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Junkeeparsad v Solomon and Another (37003/2019; 37456/2019) [2021] ZAGPJHC 48 (7 May 2021)

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HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, JOHANNESBURG

COMMERCIAL COURT



(1)   REPORTABLE: Electronic reporting only.

(2)   OF INTEREST TO OTHER JUDGES: No.

(3)   REVISED: Yes









Case No: 37003/2019

Case No: 37456/2019


In the matter between:


VISHAL JUNKEEPARSAD                                                                                 Applicant


and


RICHARD ALAN SOLOMON                                                                            First Respondent

ARLETTE MARY MACMANUS                                                                       Second Respondent



In re the matters between


RICHARD ALAN SOLOMON                                                                               First Applicant

ARLETTE MARY MACMANUS                                                                          Second Applicant

 

and

 

VISHAL JUNKEEPARSAD                                                                                    Respondent

 

Case Summary: Practice – Condonation for not filing answering affidavits and extension of time periods within which to file them.



JUDGMENT



MEYER J

[1]        This application is interlocutory to two main applications that have been instituted under case numbers 37003/19 (the Marimuthu application) and 37456/19 (the Isseri application), by two members of the Johannesburg Bar, Adv Richard Alan Solomon SC and Adv Arlette Mary MacManus (who are cited as the first and second applicants in both main applications) against the respondent, Mr Vishal Suresh Junkeeparsad, who is a practising attorney and the sole director of Vishal Junkeeparsad and Company Inc., Umhlanga, Durban, and cited as the respondent in each main application.  The hearing of the main applications has been consolidated.  I refer to the parties in this interlocutory application as they are referred to in the main applications.  The respondent presently seeks condonation for his failure to have filed his answering affidavits in the main applications within the time fixed by an order of this court on 11 February 2020, and that he be granted leave to file such answering affidavits within 15 days of the date of the order made in this interlocutory application (the condonation application).  Both applicants resist the relief which the respondent seeks.

[2]        In the Marimuthu application the first applicant seeks payment in the amount of R1 653 880.00 plus interest and the second applicant seeks payment in the amount of R829 399.50 plus interest from the respondent personally, being outstanding fees owed to them as counsel in respect of legal services they rendered to the respondent’s client, Mr Marimuthu, and members of his family, during the period February to July 2019.  In the Isseri application the first applicant seeks payment in the amount of R1 016 640.85.00 plus interest and the second applicant seeks payment in the amount of R657 642.00 plus interest from the respondent personally, being outstanding fees owed to them as counsel in respect of legal services rendered to the respondent’s client, ‘Dr Isseri and various corporate entities controlled by or through him and of which he is the controlling mind’.

[3]        The respondent has known the first applicant for a continuous period since September 2015, although he had briefed him as counsel in a matter during 2011, and the second applicant from about 2009.  She introduced the respondent to the first applicant.  In his professional capacity as an attorney, the respondent has briefed the applicants extensively to act as counsel in various matters for his clients.  In his founding affidavit in the condonation application, he states:

‘For the past 4-5 years, the Applicants and my offices have been closely involved in several high value commercial litigation matters on behalf of the Firm’s various clients totalling millions of Rand in litigation value.  The Firm was supported by certain business individuals who were flamboyant income earners but also subject to complex legal difficulties.  Furthermore, the Applicants also represented me in my personal matters with success, and despite the animosity that the Applicants presently express against me, the Applicants and I as a team during our tenure enjoyed both a cordial and professional working relationship’.

[4]        Two such clients of the respondent’s firm are Dr Isseri and Mr Marimuthu.  In his founding affidavit the respondent says the following about them:

‘a)  Isseri was a client to the Firm for the period 2011 to 2019, he owns several businesses but primarily trades in step-down medical facilities in Johannesburg and Durban.  The Second Applicant and the Firm have been representing Isseri since 2011 in matters across various provinces and the First Applicant has also represented Isseri since 2016.  Isseri is an exceptionally controversial and flamboyant businessman who is always being litigated against on a regular basis.

b)   Marimuthu was a client to the firm for the period 2014 to 2019, he too is a flamboyant businessman who is involved in road, building and civil construction for various government departments.  The Applicants and the Firm have represented him since 2018.  His primary difficulties lie in multiple claims from SARS over his various businesses and family members.’          

