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Introduction
[1] This is an application to have an alleged settlement agreement made an order of
court. The settlement relates to alleged outstanding fees for legal services
rendered by the applicant , Ndou Attorneys Inc, to the respondent , the South
African Municipal Workers Union (“SAMWU”) in eleven cases issued out of this
court in 2024. Twenty -two invoices were rendered by the applicant to the
respondent, two in respect of each issued case. The applicant contends that the
settlement figure agreed for all the outstanding invoices was R2 012 390. 54.
[2] In addition to an order that the settlement agreements are made orders of court,
and that the respondent is directed to pay the total amount of R2 012 390, 54,
the applicant seeks a further order consolidating the fee disputes. In view of my
order, there is no need to deal with this issue.
[3] The respondent opposes the application on three grounds. First, it disputes the
existence of the settlement agreement. The respondent contends that the cost
consultants, whom the applicant alleges concluded the settlements on behalf of
the respondent , were not authorised to conclude the settlement agreements.
Second, that it overpaid the applicant for legal services rendered, and intends to
recover the overpayment from the applicant. Finally, it opposes the consolidation
sought on the grounds that the requirements in Rule 11 of the Uniform Rules of
Court have not been complied with.
[4] The respondent also sought the leave of this court to file a supplementary
answering affidavit to address the a verment made by the applicant in its reply
that the deponent to the answering affidavit lacks authority. In my view the
supplementary affidavit must to be admitted. The question of authority was
raised by the applicant in reply. The supplementary answering affidavit was thus
the only procedural mechanism available to the respondent to demonstrate the
the only procedural mechanism available to the respondent to demonstrate the
authority of the deponent to the answering affidavit. It is accordingly admitted
into evidence.
[5] The applicant raised a second point in limine that the respondent failed to seek
condonation for the late filing of it s answering affidavit. This point too must be
dismissed. Rule 6(5)(c)(ii) requires that an answering affidavit is filed and served
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within fifteen (15) days of the notice of intention to oppose being filed and served.
It is trite that the days referred to in the Uniform Rules are court days. The notice
to oppose was filed on 3 July 2025. The dies for the filing of the answering
affidavit expired on 24 July 2025 and the affidavit was filed on 23 July 2025. It
was thus not late and no condonation application was required.
Material Facts
[6] During 2024 the applicant issued bills of cost to the respondent for legal services
rendered in respect of 11 matters issued out of this court. Thereafter the
applicant issued a notice that it intended to tax the bills and the respondent
appointed a cost consultant, AZ Legal (Pty) Limited (“AZ Legal or the cost
consultant”). The applicant argued that the respondent appointed the cost
consultant to consider and respond to the bills.
[7] The applicant alleged that the cost consultants made offers to settle th e 22 bills
issued in respect of the 11 matters. The total outstanding indebtedness in terms
of the offers made amounted to R2 012 390.54. According to the applicant it
accepted the offers from the cost consultants on 10 April 2025, and reiterated its
acceptance on 18 June 2025. Thus, contended the applicant, the offers are
legally binding settlement agreements that this court should enforce.
[8] The respondent oppose d the application on the grounds that it does not owe
Ndou Attorneys money for work done. It argue d that it already paid Ndou
Attorneys for all the work done and was in the process of issuing summons
against Ndou Attorneys to recover an alleged overpayment between R5 000
000.00 and R12 000 000.00.
[9] However, this summons has not been issued and this court is not seized with the
alleged overpayment. Therefore, nothing more needs to be said about this
allegation other than in the absence of a summons and any relief on this score
being sought, the alleged overpayment is not a defence to the applicant’s
being sought, the alleged overpayment is not a defence to the applicant’s
contention that there is a settlement agreement between it and Ndou Attorneys
covering the 22 outstanding invoices.
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[10] The respondent’s further defence is that while it instructed AZ Legal to consider
the applicant’s bills, this was to assess how much SAMWU had paid over to the
applicant. According to the respondent there was never an agreement that the
taxed amounts would be paid to the applicant, AZ Legal had no mandate to make
the applicant settlement offers on behalf of SAMWU and SAMWU never made
any offers to the applicant either directly or through AZ Legal.
