR LEA VE TO APPEAL:
(6) Applicant served a notice of application for leave to appeal dated 30 July 2025 which was
only brought to the notice of this court by the registrar of this court during the latter part of
January 2026. The Applicant's notice of application for leave to appeal consists of 29
paragraphs, each purporting to contain a separate ground for leave to appeal, as well as an
additional four reasons which purportedly advanced reasons why another court "could
reasonably come to a different decision". The application for leave to appeal has the
following features:
[6.1] Whether the Applicant applies for leave to appeal on the basis that this court
committed an error on the facts or an error on the law is not clearly specified.
(6.2) The notice contains a substantial number of basic grammatical errors, and some
of the paragraphs simply makes no sense, considering the context of the
applicable rule in terms of which summary judgment was granted, such as
paragraphs 12, 16, 23 and paragraph 26.
[6.3) On a careful scrutiny of the stated reasons which purports to be grounds for
appeal in the haphazardly formulated notice of application for leave to appeal it
1 Judgment: paras 9, 10, 11 and 12.
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appears that the Applicant attempts to rely on the following contentions that this
court erred in granting summary judgment, namely:
[6.3.1]
[6.3.2]
[6.3.3]
[6.3.4]
This court should have upheld the Applicant's contention that there
was an agreement that all invoices rendered by the Respondent would
be subject to taxation and that only such amount as allowed by the
taxing master, would have been paid to the Respondent after taxation
(paragraphs 2, 3, 4, 5, 6, 7, 8, 9, 10, 10.4 and 23 of the notice of
application for leave to appeal).
Mediation was a condition precedent to the institution of the summary
judgment application (paragraph 11 of the notice of application for
leave to appeal).
This court should have upheld the defence of prescription (which was
raised for the first time in the Applicant's opposing affidavit in the
summary judgment application) (paragraphs 13, 14, 15 and 27 of the
notice of application for leave to appeal).
This court "misdirected " itself by not considering all the evidence,
relying on allegations not part of the evidence, and by allowing a draft
order prepared by Plaintiff in that application to be made an order of
court in summary judgment applications.
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SECTION 17 OF THE SUPERIOR COURTS ACT;
[7] a perusal of the application for leave to appeal confirms that the application is brought
under section 17(1)(a)(i) of the Superior Courts Act 2013. It is now trite law that an
applicant in an application for leave to appeal faces a more stringent test under section
17(1)(a) of the Superior Courts Act compared to the Supreme Court Act 59 of 1959 and
that a mere possibility of success, an arguable case or one that is not hopeless is not
enough. There must be a sound, rational basis to conclude that there is a reasonable
prospect of success on appeal3 and the legislature's use of the word "would" in section
17(1)(a)(i) of the Superior Courts Act imposes a more stringent and vigorous threshold.4
[8] From the aforesaid authorities it follows that this court is enjoined not to grant leave to
appeal unless the Applicant can show that there is a reasonable prospect, based on a
sound rational basis, that another court will uphold the Applicant's grounds for leave to
appeal and would not have granted summary judgment.
[9] In the context of the Applicant's onus to show that there is a reasonable prospect, based on
a sound rational basis, that another court will come to a different conclusion and would
have dismissed the application for summary judgment, the grounds as advanced by the
Applicant (insofar as it can be identified) and referred to supra is dealt with individually
FIRST GROUND: The court should have found that the accounts were subject to taxation:
3 MEC/or Health, Eastern Cape v Mkhitha 2016JDR 2214 (SCA} at paras {16} and {17}.
4 City of Johannesburg Metropolitan Municipality v Spectrum {Pty} Ltd and others 2022 JDR 3708 (GJ) at
paras [6} - [7].
