Webber Wentzel v Essop and Another (20954/2017) [2023] ZAGPJHC 438 (8 May 2023)
- Citation
- [2023] ZAGPJHC 438
- Status
- Judgment
- Jurisdiction
- South Africa
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Wright
- Case number
- 20954/2017
More details
- Court
- South Gauteng High Court, Johannesburg
- Panel
- Wright
- Case number
- 20954/2017
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court found that the first defendant, having received proper notice of the trial date and failing to appear, was in default. The evidence presented by the plaintiff, including affidavits and expert reports, established on a balance of probabilities that the first defendant received bribes totaling R824,950 in exchange for awarding contracts to suppliers. The plaintiff was entitled to disgorgement of these amounts. Furthermore, the expert evidence confirmed that the forensic investigation costs of R1,472,765.17 were fair and reasonable, and thus recoverable from the first defendant. The court accepted all evidence placed before it and granted judgment in favour of the plaintiff.
Court disposition
Judgment granted by default in favour of the plaintiff against the first defendant for the disgorgement of bribe amounts and forensic investigation costs.
Orders
- The first defendant is ordered to pay the plaintiff R824,950 as disgorgement of bribes received.
- The first defendant is ordered to pay the plaintiff R1,472,765.17 as reimbursement for the costs of the forensic investigation.
- Interest and costs of suit are awarded to the plaintiff.
02
Material facts
Parties
Webber Wentzel
Plaintiff Counsel: Adv N Cassim SC; Adv S EbrahimFaizal Essop
DefendantPaul Peter
DefendantAmounts and remedies
- Disgorgement of Bribes: ZAR 824,950
- Forensic Investigation Costs: ZAR 1,472,765.17
03
Procedural history
Posture
Civil Trial / Default Judgment After Settlement With Second Defendant; Trial Proceeds Against First Defendant
04
Questions and positions
Legal issues
- 01
Whether the first defendant received bribes in return for awarding contracts to suppliers.
- 02
Whether the plaintiff is entitled to disgorgement of the bribe amounts from the first defendant.
- 03
Whether the costs of the forensic investigation are fair and reasonable and recoverable from the first defendant.
Party arguments
- Applicant
- The plaintiff alleges that the first defendant, while employed by the plaintiff, awarded contracts to suppliers in exchange for bribes totaling R824,950. The plaintiff claims disgorgement of these amounts and seeks reimbursement for the costs of a forensic investigation conducted by Deloitte and Touche, which amounted to R1,472,765.17. The plaintiff supports its claims with affidavits from Mr Lawson, confirming the wrongdoing and the investigation, and from Mr Hills, attesting to the reasonableness of the investigation costs.
- Respondent
- The first defendant, previously legally represented, did not appear and did not respond to the recusal invitation. The plea on record denies wrongdoing, but no evidence or argument was presented in defence at trial.
05
Court’s reasoning
Legal principles
- 01
Uniform Rules of Court, Rule 31(2)(a)
A court may grant judgment by default where the defendant, having received proper notice, fails to appear and defend the matter.
- 02
Graham v Graham 1950 (1) SA 655 (A)
A party found to have received bribes in breach of fiduciary duty must disgorge the amounts received to the employer.
- 03
Trustees, Estate Whitehead v Dumas 1930 AD 75
Costs reasonably incurred in investigating wrongdoing may be recoverable from the wrongdoer.
06
Ratio, limits and disposition
Ratio decidendi
The court found that the first defendant, having received proper notice of the trial date and failing to appear, was in default. The evidence presented by the plaintiff, including affidavits and expert reports, established on a balance of probabilities that the first defendant received bribes totaling R824,950 in exchange for awarding contracts to suppliers. The plaintiff was entitled to disgorgement of these amounts. Furthermore, the expert evidence confirmed that the forensic investigation costs of R1,472,765.17 were fair and reasonable, and thus recoverable from the first defendant. The court accepted all evidence placed before it and granted judgment in favour of the plaintiff.
Obiter and limits
- The court noted that its personal connections to certain partners at the plaintiff firm did not warrant recusal, as these relationships were not material to the outcome and did not affect impartiality.