[5]        Rule 27 of the Uniform Rules of Court deals with extension of time and removal of bar and condonation.  Subrules (1) to (3) of r 27 provides as follows:

‘(1)  In the absence of agreement between the parties, the court may upon application on notice and on good cause shown, make an order extending or abridging any time prescribed by these rules or by an order of court or fixed by an order extending or abridging any time for doing any act or taking any step in connection with any proceedings of any nature whatsoever upon such terms as to it seems meet.

(2)  Any such extension may be ordered although the application therefor is not made until after expiry of the time prescribed or fixed, and the court ordering any such extension may make such order as it seems meet as to the recalling, varying or cancelling of the results of the expiry of any time so prescribed or fixed, whether such results flow from the terms of any order or from these rules.

(3)  The court may, on good cause shown, condone any non-compliance with these rules.’

[6]        Subrules (1) and (3) require ‘good cause’ to be shown.  The principles relating to ‘good cause’ are well-established.  It gives the court a wide discretion which must, in principle, be exercised with regards also to the merits of the matter seen as a whole. 

Two principal requirements for the favourable exercise of the court’s discretion have crystallized:  First, an applicant should file an affidavit satisfactorily explaining the delay.  In this regard it has been held that an applicant must at least furnish an explanation of his default sufficiently full to enable the court to understand how it really came about, and to assess his conduct and motives.  A full and reasonable explanation, which covers the whole period of delay must be given.  The application must be bona fide and not made with the intention of delaying the opposite party’s claim.  The second requirement is that the applicant should satisfy the court that he has a bona fide defence.  (Commentary on r 27 of the Uniform Rules of Court in Erasmus Superior Court Practice.)

[7]        Factors which usually weigh with a court in considering an application for condonation include the degree of non-compliance, the explanation therefor and an applicant’s prospects of success on the merits.  (See Ferris and another v Firstrand Bank Ltd 2014 (3) SA 39 (CC) para 10; Federated Employers Fire & General Insurance Company Limited & another v McKenzie 1969 (3) SA 360 (A) at 362F-G; Dengetenge Holdings (Pty) Ltd v Southern Sphere Mining and Development Company Ltd and others [2013] All SA 251 (SCA) para 11.)  In Valor IT v Premier, North West Province and Others 2021 (1) SA 42 (SCA) para 38, Plasket JA said that ‘very weak prospects of success may not offset a full, complete and satisfactory explanation for a delay; while strong merits of success may excuse an inadequate explanation for the delay (to a point).’  A litigant who asks for an indulgence should also act with reasonable promptitude, be scrupulously accurate in his statement to the court, and other neglectful acts in the history of the case are relevant to show his attitude and motives.  (Duncan t/a San Sales v Herbor Investments (Pty) Ltd 1974 (2) SA 214 (T) at 216E-H.)  The question of prejudice to a respondent does not arise if an applicant for condonation fails to establish good cause.  (See Standard General Insurance Co Limited v Eversafe (Pty) Ltd 2000 (3) SA 87 (W) at 95E-F.)  The court will refuse to grant the application where there has been an intentional disregard of the rules of court.  (See Erasmus Superior Court Practice Vol 2 D1-323 and the authorities cited in footnote 7.)

[8]        In Dengetenge, Ponnan JA said this:

‘[12] In Uitenhage Transitional Local Council v South African Revenue Service 2004 (1) SA 292 (SCA) at paragraph 6 this Court stated: “One would have hoped that the many admonitions concerning what is required of an applicant in a condonation application would be trite knowledge among practitioners who are entrusted with the preparation of appeals to this Court: condonation is not to be had merely for the asking; a full, detailed and accurate account of the causes of the delay and their effects must be furnished so as to enable the Court to understand clearly the reasons and to assess the responsibility. It must be obvious that, if the non-compliance is time-related then the date, duration and extent of any obstacle on which reliance is placed must be spelled out.”