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[1 O] It is established law that the Applicant should have provided sufficient facts in the affidavit
resisting summary judgment to convince this court that the "taxation defence", is a bona
fide defence. It is an established practice that advocates render invoices, based on actual
work performed and prescribed rates, to their instructing attorneys, which forms part of
attorney-client costs, and is not subject to taxation. The rendering of fees by advocates is
subject to rules, based on reasonableness, reviewable in terms of the professional
standards and rules that applies to the profession, and follows on a long standing tradition
and practice between attorneys and advocates. In my view this practice is so well
established that it needs no further elaboration. Notwithstanding, the Applicant's affidavit
resisting summary judgment provides no further elaboration why this established practice
did not apply between the Applicant and the Respondent. It is inter alia for that reason that
it was held that the defence of the Applicant and the summary judgment application was
bald and sketchy. A perusal of the Applicant's affidavit resisting summary judgment
illustrate that Applicant simply repeated the contents of his Plea on this issue, with no
factual averments to support the defence.
[11] Considering the fact that this defence flies in the face of established practice, is not
supported by any extraneous facts, and raised in a sketchy manner in the opposing
affidavit, there is no rational basis to find that a reasonable prospect exists that another
court will uphold this defence.
SECOND GROUND: Mediation as a condition precedent :
[12] Mediation and/or a failure to mediate is not a bar to litigation. A failure to mediate may lead
to adverse costs orders or a judge exercising a discretion to direct the parties to mediate,
but does not set a legal bar to a claim. This issue was not pleaded in the Applicant's Plea,
was not raised in the affidavit resisting summary judgment, and has no merit.
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THIRD GROUND: Prescription plea should have been upheld:
[13] As set out in the judgment, the Applicant's plea of prescription was not raised in his plea as
is required in terms of section 17(2) of the Prescription Act, 68 of 1969 (as amended).
Applicant was enjoined by virtue of the provisions of Rule 32(3)(b) to disclose fully the
nature and grounds of the defence as pleaded and the material facts relied on which
thus means that the plea of prescription, which was not pleaded, cannot be raised for the
first time in the Applicant's answering affidavit resisting summary judgment.
FOURTH GROUND: The court misdirected itself:
[14] As a proverbial "catch all" the notice of appeal states that this court failed to consider all
evidence. There is no elaboration on this ground as raised in the notice of application for
leave to appeal. The notice further states that the court "relied on allegations not part of the
evidence " without having defined what "a/legations" was raised. Finally, the notice of
application for leave to appeal contains the startling submission that this court misdirected
itself by allowing a draft order by the Plaintiff in a summary judgment application. In my
view, it is difficult to make any sense of that "ground" for leave to appeal.
CONCLUSION:
[15] Considering the aforesaid, I am of the view that there is no reasonable prospect that
another court will come to a different conclusion having considered the pleadings, the
application for summary judgment as well as the bald and sketchy defence raised by the
Applicant in the affidavit resisting summary judgment, as result of which this court is
enjoined by virtue of the provisions of section 17(1)(a) of the Superior Courts Act, 10 of
2013 to dismiss the application.
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[16] The notice of application for leave to appeal is of such a poor standard that it offends the
expectations of a reasonable standard of professionalism and competency expected from
legal practitioners who ply their trade in the High Court. To make sense of the document,
this court is expected to troll through a document which contains numerous grammatical
errors and paragraphs which makes no rational point, in order to identify and categorise the
individual grounds of appeal relied on by Applicant. The application incudes a ground of
appeal never raised before, without any explanation therefore, contrary to the most basic
applicable principles. In my view, this document constitutes an insult to the legal profession,
especially those practitioners who, on a daily basis, produce various legal documents of a
high standard which serves to assist the court in resolving issues effectively. Those
practitioners hardly ever receive recognition for their efforts, because a high standard is
expected from them. For that reason, in my view, an atrocious document such as the
Applicant's notice of application for leave to appeal should be sanctioned by an appropriate
punitive costs order.
I therefore make the following order:
1. The application for leave to appeal is dismissed.
2. Applicant is ordered to pay the costs of the application for leave to appeal, taxed on scale
PA VAN NIEKERK
JUDGE OF THE GAUTENG DIVISION,
PRETORIA
APPEARANCES
FOR THE APPLICANT:
INSTRUCTED BY:
Adv P M Selego
RAMMUTLA-AT-LAW INC.
FOR THE RESPONDENT: Adv L Strydom
INSTRUCTED BY: De Bruyn & Markel Attorneys
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