Tredoux v Kellerman

• Jurisdiction: South Africa
• Judge: Griesel J, Motala J and Zondi J
• Judgment Date: 03 February 2009
• Docket Number: A459/08
• Hearing Date: 03 February 2009
• Counsel: LL Zazeraj for the appellant. DJ Cooke for the respondent.
• Court: Cape Provincial Division

Griesel J:

Introduction F

[1] The appellant (as second plaintiff) issued summons against the respondent (as defendant), claiming payment of R139 308, together with interest and costs. The claim arises from professional services rendered to the respondent in his divorce action by the appellant, a G practising advocate at the Cape Bar, duly instructed thereto by the first plaintiff, a local attorney. (The first plaintiff instituted a separate claim for the same amount, being disbursements allegedly incurred by him on behalf of the respondent. In addition, the first plaintiff also claims payment of some R45 000 in respect of his own fees. His claim, however, H is not relevant for purposes of this appeal. I shall refer to the appellant and the first plaintiff individually as such and collectively as 'the plaintiffs'.)

[2] After the respondent gave notice of his intention to defend the action, the plaintiffs applied for summary judgment. The respondent filed an I affidavit opposing the application, raising a number of defences. The matter came before Joubert AJ, who dismissed the application for summary judgment, ordering the plaintiffs to pay the costs of the application. Both plaintiffs thereupon applied for leave to appeal against the costs order, but this was refused by the court a quo. Subsequently, however, the necessary leave to appeal to this court was granted to the J appellant by the Supreme Court of Appeal.

Griesel J

Approach on appeal A

[3] The main grounds of appeal advanced on behalf of the appellant are that the judge a quo erred in the exercise of his discretion, in failing to apply 'the established principles pertaining to costs in summary judgment applications'; that such failure resulted in the decision being 'capricious, untoward and with no foundation'; and that there were no B circumstances present to warrant or justify a departure from 'the established principles pertaining to costs in these type of matters'.

[4] The difficulty in evaluating the appellant's argument is that, save for stating that he was satisfied that the affidavit opposing summary judgment 'sets out enough of a defence to enable me to grant the defendant/ C respondent leave to defend', Joubert AJ did not furnish any reasons for the order granted by him. The application for leave to appeal was likewise dismissed without reasons being furnished. This omission by the learned judge is unfortunate and has undoubtedly complicated our task on appeal. [1] D

[5] Be that as it may, the well-established principle of our common law is that in awarding costs a court of first instance exercises a judicial discretion, and a court of appeal will therefore not readily interfere with the exercise of that discretion:

'The power of interference on appeal is limited to cases of vitiation by E mis-direction or irregularity, or the absence of grounds on which a court, acting reasonably, could have made the order in question. The Court of appeal cannot interfere merely on the ground that it would itself have made a different order.' [2]

[6] Counsel for the appellant has been unable to persuade us that the F decision of the court a quo is vitiated by any misdirection or irregularity. The present appeal therefore turns on the question whether or not there are grounds on which a court, acting reasonably, could have made the costs order in question. I accordingly turn to consider this question against the following factual background.

Factual background G

[7] It is common cause that, in terms of an oral agreement concluded in January 2006, the respondent appointed the first plaintiff as his attorney to represent him in the divorce action instituted against him by his wife. According to the particulars of claim, it was expressly agreed that the first H

Griesel J

A plaintiff would engage the services of counsel to represent the respondent in the abovementioned matters. With regard to fees, it was agreed that the respondent would pay a deposit to the first plaintiff and would make further payments to him on presentation of an invoice or statement of account depicting the reasonable fees for services rendered. In addition, B he would recompense the first plaintiff for all reasonable and necessary disbursements made by the first plaintiff in acting for the respondent, which would include counsel's fees.

[8] Pursuant to the agreement, the first plaintiff engaged the professional services of the appellant to act as the respondent's counsel in the divorce C proceedings instituted, as well as any ancillary matters. The plaintiffs duly acted as the respondent's legal representatives in the aforesaid proceedings up to 18 December 2006, when the respondent informed the plaintiffs to stay all services since he was in the process of attempting a reconciliation with his wife.

[9] Certain interim payments had been made by the respondent up to D that stage, the last such payment being made on 6 November 2006, covering the plaintiffs' fees and disbursements up to 3 October 2006. According to the plaintiffs, their fees due for services rendered during the period 4 October 2006...