[13] What calls for some acceptable explanation is not only the delay in the filing of the heads of argument, but also the delay in seeking condonation. An appellant should, whenever it realises that it has not complied with a rule of court, apply for condonation without delay (Commissioner for Inland Revenue v Burger 1956 (4) SA 446 (A) at 449G-H).’

[9]        And in Commissioner for the South African Revenue Service v Candice-Jean van der Merwe [2015] ZASCA 86 para 19, Ponnan JA stated:

‘In applications of this sort the prospects of success are in general an important, although not decisive, consideration. It has been pointed out (Finbro  Furnishers (Pty) Ltd v Registrar of Deeds, Bloemfontein [1985] ZASCA 71; 1985 (4) SA 773 (A) at 789C) that the court is bound to make an assessment of an applicant’s prospects of success as one of the factors relevant to the exercise of its discretion, unless the cumulative effect of the other relevant factors in the case is such as to render the application for condonation obviously unworthy of consideration. . . . This court has often said that in cases of flagrant breaches of the rules, especially where there is no acceptable explanation therefor, the indulgence of condonation may be refused whatever the merits of the appeal. This applies even where the blame lies solely with the attorney.’

[10]      In Grootboom v National Prosecuting Authority and another 2014 (2) SA 68 (CC), Bosielo AJ said the following:

‘[32]  I need to remind practitioners and litigants that the rules and court’s directions serve a necessary purpose.  Their primary aim is to ensure that the business of our courts is run effectively and efficiently.  Invariably this will lead to the orderly management of our courts’ rolls, which in turn will bring about the expeditious disposal of cases in the most cost-effective manner.  This is particularly important given the ever-increasing costs of litigation, which if left unchecked will make access to justice too expensive.

[33]  Recently this court has been inundated with cases where there has been disregard for its directions.  In its efforts to arrest this unhealthy trend, the court has issued many warnings which have gone largely unheeded.  This year, on 28 March 2013, this court once again expressed its displeasure in eThekwini [eThekwini Municipality v Ingonyama Trust 2013 (5) BCLR 497 (CC) ([2013] ZACC 7] as follows:

“The conduct of litigants in failing to observe rules of this court is unfortunate and should be brought to a halt.  This term alone, in eight of 13 matters set down for hearing, litigants failed to comply with the time limits in the rules and directions issued by the Chief Justice.  It is unacceptable that this is the position in spite of the warnings issued by this court in the past.  In [Van Wyk], this court warned litigants to stop the trend.  The court said:

“There is now a growing trend for litigants in this court to disregard time limits without seeking condonation.  Last term alone, in eight of ten matters, litigants did not comply with the time limits or the directions setting out the time limits.  In some cases litigants either did not apply for condonation at all or if they did, they put up flimsy explanations.  This non-compliance with the time limits or the rules of court resulted in one matter being postponed and the other being struck from the roll.  This is undesirable.  This practice must be stopped in its tracks.”

The statistics referred to above illustrate that the caution was not heeded.  The court cannot continue issuing warnings that are disregarded by litigants.  It must find a way of bringing this unacceptable behaviour to a stop.  One way that readily presents itself is for the court to require proper compliance with the rules and refuse condonation where these requirements are not met.  Compliance must be demanded even in relation to rules regulating applications for condonation.’

[Footnotes omitted.]

[34]  The language used in both Van Wyk and eThekwini is unequivocal.  The warning is expressed in very stern terms.  The picture depicted in the two judgments is disconcerting.  One gets the impression that we have reached a stage where litigants and lawyers disregard the rules and directions issued by the court with monotonous regularity.  In many instances very flimsy explanations are proffered.  In others there is no explanation at all.  The prejudice caused to the court is self-evident.  A message must be sent to litigants that the rules and the court’s directions cannot be disregarded with impunity.’ 

[11]      I now turn to a chronology of the background facts.  There is only one matter in which the applicants acted as counsel for the respondent’s client, Mr Marimuthu, that requires to be mentioned.  That was his personal tax matter which was enrolled before the tax court sitting at the Durban High Court during May 2019.  The matter, according to the respondent, was ‘quite complex’ and because he did not possess the expertise to deal with it, he decided to withdraw as Mr Marimuthu’s attorney of record in that matter.  Mr Marimuthu enquired from him whether the applicants possessed the expertise to assist him in the matter since they were briefed by the respondent’s firm to assist Mr Marimuthu’s other family members in matters against the South African Revenue Service.  The applicants assured the respondent that they possessed of the required expertise to assist Mr Marimuthu in the matter.  It was postponed to June 2019, bacuese Mr Marimuthu was hospitalized for ill health and could not attend the trial during May 2019.

