Hawkes v Hawkes and Another (713/02 , ECJ244/2002) [2006] ZAECHC 31; 2007 (2) SA 100 (SE) (6 July 2006)

FORM A

FILING SHEET FOR EASTERN CAPE

JUDGMENT

ECJ no : 032

PARTIES: GLEN

ANDREW HAWKES

APPLICANT

AND

ANDREA JANE HAWKES First Respondent

REGISTRAR OF DEEDS,

KING WILLIAM’S TOWN Second Respondent

Registrar: Case no. EL 244/2002

ECD no. 713/2002

Magistrate:

Supreme Court of Appeal/Constitutional Court:

DATE HEARD: 06/07/2006

DATE DELIVERED:

JUDGE(S): Leach J

LEGAL REPRESENTATIVES -

Appearances:

for the State/Applicant(s)/Appellant(s):

for the accused/respondent(s): DH De La Harpe

Instructing attorneys:

Applicant(s)/Appellant(s): Netteltons

Respondent(s): Wheeldon Rushmere & Cole

CASE INFORMATION -

Nature of proceedings : REASONS FOR JUDGMENT

THE HIGH COURT OF SOUTH AFRICA

(EAST LONDON CIRCUIT LOCAL DIVISION)

CASE NO: EL 244/2002

ECD 713/2002

In the matter between: Reportable

GLEN ANDREW HAWKES Applicant

and

REGISTRAR OF DEEDS,

KING WILLIAM’S TOWN Second Respondent ______________

REASONS FOR JUDGMENT

______________

SUMMARY

Advocate giving an undertaking on behalf of his client not to transfer propertry the client had sold – undertaking given without a mandate, in the absence of the attorney and client, and contrary to mandate to oppose an interdict sought against the client to restrain her from transferring such property – client not bound by the undertaking given on her behalf.

LEACH, J:

The applicant and the first respondent are married to each other out of community of property and subject to the system of accrual. Their marriage has failed, and divorce proceedings are presently pending.

On 9 March 2006, the applicant sought an urgent interdict in the East London Circuit Local Division to restrain the first respondent from alienating, encumbering or transferring certain immovable property which is presently registered in her name. In the circumstances more fully described below, the court postponed the matter – at the same time recording that the first respondent had undertaken not to take any steps towards effecting transfer of the immovable property in question prior to the resolution of the application. Those proceedings are presently postponed sine die.

The applicant thereafter ascertained that the first respondent was in fact in the process of transferring the immovable property to a person to whom she had sold it. He therefore launched the present proceedings in which, in effect, he seeks the same relief which he had sought in the earlier interlocutory application which stands adjourned, although on this occasion, he cited the Registrar of Deeds as an interested party.

The applicant failed to give notice of these proceedings to either respondent and, in effect, the matter came before an acting judge of this court on 2 June 2000 as an ex parte application. This was, of course, wholly undesirable as notice could and should have been given and, in my view, the acting judge erred in having entertained the matter without that being done. Be that as it may, he issued a rule nisi calling upon the first respondent to show cause why, pending the finalisation of the divorce between herself and the applicant, she should not be interdicted and restrained from alienating or encumbering the immovable property.

The lis between the applicant and the first respondent was clearly the same as that in the earlier application which presently stands adjourned in the East London court. That being so, it is somewhat surprising, to say the least, firstly, that the applicant incurred the costs of launching fresh proceedings when all that was necessary was to amplify the papers already before court in the East London application and, secondly, that lis pendens was not raised as a defence by either of the respondents. In any event, I ordered that transfer of the property should be restrained until the interdict in the East London court had been determined and indicated that my reasons would follow. These are those reasons.

At the outset, it is necessary to revert to the events that occurred in East London on 10 March 2006 when the first interlocutory application came before court. At that time the divorce litigation between the applicant and the first respondent was fairly advanced. During the course of those proceedings, the applicant’s plea and counterclaim were amended to introduce an allegation that the estate of the first respondent had shown a greater accrual than that of the applicant, thereby entitling the applicant to share therein. It was as a result of this amendment that first respondent’s sale of the immovable property became an issue between her and the applicant and, as the applicant correctly surmised that she intended selling the property in question, he launched urgent interdict proceedings on 9 March 2006 and set the matter down for hearing the following day.

