Lepomane v Gildenhuys Malatji Incorporated Attorneys and Others (048040/24) [2024] ZAGPPHC 1391 (19 December 2024)

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

Case Number: 048040/24

(1) REPORTABLE: NO

(2) OF INTEREST TO OTHER JUDGES: NO

(3) REVISED

DATE: 19/12/24

SIGNATURE:

In the matter between:

EPHRAIM LEPOMANE

APPLICANT

and

GILDENHUYS MALATJI INCORPORATED

FIRST RESPONDENT

ATTORNEYS

MORIBE ATTORNEYS

SECOND RESPONDENT

MORIBE KATLEGO SANDFORD

THIRD RESPONDENT

LEGAL PRACTICE COUNCIL

FOURTH RESPONDENT

ROAD ACCIDENT FUND

FIFTH RESPONDENT

JUDGEMENT

Ramawele AJ

Introduction

[1] This is an application whereof the applicant seeks the following relief:

[1.1] That the First Respondent be ordered to charge its fees in respect of the settled RAF claim up to a third of the fees chargeable by the Second Respondent as the Instructing Attorneys, alternatively

[1.2] That the First Respondent be ordered to charge its fees on a scale as between party and party as a correspondent attorney in respect of the settled matter between the Applicant and the Fifth Respondent, under Case Number: 77103/2016;

[1.3] That the First Respondent be ordered to furnish the Applicant's attorneys of record with all the contents of the file in the matter, as between the Applicant and the First Respondent, under Case Number: 77103/2016;

[1.4] That at least 25% of the capital amount (i.e. R170,000) be paid into the Fourth Respondent's nominated account pending the outcome of the matter, bearing Case Number: 2023-127936, before this court[1];AND

[1.5] That the First Respondent be precluded from handling the Applicant's Road Accident Fund matter as it relates to the Fifth Respondent, including attending to taxation of the costs relating to the quantum of the matter.

Factual Background

[2] The Applicant was involved in a motor collision and sustained injures. Subsequently, the Applicant, represented by the Second Respondent, instituted a medical negligence claim against the MEC of the North West Province. This claim was successfully prosecuted by both the First and Second Respondents.

[3] The First and Second Respondents had a business agreement regarding their fee structure for matters that they handled jointly. The Applicant contends that he is not bound by this business arrangement. This dispute is of no consequence owing to the concession made by both parties in the papers and the further undertaking by the First Respondent regarding the scale of costs to be taxed.

[4] The First Respondent prosecuted a RAF claim on behalf of the Applicant to finality, with the merits thereof settled on a 80/20 basis in favour of the Applicant. There is a dispute as to whether the First Respondent was acting as a correspondent attorney or instructing attorney when it prosecuted this claim.

[5] The Applicant and the Second Respondent have also concluded a contingency fee agreement, the validity of which is disputed by the Applicant.

[6] Although cited as a party, the Second Respondent has not participated in these proceedings.

[7] During the proceedings, the Applicant did not persist with prayer 1.4 above, because, the first respondent has conceded the relevant points, therefore rendering this relief unnecessary.

[8] In its Heads of argument, the First Respondent submitted, amongst others, that "in essence, the Applicant has launched these proceedings and has sought the specific relief under circumstances where the First Respondent has already charged its fees on a party and party scale and communicated this to the Applicant's attorneys of record". The applicant disputes that the First Respondent has done so".

[9] In my view, I conveyed to the parties, if the First Respondent has already charged the Applicant on a party-and-party scale and the bill of costs has been taxed, the Applicant would have a different remedy available for challenging the Taxing Master's determination of the taxed bill of costs. This is not an application where the determination of the Taxing Master is being challenged but rather a dispute over the appropriate scale of fees that should be charged by the First Respondent.

[10] The Applicant submits that the First Respondent intends to charge the Applicant on attorney-client scale, a claim which the First Respondent denies. I therefore accept that the First Respondent has not yet charged the Applicant on an attorney-client scale as alleged by the Applicant. In an application of this nature, where any concession would in any event attract a cost order, it is unlikely that the First Respondent would deny to act in a specific way if such intention existed.

[11] Since the First Respondent has now undertaken to charge the Applicant on a scale as between party-and-party, there is no need to delve further into these issues. It is clear from the papers that both parties are involved in interlocutory litigation skirmishes that are irrelevant to the present application.

[12] To prevent further litigation squabbles, I do not think that it would be prejudicial to the First Respondent to deliver the contents of the file to the Applicant. Doing so would facilitate the resolution of this matter during taxation and avoid unnecessary additional costs.

[13] The only issue that remains is that of costs.

[14] The Applicant has substantially succeeded in obtaining the relief sought. The First Respondent offered less resistance when it was pointed out that it had conceded to the relief relating to taxation of costs on a party-and-party scale.

[15] I therefore see no reason why costs should not follow the result.

Order

In the result, I make the following order:

[1] The First Respondent is ordered to charge fees on a scale as between party and party in respect of the settled matter between the Applicant and the Fifth Respondent under Case Number: 77103/2016.

[2] The First Respondent is ordered to furnish the Applicant's attorneys of record with all the contents of the file in the matter as between the Applicant and the First Respondent under Case Number: 77103/2016.

[3] The Applicant is to pay the First Respondent costs for copies of the file in the matter under Case Number: 77103/2016.

[4] The First Respondent to pay the costs of the Applicant in this application.

RATHAGA RAMAWELE

ACTING JUDGE OF THE HIGH COURT

GAUTENG DIVISION OF THE HIGHT COURT, PRETORIA

Date of hearing: 25 November 2024

Date of judgment: 19 December 2024

Appearances:

For the Applicant: CZ Muza Instructed by MN Mahapa Inc. Attorneys

For the First Respondent: M Van der Westhuizen instructed by Gildenhuys Malatji Inc.

[1] The Applicant advised the court that it no longer persists with this prayer as the advice of the Fourth Respondent attending to taxation of the costs relating to the quantum of the matter.