[12]      Once the matter had been postponed, the first applicant suggested the appointment of Ms Jennifer Faber of the law firm Faber Goetz Ellis Austen Inc., since she, according to him, ‘was a seasoned tax practicing attorney from Johannesburg who represented several business socialites in their battles against the South African Receiver of Revenue with success’.  Mr Marimuthu agreed with the proposal and Ms Faber’s appointment in the matter was thereafter secured at the end of May 2019.  The respondent had a discussion with Ms Faber on 31 May 2019, inter alia regarding the payment of counsel’s fees and her own, during which conversation they reached the following agreement as recorded in her email, which she forwarded to the respondent on the same day:

‘Thank you for calling me this morning.  . . .

I confirm that I will advise Counsel to bill you directly for the tax court matter that is being dealt with.  I will bill client directly, which accounts will be submitted to your office for onward transmission to client.’ 

On 3 June 2019, the second applicant sent a WhatsApp message to the respondent, asking him ‘[n]ow that Jenny Faber is on board should Richard [the first applicant] and I bill her?’ to which he replied: ‘Please continue to send all fee notes to us.  I’ve chatted with Jenny and she’s ok with this arrangement.’

[13]      The applicants commenced demanding payment from the respondent of all the outstanding fees on 29 June 2019, and thereafter, in numerous emails.  The respondent, in turn, pressurised Dr Isseri and Mr Marimuthu for payment.  On 22 July 2019, the second applicant, by means of three emails, advised the respondent that the  applicants have ‘downed tools’ in respect of the Isseri matters, the Marimuthu family entity and personal tax matters and the JK Reddy matters, until such time as they were paid all monies due to them.  (The JK Reddy matters are not presently relevant.)

[14]      In response to the applicants’ withdrawal from Mr Marimuthu’s personal tax matter, he, on 28 July 2020, sent Ms Farber a WhatsApp message, stating, inter alia, the following:

‘. . . Jenny please be advised that I’ve never lost faith in the team.  Truth be told, this is the first time that I’m beginning to see light in the matter after the intervention of both your offices and counsel.

SARS as you are aware have their own personal vendettas against my family and myself and I have in the past always been on the back foot until both you and counsel have joined my side.  I thank you and counsel for this.

Further, I want to clear up this issue of another counsel.  I am committed to paying both counsel and yourself for work done on my behalf.

When Arlette and Richard withdrew this past Monday it put me into an immediate tail spin as a lay person. . . . ‘      

[15]      On 31 July 2019, the first applicant wrote to the respondent and recorded a litany of broken promises made by him.  He further stated:

‘I am terribly sorry Vishal that it has gotten to the stage but the failure by you to put into place any proposal as to the manner in which our fees will be paid leaves us no choice but to advise the Bar Council accordingly.’

The applicants caused the respondent to be placed on the Bar Council’s defaulters list at the beginning of August 2019, and his name was never removed from the defaulters list to date.  On 12 August 2019, the Bar Council granted the applicants permission to sue the respondent in order to recover the outstanding fees owing to them.  The Bar Council also granted the applicants permission to act on behalf of one of the Respondent’s clients, Mr Siva Naidoo and his son, subject to their fees being paid ‘cash on brief’, because the applicants had been involved in litigation for Mr Naidoo since 2015, and he would have been gravely prejudiced by being obliged to employ new counsel. 

[16]      On 12 August 2019, the respondent offered to liquidate his indebtedness to the applicants in the sum of R300 000 per month pending the outcome of the main applications which the applicants were going to institute against him.  On 26 August 2019, the second applicant addressed correspondence to the respondent in response to the offer to liquidate his indebtedness to them, and recorded the following:

‘We record that we have been granted permission by the Society of Advocates to issue proceedings against you.  We have permission to continue to work for you in regard to other matters where we are previously briefed subject to the proviso that we may only accept briefs from your firm on a cash on brief basis.

