H R Holfeld (Africa) Ltd v Karl Walter & Co GmbH and Another (1)

• Jurisdiction: South Africa
• Judge: Kirk-Cohen J
• Judgment Date: 12 September 1986
• Citation: 1987 (4) SA 850 (W)
• Court: Witwatersrand Local Division

Kirk-Cohen J:

On 14 May 1986 the applicant, without notice, H obtained a rule nisi against the first and second respondents together with certain ancillary relief. On the extended return day, 29 August 1986, I made the following orders:

'(1)

The application for an extension of the rule nisi is refused;

(2)

the rule nisi is discharged and the applicant is ordered to pay the first respondent's costs which will I include the costs of two counsel;

(3)

reasons for this judgment will be filed later, which will also include a decision on the first respondent's application that the costs should be on the scale of attorney and own client.'

This judgment contains my reasons and also deals with the issue J of attorney and client costs.

Kirk-Cohen J

A The rule nisi was the first step in a number of interrelated applications which also led to a counter-application by the first respondent for rescission of a judgment granted in this Court against it at the instance of the applicant in 1976. I was called upon only to deal with various points in limine raised by Mr Schwartzman on behalf of the first respondent that B the rule nisi should be discharged. After argument on the points in limine I discharged the rule nisi and it follows that the interim interdict referred to in para 3 of the rule nisi also fell away. The rule nisi and orders read as follows

'The Court hereby issues an order in the following terms:

A.

Directing that the matter be heard as one of urgency, C in terms of the provisions of Rule 6(12)(a), and condoning the applicant's non-compliance with the forms and service provided for in the Rules, without service hereof.

B.

That a rule nisi be issued calling upon the respondents to appear and to show cause, if any, to D this honourable Court on 3 June 1986 at 10h00, why an order in the following terms should not be granted:

(I)

Interdicting and restraining the first respondent from receiving from the second respondent (either directly or through any agent of the second respondent or otherwise) any consideration, whether in cash or in E kind, to which it may now or in the future be entitled from the second respondent (either directly or through any agent of the second respondent or otherwise).

(II)

Interdicting and restraining the second respondent from making over or paying any F consideration, whether in cash or in kind, to the first respondent (either directly or to any agent of the first respondent, or otherwise) to which the first respondent may now or in the future be entitled from the second respondent (either directly or through any agent of the second respondent or otherwise).

Orders (I) and (II) hereof pending the final outcome of -

(aa)

the legal G proceedings by the applicant against the first respondent in the continuation of the proceedings under case No 6413/1975, and

(bb)

the execution against the said consideration (whether in cash or kind), at the instance of the H applicant in pursuance of any money judgment that may be granted in favour of the applicant in such legal proceedings.

(III)

Ordering the first respondent, within one month calculated from the date of service upon it of the confirmation of the rule nisi in respect of this order, to submit to the I applicant's attorneys of record a full statement of account, which statement of account shall comply with the following requirements:

(i)

the statement of account must be in respect of all goods and/or services supplied by or on behalf of the first respondent to a J company known as Zambia Clay Industries Ltd, or alternatively to a body known as

Kirk-Cohen J

Indeco, or alternatively to A Klockner Industrie-Anlagen GmbH of West Germany, in respect of or relating to certain works performed in Zambia during or about 1972 and/or thereafter;

(ii)

the statement of account must specify -

(a)

the description and quantity of B goods and services supplied by the first respondent, and the dates of each such supply;

(b)

the total amount/s payable to the first respondent and dates when so payable;

(c)

the total amount/s paid to the first respondent and the dates of C all such payments;

(iii)

the statement of account must include a calculation showing the amount of commission due to the applicant, calculated at the rate of 8% on the total amount payable to the first respondent, and also interest thereon calculated at the rate of 6% per annum from the date D of the said supply by the first respondent up to 15 July 1976, and at the rate of 11% per annum from 16 July 1976 to 7 February 1985, and at the rate of 20% per annum from 8 February 1985 to the date of the account;

(iv)

the statement of account must also E include a conversion of the said total commission plus interest, as set out in (iii) above, calculated in the currency in which the amount/s referred to in (ii) above was expressed, and converted to South African rand at the ruling rate of exchange on the date of signing of the account;

(v)

the statement of account must be F supported by all vouchers, correspondence, books and documents in the possession of the first respondent or in the possession of its attorney/s or agent/s.

(IV)

Ordering the first respondent to attend a meeting at the offices of the applicant's G attorneys of record, on 11 August 1986 at 10h00 (or at such other place, and/or on such other date and/or time to which the applicant and first respondent may agree in writing) for the purpose of debating the said statement of account with the applicant.

(V)

In the event of the applicant and the first H respondent reaching an agreement on the amount due at the meeting referred to in (IV) above, which agreement will be proved by a certificate (which certificate may, on application by applicant herein, be made an order of Court) signed by the applicant's attorney of record, ordering the first respondent to pay to the applicant the amounts so agreed upon (plus interest on the I commission from the date of the account to the date of payment at the rate of 20% per annum), within seven days of the date of the certificate, and ordering first respondent to pay to the applicant the applicant's taxed or agreed costs in respect of all the legal proceedings relating to this matter, J over and above

Kirk-Cohen J

A the costs already ordered by the above honourable Court on 14 December 1976 under case No 6413/1975, plus such costs in respect of all other relevant steps.

(VI)

In the event of the applicant and the first respondent failing to reach agreement at the aforesaid meeting, which failure will be B proved by a certificate, signed by the applicant's attorney of record, ordering that the debate be referred to a referee for decision, which referee shall be a senior counsel agreed upon between the parties (which agreement shall be reached within seven days of the certificate certifying the failure to reach agreement on the debt), and C further ordering that if the parties cannot agree upon the identity of the referee as aforesaid, authorising the chairman of the Johannesburg Bar Council (whom failing, the applicant's attorney) to appoint a referee, who shall be a senior counsel; and, furthermore, ordering the first respondent to appear before such referee, at a time and place determined by the said referee, for D the purposes of debating the said or any account and finding the amount due by first respondent to applicant with interest and costs, including the costs of such hearing and the referee's own costs, and ordering that such referee's certificate signed by the said referee may, on application by the E applicant herein, be made an order of Court.

(VII)

Ordering that the issues to be debated shall be the correctness of:

(i)

the contract price and payment to first respondent, as set out in (III)(i) and (ii) above, and

(ii)

F the arithmetic calculations set out in (III)(iv) and (v) above.

(VIII)

Directing that, in the event of the first respondent failing to comply with any of the time limits or requirements set out above, which non-compliance will be certified by the applicant's attorney of record, or the G referee (as the case may be), then

(i)

the first respondent shall be deemed to be in default...