Cwati and Another v Nompozolo (CA33/2016) [2016] ZAECGHC 44 (14 June 2016)

Cwati and Another v Nompozolo (CA33/2016) [2016] ZAECGHC 44 (14 June 2016)

The magistrate misdirected herself by relying on allegations not contained in the affidavits and by dismissing the defence of non-joinder without proper consideration of the evidence before her. The opposing affidavits raised a bona fide defence that the fees were due to Nompozolo & Gabelana Incorporated, not the plaintiff personally, and that the company was still operational according to the bank confirmation letter. The magistrate further erred by requiring documentary proof rather than bona fide averments. The summary judgment was therefore improperly granted and must be set aside. The costs of the appeal should follow the result, but no order is made as to costs in the other four...

Citation
[2016] ZAECGHC 44
Parties
Appellant: Lindile Percy Cwati; Appellant: Babalwa Ursula Malgas; Respondent: Lindile Brian Nompozolo
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
14 June 2016
Case Number
CA33/2016
Procedural Posture
Civil Appeal / Appeal Against Summary Judgment in Magistrate's Court
Outcome
Appeal upheld; summary judgment set aside; defendants granted leave to defend; costs to follow the result.
Judges
Pickering, Stretch
Legal Topics
Summary Judgment, Non Joinder, Attorneys Fees, Company Existence
Civil Procedure Summary Judgment Non Joinder Attorneys Fees Company Existence

Case Brief

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Parties

Lindile Percy Cwati

Appellant

Babalwa Ursula Malgas

Appellant

Lindile Brian Nompozolo

Respondent

Procedural Posture

Civil Appeal / Appeal Against Summary Judgment in Magistrate's Court

Legal Issues

  1. 1 Whether the magistrate erred in granting summary judgment to the plaintiff.
  2. 2 Whether Nompozolo & Gabelana Incorporated should have been joined as a party to the proceedings.
  3. 3 Whether the plaintiff was entitled to claim fees for work done prior to being interdicted and struck off the roll of attorneys.

Ratio Decidendi

The magistrate misdirected herself by relying on allegations not contained in the affidavits and by dismissing the defence of non-joinder without proper consideration of the evidence before her. The opposing affidavits raised a bona fide defence that the fees were due to Nompozolo & Gabelana Incorporated, not the plaintiff personally, and that the company was still operational according to the bank confirmation letter. The magistrate further erred by requiring documentary proof rather than bona fide averments. The summary judgment was therefore improperly granted and must be set aside. The costs of the appeal should follow the result, but no order is made as to costs in the other four...

Court Disposition

Appeal upheld; summary judgment set aside; defendants granted leave to defend; costs to follow the result.

Orders

  • The appeal is upheld with costs.
  • The magistrate's order is set aside and substituted with the following order: (a) Summary judgment is hereby refused. (b) The defendants are given leave to defend the action. (c) The costs of the summary judgment application are to be costs in the cause.