Credex Finance (Pty) Ltd v Kuhn

• Jurisdiction: South Africa
• Judge: Didcott J and Kriek J
• Judgment Date: 29 April 1977
• Citation: 1977 (3) SA 482 (N)
• Hearing Date: 29 April 1977
• Court: Natal Provincial Division

Didcott, J.:

This is an appeal against a decision in the magistrate's court in Durban. I shall refer to the parties by their designations in the court below, where the present appellant was the plaintiff and the present respondent was the defendant.

H The plaintiff sued the defendant for the sum of R23,60, together with mora interest thereon at the rate of 11 per cent per annum, collection charges amounting to R2,36, and costs taxed as between attorney and client. According to the particulars of the claim annexed to the summons, which was issued during February 1977, the plaintiff had lent R113,42 to the defendant, who had undertaken to repay it by June 1976 and had in fact repaid all of it, except for the claimed amount of R23,60. One of the terms of the agreement governing the loan, it was also alleged, had been

Didcott J

that, in the event of the defendant's default in the repayment of the sum lent or any part of it, he would be liable to pay to the plaintiff collection commission on the outstanding amount and the costs as between attorney and client of any legal A proceedings brought for its recovery.

The defendant did not enter an appearance to defend the action. The plaintiff then applied for judgment by default. It filed a document recording the conditions of its transaction with the defendant which it had stipulated and which he was said to have accepted when he applied for the loan. The document bore the signature of someone with the defendant's name. Its terms included one dealing with collection commission and attorney B and client costs, which was to the same effect as the pleaded term. This was to be found in clause 5 of the document. In the absence of any denial by the defendant of the plaintiff's allegations, supported as they apparently were by the document, he must be taken for present purposes in fact to have agreed to and to have incurred a liability under the term C in question. As I understand his reasons for judgment, the magistrate accepted this.

The magistrate granted judgment by default for the payment of the sum of R23,60 and mora interest. He substantially allowed the claim for collection commission. That part of his judgment used a different formula from the one appearing in the claim. I am not sure whether there was any real discrepancy between the D two. But it is unnecessary to consider that because the deviation has not been challenged on appeal. He refused however to award costs on an attorney and client scale. Instead he allowed costs in the sum of R12,80 only. This was the total of the sum of R8 endorsed on the summons and messenger's fees of R4,80. It represented costs as between party and party until E and including the date of the default judgment.

The plaintiff has appealed against the magistrate's refusal to award costs on the attorney and client scale. The difference in amount between such costs in the present case and those actually allowed is no doubt negligible. But, so...