[11] Since the bills are disputed the respondent contend ed that the dispute was not
contractual in nature . Rather, it concern ed bills of costs arising from litigation
which was governed by Rule 70 of the Uniform Rules of Court and this process
included a notice of intention to tax, opposition to items, engagement between
the parties, taxation by the taxing master and the issuing of an allocatur. It was
the respondent’s case that the bill s are only finalised when the allocatur was
issued. The respondent contended that the applicant had not taken the process
to finality and sought to rely on a settlement agre ement where no authority
existed, no final offer was made and where there was no unequivocal acceptance
and consensus reached.
Evaluation
[12] Whether the dispute is contractual in nature or governed by Rule 70 depends on
the existence of a settlement on the o utstanding fees. The applicant sa id there
was a settlement. The respondent says there was not. any. A dispute of fact
thus arose on the existence of the settlement agreement, which, it is trite falls to
be resolved in terms of the respondent’s version, together with the admitted facts
in the applicant’s papers, unless the respondent’s version is so far-fetched so
as to be fictitious or untenable.1
[13] On 10 April 2025 Mr Derrick Hlungwane, the applicant’s cost consultant sent a
replying email to Adri Jone s from AZ Legal, the respondent’s cost consultant.
The email to which Mr Hlungwane was purportedly responding to was not
The email to which Mr Hlungwane was purportedly responding to was not
attached to the founding affidavit. However, it ma de reference to eleven final
offers relating to the cases that the outstanding fees pertain to. Mr Hlungwane
went on to record that receipt of the offers from Ms Jones was acknowledged
1 Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634G-635A
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and that the offers were accepted on a without prejudice basis. The email
concluded that the acceptance was not an acknowledgment of the offer’s
sufficiency concerning the applicant’s ‘professional entitlements’. The final offers
were however not attached to the founding papers.
[14] This acceptance was then followed up on 17 June 2025 when the applicant’s
director, Mr Ndou sent Ms Jones 11 letters. In each letter he accepted what he
referred to as the final offer in respect of the amount outstanding for the relevant
matter.
[15] The respondent’s cost consultants did not respond to the 10 April mail or the mail
of 17 June 2025. This application was issued on 25 June 2025 where Ms Jones,
in a confirmatory affidavit agree d with the respondent’s Mr Magagula that she
had no authority to conclude settlement agreements on SAMWU’s behalf.
[16] The applicant attached the bills of cost for each matter to the founding affidavit
and contended that these were the final settlement offers. However, none of the
bills were signed by the respondent, or a representative of the respondent . On
the papers before me the respondent denied that they were final settlements on
three grounds. First, because it overpaid the applicant and the applicant was in
fact indebted to it. Second, the mandate of the cost consultants was to determine
how much it had paid the applicant and third, the cost consultant had no mandate
to settle the alleged outstanding fees due to the applicant.
[17] The first ground is of little relevance because there is s no action proceedings
pending in respect of the alleged overpaid fees. The defence is therefore without
merit. The second and third grounds warrant some consideration. There was
just no evidence that the bills of cost constitute final settlement offers. Other than
to attach the bills the applicant offer ed no material evidence on why they were
binding contracts, and how these contracts were to be interpreted.
binding contracts, and how these contracts were to be interpreted.
[18] It was common cause that the email of 10 April 2025 reference d ‘FINAL
OFFERS’, but when regard is had to the documents attached to the founding
affidavit, it is by no means clear on the evidence what the handwritten and type
faced numbers are meant to signify, and no version was given on the papers as
to the relevance of the excel spreadsheets and their impact on the applicant’s
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Appearances
For the Appellants : HB Marais SC
Instructed : Ndou Attorneys
For the Respondent : M Botha
Instructed : McGregor Erasmus Inc
Date of hearing : 20 July 2026
Date of Judgement : 21 August 2026