Orkin Lingerie Co (Pty), Ltd v Melamed & Hurwitz

• Jurisdiction: South Africa
• Judge: Trollip J
• Judgment Date: 20 September 1962
• Citation: 1963 (1) SA 324 (W)
• Hearing Date: 01 September 1962
• Court: Witwatersrand Local Division

Trollip, J.:

The exipient has excepted to the respondents' declaration on the ground, inter alia, that it discloses no cause of action. I shall H refer to the parties as the 'defendant' and 'plaintiffs' respectively.

The declaration sets out that the plaintiffs are attorneys practising in partnership in Johannesburg and they acted for the Central Trading Company (Pty.),Ltd., referred to in the declaration as 'the company', in an application brought in the Transvaal Provincial Division against it for winding-up by the defendant, whose attorney was one Mendel Levin. On the 15th April, 1958, when the application was still pending, the plaintiff, Joel Melamed, and Mendel Levin entered into an oral agreement settling the proceedings on certain terms and conditions and

Trollip J

that agreement was then confirmed by an exchange of letters. Those allegations are contained in para. 4 of the declaration which must be set out in full:

'4. (a)

On the 15th of April, 1958, and at Johannesburg, an oral agreement was entered into between Joel Melamed, acting on A behalf of the plaintiffs, and the said Mendel Levin, acting on behalf of the defendant, both of them duly authorised, where under it was agreed that the said application would be settled on the following terms and conditions:

(i)

That the said application would be withdrawn;

(ii)

That certain Rashid Ismail would pay to the plaintiffs the taxed costs incurred by the said company in opposing the said application; and,

(iii)

B That in the event of the said Rashid Ismail failing to pay to the plaintiffs the said taxed costs, the defendant would pay the same to the plaintiffs.

(b)

At the same time the said Mendel Levin acted as the duly authorised attorney and agent of the said Rashid Ismail.

(c)

The said agreement was confirmed by a letter dated the 15th April, 1958, written by the plaintiffs addressed to the said C Mendel Levin, in reply to a letter dated the 14th April, 1958 written by the said Mendel Levin addressed to the plaintiffs, copies whereof are hereunto annexed marked 'A' and 'B'.'

Annexure 'A' is a copy of a letter dated 14th April, 1958, written and apparently signed by Mendel Levin to the plaintiffs relating to the proceedings and stating:

'I received a telephone call this morning to the effect that the above D matter has been settled on the following basis:

(a)

That the application herein be withdrawn.

(b)

That the balance of the capital amount be paid to me forthwith.

(c)

That Rashid Ismail pay the respondent's costs.

(d)

That a notice of withdrawal be served on you by me.

Will you please confirm the above, whereupon the requisite notice will be served upon you.'

E Annexure 'B' is a copy of a letter, dated 15th April, 1958, written and apparently signed by the plaintiffs to Mendel Levin in reply and reading as follows:

'We are in receipt of your letter of the 14th instant, in connection with the above matter, contents of which have been noted.

We confirm the telephonic conversation which the writer had with your F Mr. Levin to-day, when the terms of settlement as outlined in your letter of the 14th instant were confirmed subject to the further condition that should Rashid Ismail fail to pay the respondent's costs, then the applicant will be liable to pay the respondent's taxed costs.

We shall be pleased if you will kindly serve the notice of withdrawal on us.

In terms of the settlement, we enclose herewith our cheque for the sum of £2112s.'

G The declaration proceeds to allege that in pursuance of the settlement the defendant's application was withdrawn and that on the 15th April, 1958, the company ceded

'its claim for its said costs against the defendant to the plaintiffs'

...