The first respondent had instructed an attorney, a Mrs Ribeiro, to act for her in the divorce. Unfortunately, at the time the urgent application was launched, Mrs Ribeiro was in Pretoria and she instructed an advocate (to whom I shall refer as “W”) who apparently practises from his home in Stutterheim, to oppose the application or to take such other action as he considered to be “in the first respondent’s best interests.” Accordingly, on 10 March W set off from Stutterheim in order to “represent” first respondent (I use the word “represent” with some hesitation in the light of the events which followed).

On his arrival in East London, W went to the attorney’s offices in order to fetch the brief. He avers that while there he telephoned the first respondent “to advise her of the application” and to “outline to her that the application was evidently motivated by an apprehension on the part of the applicant” that the first respondent intended to sell the property.1 According to W, the first respondent then informed him that she had already sold the property. While the first respondent states that she has no recollection of this telephone call, for present purposes I am prepared to accept that it did take place – particularly as she had indeed sold the property and it appears from the affidavit of attorney Wylde, the applicant’s attorney of record, that W had told at court that he had telephoned the first respondent that morning and been told that the property had been sold.

In any event, after speaking to the first respondent W proceeded to court to represent the first respondent in her opposition to the application (although at that stage, he did not know what the first respondent’s case might be as neither he nor his attorney appears to have taken a statement from her and there was certainly no answering affidavit available to place before court). In doing so, and in breach of one of the fundamental rules of the Bar, he went to court alone and without an instructing attorney.

In his memorandum of 31 May 2006, W stated that the learned judge due to hear the matter indicated in chambers that he felt that the applicant had made out a prima facie case for the grant of an interim interdict and requested counsel to attempt to achieve an interim accommodation. The learned judge’s remarks may have been somewhat unfortunate, particularly as no-one knew what the first respondent’s case might be. But in any event, one would have thought that at the very least, counsel worth his salt would have sought time to obtain proper instructions and to place the first respondent‘s case before court by way of an affidavit.

Instead, W entered into settlement discussions with the applicant’s legal representatives during which he disclosed that the property had indeed been sold. More importantly, as he was of the view that the interim order would certainly be granted if the matter proceeded to argument (how he could have reached that conclusion is beyond me, especially as he did not have the faintest clue of the merits of whatever the first respondent’s case in opposition might be as neither her nor his absent attorney had consulted with her in that regard), W informed the other side that the first respondent undertook not to effect transfer of the immovable property pending the resolution of the matter. On the strength of this undertaking, the application was postponed with the costs occasioned being reserved. In making that order, the court specifically recorded that:

“It is noted that the immovable property described as Erf 171, local municipality of Buffalo City, division of East London, Province of the Eastern Cape, has been sold and respondent has given an undertaking that she will not take any steps towards effecting transfer of the said immovable property prior to the resolution of this application.”

Subsequently, in seeking to justify his actions, W stated that it appeared to him in the circumstances to be in the first respondent’s best interests to give the undertaking “particularly given that it was the best way of protecting the sale”. Again, one does not know how he was able to determine what was in the first respondent’s best interests if he did not know what her case might be, and it is hard to comprehend how he could have thought that giving the undertaking would be the best way of protecting the sale where it placed the first respondent in no better position that what she would have been in had she unsuccessfully opposed the relief sought against her.

Leaving that aside for the moment, the respondent had, of course, not given any such undertaking and why W brought both the court and the other side under the impression that she had, is beyond me. If he was of the view that the application would inevitably succeed, there seems to me to have been no valid reason why he could not have contacted the respondent to get her instructions and obtain a mandate to settle – she was, after all, readily contactable as is evidenced by the fact that he had telephoned her earlier in the day. 2

In any event, after W had brought both the applicant’s legal representatives and the court under the mistaken impression that the first respondent had indeed undertaken not to effect transfer of the property, the matter was postponed. W subsequently informed the first respondent's present attorney of record3 that he had "deemed" that he had the authority to bind her without her instructions. The first respondent later ascertained what had happened and, most indignantly, regarded herself as not being bound by an undertaking which she had not authorised and about which she had not known. Her ire is understandable, but the issue to be addressed is to whether, despite her natural indignation, she is bound thereby.

