Ncongwane SC and Another v Ehlers Fakude Inc (41189/2017) [2017] ZAGPPHC 680 (29 September 2017)

Ncongwane SC and Another v Ehlers Fakude Inc (41189/2017) [2017] ZAGPPHC 680 (29 September 2017)

The Court found that the summary judgment application by Ncongwane was not properly before it due to the absence of his supporting affidavit, as required by Rule 32(2). In respect of Ngobese, although the respondent's pre-litigation correspondence admitted liability and did not dispute the quantum, the respondent's opposing affidavit raised a bona fide defence by calling for the taxation of the invoices and disputing their liquidity. The Court held that untaxed legal fees, where their reasonableness is disputed, do not constitute a liquidated claim suitable for summary judgment. The respondent's defence was found to be genuine and triable, warranting leave to defend. The application for...

Citation
[2017] ZAGPPHC 680
Parties
Applicant: Abraham Thami Ncongwane SC; Applicant: Isaac Phumlani Ngobese; Respondent: Ehlers Fakude Inc
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
29 September 2017
Case Number
41189/2017
Procedural Posture
Summary Judgment Application / Opposed Application for Summary Judgment
Outcome
Summary judgment application by Ncongwane dismissed; summary judgment application by Ngobese refused; respondent granted leave to defend in the main action.
Judges
T Brenner
Legal Topics
Summary Judgment, Liquidated Claim, Attorney and Client Fees, Taxation of Costs
Civil Procedure Commercial and Corporate Summary Judgment Liquidated Claim Attorney and Client Fees Taxation of Costs

Case Brief

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Parties

Abraham Thami Ncongwane SC

Applicant

Isaac Phumlani Ngobese

Applicant

Ehlers Fakude Inc

Respondent

Procedural Posture

Summary Judgment Application / Opposed Application for Summary Judgment

Legal Issues

  1. 1 Whether the summary judgment application by Ncongwane was properly before the Court in the absence of his supporting affidavit.
  2. 2 Whether Ngobese's claim for payment of legal fees constitutes a liquidated amount justifying summary judgment.
  3. 3 Whether the respondent raised a bona fide defence to the claims, including the need for taxation of invoices and non-joinder of Moosa.

Ratio Decidendi

The Court found that the summary judgment application by Ncongwane was not properly before it due to the absence of his supporting affidavit, as required by Rule 32(2). In respect of Ngobese, although the respondent's pre-litigation correspondence admitted liability and did not dispute the quantum, the respondent's opposing affidavit raised a bona fide defence by calling for the taxation of the invoices and disputing their liquidity. The Court held that untaxed legal fees, where their reasonableness is disputed, do not constitute a liquidated claim suitable for summary judgment. The respondent's defence was found to be genuine and triable, warranting leave to defend. The application for...

Court Disposition

Summary judgment application by Ncongwane dismissed; summary judgment application by Ngobese refused; respondent granted leave to defend in the main action.

Orders

  • The first applicant's application for summary judgment is dismissed.
  • There is no order as to costs in respect of the first applicant.