In regard to the offer of R300 000 a month, to settle the outstanding arrears, we will accept your offer, but record that it is obviously unacceptable for us to wait so long for us to be repaid fees which now run into millions of rand.

This acceptance however is subject to the following:-

1.    Interest at the legal rate . . .

2.    . . .

3.    We retain and reserve the right to forthwith issue proceedings against you for the outstanding fees.  In this regard we have prepared the applications for a money judgment against you for Timmy’s [Mr Marimuthu’s] fees as well as Doc’s [Dr Isseri’s] which will be served on you shortly;

4.    In such application proceedings you will be obliged to take all steps necessary to join both Timmy and Doc to the proceedings in order that the proceedings can be managed to its successful conclusion.  In this regard we confirm that you will be provided with the necessary Rule 13 applications to join both Timmy and Doc which must be launched on an urgent basis to convert the main application into an urgent application;

5.    We will review this current payment situation at the end of October 2019. . . . ‘

[17]      The respondent’s promise of payment was continually raised with him and demands made of him to comply therewith.  On 16 September 2019, the second applicant sent a WhatsApp message to the respondent, stating:

‘Hi V.  When will you begin making payment of the promised R300k to Richard and I?  Richard keeps asking me to ask you.’

The respondent responded that he would contact the second applicant the next day.  He, according to the second applicant, did not take issue with her message.  On 2 October 2019, the first applicant addressed the following email to the respondent:

‘2.  I know you have largely been communicating with Arlette on these matters but I feel I must address you directly at least in response to the proposal that you made in your email under reply.

3.   You will recall that you made the following undertaking (pending the outcome of the applications that were to be brought to try and recover the fees from Mr Marimuthu and Dr. Isseri):

      “We are able to raise the sum of R300 000 (Three Hundred Thousand Rand) per month towards both your outstanding fees payable on the last day of every month commencing with effect from 31 August 2019 until such time as the total indebtedness has been settled in full.”

4.   Notwithstanding this undertaking, we have not received the sum of R300 000.00 at the end of August or September 2019 as promised.

5.   The non-payment of at least such amounts has further compounded both our financial predicaments.

6.   Could you kindly revert to me as to when these payments will be made.’

The respondent failed to respond to this email correspondence.

[18]      On 22 October 2019, Dr Isseri sent an email to the respondent, stating:

‘I have gone through both invoices from Advocate Richard Solomon and Advocate Arlette MacManus and I was quite shocked when I saw their figures.

I was under the impression that it was not as much as that after seeing a message on your cell phone from Adv Arlette MacManus, which stated that I owed her approximately R120 000.00.

However, there is no need for me to complain with their bills because their work was done diligently.

I appreciate their advice and all the advice you have given me regarding these matters.

I am currently working on a payment plan that is both viable to the advocates and myself.  However, I cannot at this stage give you a figure.  I would endeavour to make a payment from the end of this month.

I humbly apologise for the inconvenience caused to both Adv Richard Solomon, Adv Arlette MacManus and yourself.’

[19]      During October 2019, the applicants discussed the possibility with the respondent of having their fees assessed by the Bar Council and they prepared a draft letter for him to dispatch to the Bar Council, calling upon such assessment.  The respondent subsequently advised them that it was not necessary, as there was simply no dispute in regard to the rendering of the services as well as the quantum and he accordingly did not send the letter.    

[20]      The Marimuthu application was sent by email to the respondent on 23 October 2019 and the Isseri application on 28 October 2019.  The main applications were subsequently also served on him in November 2019.  The second applicant immediately commenced requesting the respondent for information to draft the third party notices for the joinder of Mr Marimuthu and Dr Isseri on behalf of the respondent. 

[21]      On 25 October 2019, the respondent launched an urgent application in the KwaZulu-Natal Division of the High Court, Durban for the provisional sequestration of the estate of Mr Marimuthu (the sequestration application).  An order placing his estate under provisional sequestration was granted on 31 October 2019.  The respondent brought the sequestration application in the capacity as a creditor of Mr Marimuthu with a liquidated claim against him in the amount of R2 543 999.50, which claim comprised the outstanding fees owing to the applicants by the respondent in respect of Mr Marimuthu’s matters.    