- The absence of the first defendant, despite proper notice, justified proceeding on a default basis.
Court disposition
Judgment granted by default in favour of the plaintiff against the first defendant for the disgorgement of bribe amounts and forensic investigation costs.
- The first defendant is ordered to pay the plaintiff R824,950 as disgorgement of bribes received.
- The first defendant is ordered to pay the plaintiff R1,472,765.17 as reimbursement for the costs of the forensic investigation.
- Interest and costs of suit are awarded to the plaintiff.
Source and reliance status
South Gauteng High Court, Johannesburg
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Judgment reading view
Judgment text
The complete available source text.
South Gauteng High Court, Johannesburg
Judgment
IN THE HIGH COURT OF
SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG
CASE NO: 20954/2017
NOT REPORTABLE
NOT OF INTEREST TOOTHER
JUDGES
REVISED
08.05.23
In the matter between:
WEBBER
WENTZEL
PLAINTIFF And
FAIZAL
ESSOP 1st
DEFENDANT
PAUL
PETER 2nd
DEFENDANT
Neutral Citation: Webber Wentzel v Mr Faizal Essop & Another (Case No: 20954/2017) [2023] ZAGPJHC 438 (8 May 2023)
JUDGMENT –
WRIGHT J
WRIGHT J
1. The plaintiff is Webber Wentzel, a firm of attorneys in Johannesburg.
2. The first defendant and the second defendant used to work for the plaintiff.
3. The particulars of claim allege that the defendants, acting together or individually awarded contracts to suppliers in return for bribes. The amount of the bribes is claimed as disgorgement.
4. The first defendant is alleged to have taken a R824 950 bribe or bribes totaling that amount. The second defendant is alleged to have received R459 500 for the same reason.
5. Also claimed is the alleged fair and reasonable costs of a forensic investigation into the matter in the amount of R1 472 765,17.
6. The defendants’ plea denies wrongdoing.
7. The matter has been set down for trial before me today, 8 May 2023.
8. The plaintiff and the second defendant have settled. The trial proceeds against the first defendant.
9. The first defendant was legally represented but not anymore. The plaintiff alleges that he is a fugitive from justice and lives in Australia.
10. Three days ago, when the matter was allocated to me, my clerk sent an email to the plaintiff and the first defendant disclosing that I am personal friends with Johann Scholtz, a partner in the plaintiff firm and that Mr Ed Southey, of Webber Wentzel, had settled my will and is named as executor. Both sides were invited to say whether or not I should recuse myself. The plaintiff suggested that I did not. The first defendant has not replied.
11. In my view, I do not need to recuse myself. Mr Scholtz has nothing to do with the matter. He is one of about 170 partners and in the event of the amounts sought being awarded and recovered the difference to his pocket is minimal. Our friendship is independent of Mr Scholtz’s pocket. Mr Southey and I are friendly towards each other but not friends. He charges a fee for his services. He and I are at arm’s length.
12. The first defendant received notice of set down for today, by way of an email sent by the plaintiff’s attorney.
13. In the absence of the first defendant, the trial proceeds on a default basis.
14. The plaintiff has uploaded to caselines an affidavit by Mr Lawson, general counsel for the plaintiff who confirms the allegations of wrongdoing by the defendants and the bribe or bribes received by first defendant and that the investigation was done by Deloitte and Touche and the fee charged. This affidavit incorporates the expert report of Deloitte and Touche.
15. An affidavit by Mr Hills, a director of PWC provides expert testimony that the fee charged by Deloitte and Touche is fair and reasonable is also uploaded to caselines.
16. I have no need not to accept any of the evidence placed before me.
17. I have been provided with an a draft order by plaintiff’s counsel.
ORDER
Order ito X as amended.
HEARD : 8 May 2023
DELIVERED : 8 May 2023
APPEARANCES
PLAINTIFF Adv N Cassim SC 083 308 3094 ncassim@law.co.za Adv S Ebrahim 084 646 0699 advocatesalimembrahim@gmail.com Webber Wenzel Attorneys 011 530 5000 1st
DEFENDANT No appearance 2nd
DEFENDANT No appearance
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