In the normal course of events, the conduct of a party’s case at a trial of an action is in the entire control of such party’s counsel.4 However, although counsel has authority to compromise an action or any matter in it, no such compromise will be binding if it flies in the face of client’s instructions to the contrary.5 Thus in Ras v Liquor Licensing Board Area Number 11, Kimberley6, Van Heerden, J said:

“From the authorities cited to the Court it is clear that a client is not bound by the actions of his legal representatives - attorney or counsel – where such representative had exceeded the mandate given him and has achieved an object that had not been intended by his principal.”

In his memorandum, W conceded that “technically speaking, my mandate was to oppose the grant of the interim relief sought” but stated that he gave the undertaking on behalf of the first respondent as he felt that successful opposition to the interim relief was “clearly not possible”. However, the undertaking he gave amounted to a capitulation which was contrary to his instructions to oppose the interlocutory relief the applicant was seeking. In addition, his action in “deeming” himself authorised to give such undertaking without in fact obtaining instructions from the first respondent in that regard, deprived her of the opportunity of discussing, considering and deciding upon a course of action with her legal representative and, indeed, of terminating his mandate if he intended to act contrary to her wishes. This amounted to a failure of justice7 and, in my view, a court will not hold a party bound by an agreement concluded in such circumstances.

In any event, in concluding the agreement that he did on behalf of the first respondent, W acted adverse to the first respondent’s interests. After all, if he had asked for time to consult with his client to place her version before court such a request would almost undoubtedly have been granted. And if her case had been put on affidavit but then rejected by the court, she would have been in no worse position than that in which the undertaking placed her. The agreement could therefore never have been in the first respondent’s best interests. Indeed, by preventing her from transferring the property which she had already sold, it was clearly adverse to her interests – and accordingly required a special mandate.8 There was no such mandate and the first respondent was therefore not bound by the undertaking given by her counsel on her behalf.

It would have been different had W consented to the issue of an interdict restraining the first respondent from transferring her property. In those circumstances the first respondent would probably be bound by the order which, like an order granted in error, would have been valid and binding until such time as it was set aside. But the proceedings for an interdict were postponed and the mere recording of the undertaking in my opinion did not, without more, lead to the terms of that undertaking acquiring the force of an order of court.

On the other hand, the applicant and the court in East London were brought under the impression that the first respondent had agreed not to effect transfer of the immovable property in question, and the first respondent subsequently became aware that her counsel had purported to bind her in that regard. It is opportunistic in the extreme, for her now to seek to transfer the property before that application is adjudicated upon, well knowing that both the court and the applicant had agreed to postpone the matter sine die under the impression that she had undertaken not to effect transfer. Not only does the applicant, at the very least, have an arguable case (I put it no higher than that) for an interim interdict, but the first respondent’s actions in seeking to transfer the property behind his back is not only opportunistic but amounts to an invasion of the applicant’s right to have the East London interim application decided.

In these circumstances, and as the balance of convenience favours the first respondent being interdicted and restrained from effecting transfer until such time as the application pending in the East London court is determined, I granted interdictory relief pending determination of the East London application.

In regard to the question of costs, the applicant was obliged to come to court to obtain relief. There was no reason for the costs not to follow the event. The applicant asked for such costs to be on the scale as between attorney and own client, but as the first respondent did not renege upon any agreement which bound her, I was of the view that a punitive costs order was not appropriate. I therefore ordered the first respondent to pay costs as between party and party.

_____

L.E. LEACH

Judge of the High Court

1 I quote from a memorandum W prepared on 31 May 2006 which was included in the papers before me.

2 For that matter, I do not understand why he did not make arrangements for her to be present at court so that he could take instructions, preferably with an attorney to record those instructions.

3 Dissatisfied with the services of Mrs Ribeiro, she has since changed her attorneys.

4 Benjamin v Gurewitz 1973 (1) SA 418 (A) at 428 E-F and Hlobo v Multilateral Motor Vehicle Accidents Fund 2001 (2) (SA) 59 (SCA) at 65 C-D

5 See: Hlobo’s case supra.

6 1966 (2) SA 232 (C) at 237

7 Cf. S v Majola 1982 (1) SA 125 (A) at 133.

8 See Mbanga v MEC for Welfare, Eastern Cape & Another 2002 (1) SA 359 (SE) at 367 and the cases there cited.