Ramsamy v Nonxuba

• Jurisdiction: South Africa
• Judge: Musi J
• Judgment Date: 14 February 2008
• Docket Number: 5008/07
• Court: Orange Free State Provincial Division
• Hearing Date: 24 January 2008
• Citation: 2008 JDR 1055 (O)

C.J. Musi J

[1]

This is an opposed application for summary judgment for the payment of the sum of R104 166.04 plus interest.

[2]

The plaintiff and the defendant are attorneys. The plaintiff, who practices in Durban, was the attorney of record for Andile Mgoduka in an action against the Road Accident Fund (RAF) under case number 5631/2002 in the Durban and Coast Local Division of the High Court of South Africa.

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C.J. Musi J

[3]

The merits of the matter between the RAF and Mgoduka were settled where after, at the instance and request of Mgoduka, the plaintiff's attorney's firm, Justice Reichlin Ramsamy Attorneys, were substituted by Nonxuba Incorporated, a company with limited liability duly registered as such in terms of the company laws of South Africa. Nonxuba Incorporated proceeded to render professional services to Mgoduka in relation to his claim.

[4]

On 02 May 2006 the defendant gave the following written undertaking to the plaintiff.

"UNDERTAKING

I, the undersigned:

ZUKO MACK MICHAEL NONXUBA

of Nonxuba Incorporated, situated at No: 11 Zeiler Street, Queenstown make an undertaking to settle Messrs Justice Reichlin Ramsamy taxed Attorney and Client Bill of Costs, Rodel Finance Loans and

2008 JDR 1055 p3

C.J. Musi J

disbursements due to Messer Reichlin Ramsamy Attorneys as previously agreed upon finalisation of the claim of Andile Mgoduka.

THUS DONE AND SIGNED AT QUEENSTOWN ON THIS 2ND DAY OF MAY 2006 IN THE PRESENCE OF THE UNDERMENTIONED.

(Signed) ZMM NONXUBA"

[5]

The litigation in the matter between Mgoduka v RAF was finalised on 23 November 2006 when the court awarded Mgoduka the sum of R751 448.62 plus costs including the qualifying fees of experts.

[6]

The defendant engaged professional tax consultants to draw a bill for taxation of fees and disbursements due to Nonxuba Incorporated. That bill has not yet been taxed by the Taxing Master.

[7]

On 24 August 2007 the plaintiff wrote the following letter to the defendant.

2008 JDR 1055 p4

C.J. Musi J

"Nonxuba Incorporated

Per telefax 051 447 8881

Dear Sirs,

Re: Andile Mgoduka / RAF

YOUR CORRESPONDENCE DATED 23 AUGUST 2007 REFERS:

We require an undertaking that our fees and disbursements in the amount of R104 166.04 would be paid upon receipt of the cost herein (my underlining).

Should we not receive the said undertaking within 5 days we would be proceeding with summons against your firm.

Yours Faithfully,

(Signed) JUSTICE REICHLlN RAMSAMY "

[8]

The plaintiff's attorney and client bill was taxed in May 2007 and the sum of R104 166.04 represents the balance due and certified under the taxed bill as fair and reasonable for the services rendered by the plaintiff to Mgoduka, less the amount previously received by the plaintiff.

[9]

On 25 October 2007 the plaintiff issued summons against the defendant wherein he requested judgment against the defendant for the payment of R104 166.04 plus interest and costs.

2008 JDR 1055 p5

C.J. Musi J

[10]

On 25 October 2007 the defendant filed his notice of intention to defend the action. On 12 November 2007 the plaintiff filed a notice that application for summary judgment would be made on the 29 November 2007.

[11]

On 23 November 2007 the plaintiff filed a notice of removal from the roll. On the same day the plaintiff informed the defendant by letter about the removal. The relevant portions of the letter read as follows:

"SUMMARY JUDGEMENT APPLICATION: 29 NOVEMBER 2007 AT 9H30

We refer to the above matter and the application for summary judgment that was set down for hearing on the above mentioned date. Kindly take note this matter has been removed from the roll. A copy of the notice of removal from the roll was also delivered at your offices. It is our instruction that the main action will proceed" (my underling)

[12]

On 11 December 2007 the plaintiff filed a notice of set down whereby the same matter was set down for 24 January 2008 for an application for summary judgment. This notice was delivered to the defendant on 11 December 2007. The

2008 JDR 1055 p6

C.J. Musi J

defendant filed his affidavit in terms of Rule 32(3)(b), together with his plea and Rule 14 notice on 19 December 2007.

[13]

The defendant challenged the application on numerous grounds. He alleged that he signed the undertaking of 02 May 2007 on behalf of Nonxuba Incorporated and not in his personal capacity; that the plaintiff also acted on behalf of Messrs Justice Reichlin Ramsamy Attorneys and not in his personal capacity; that the plaintiff's claim will only arise after the RAF has paid the taxed costs of Nonxuba Incorporated; that Andile Mgoduka has a substantial interest in this matter and should therefore have been joined; that the taxed bill of costs is a liquid document and should have been attached to the application and that the letter of 23 November 2007, mentioned in paragraph 11 above, constituted an agreement between the parties.

[14]

My conclusion in relation to some of the points...