[22]      In establishing his claim in the sequestration application, the respondent stated, inter alia, the following in his founding affidavit:

‘7.1.  During approximately 2014/2015, the Respondent, a well known businessman, consulted with me at my offices and mandated me to act on his behalf in instituting various litigation on his behalf and in defending other matters for him.

7.2.   In particular, and on his instructions I briefed Adv Richard Solomon SC, from the Johannesburg Bar and Adv Arlette McManus as his junior to attend to the Respondent’s matters.

7.3.   The Respondent has paid some of the fees to both myself and the advocates but has failed to pay the remainder of fees.  He is still currently indebted to me for the above amount.

7.4.   The above indebted amount, is inclusive of fees owing to the advocates, who have now sued me for payment of such monies as I am now held responsible.  I attach hereto a copy of the application papers, marked annexure “VJ1”.

7.5.   I have sent various correspondence to the Respondent demanding payment but to no avail.  I have attached hereto the latest demand sent to him dated the 11th October 2019 attached hereto marked annexure “VJ2”.

7.6    The contents of VJ2 are self explanatory, except to emphasise the following extract therefrom.  “Unless we have payment in the full sum of R2 543 999.00 ……….compromising of both senior and junior advocates fees owing in respect of all your and your various family entity matters by the close of business on Monday 14th October 2019, our offices will have no alternative but to launch proceedings in the High Court for your sequestration …….”

7.7.   . . .

7.8.   Shortly thereafter he sent me another email, asking for an indulgence and promising to pay me.  He informed me that he was out of the country and will contact me when back.  . . .

7.9.   When the Respondent returned, on or about the 23 October, I contacted him urgently via telephone and informed him that both advocates had instituted an application against me the previous day, for payment and that this was now very serious and he needs to stop messing me about and pay me.  . . .

7.10. I then emailed him a copy of the application papers on 23 October and demanded that he make payment.

7.11. Of great concern to me was the latest email that he sent, after I emailed him a copy of VJ1.  In this email, although he unequivocally accepted liability and the indebtedness to me, he stated that he was in the process of disposing of assets and will pay me once he got the monies.  . . .

7.12. It is significant to point out that the Respondent, states in VJ5, “I accept that I have to pay you this amount, I don’t dispute it, I will pay you but not just now as I don’t have the money to pay”.  This clearly demonstrates his inability to pay the debt.

         . . .   

7.16. I suspect that the Respondent’s conduct is motivated by the outcome of his SARS matter, which I am informed he was not successful.

7.17. Based on the aforesaid facts, the Respondent is currently indebted to me in an amount of R2 543 999.50, which he does not dispute.  I attach hereto a copy of the breakdown that I sent to him, which he accepts as correct in VJ5.’

[23]      The breakdown of Mr Marimuthu’s indebtedness to the respondent in the amount of R2 543 999.50, as set out in annexure ‘VJ5’ to his founding affidavit in the sequestration application, is a total amount of R829 399.50 owing to the second applicant and a total amount of R1 714 600.00 owing to the first applicant in fees for professional services rendered by them in respect of the matters of Mr Marimuthu and members of his family in which they were briefed, including their fees in respect of Mr Marimuthu’s personal tax affairs matter.

[24]      According to the respondent, he subsequently advised the second applicant ‘that the assets which the Applicants eventually seek are in the names of Marimuthu’s children and trust and that [they] should consider joining them instead of Marimuthu’s estate in which SARS naturally are a preferred creditor’.  He states that ‘[t]he Second Applicant thereafter discussed [his] suggestion with the First Applicant and later reverted to [him] that the First Applicant was also in agreement with [his] suggestion’.

[25]      On 1 November 2019, Dr Isseri terminated the respondent’s mandate in respect of all matters that his firm was on record.  In mid-November his firm’s mandate in respect of the Marimuthu matters was also terminated.  On 28 November 2019, in an email exchange between the respondent and the second applicant, he informed her that he unsuccessfully tried three different firms of attorneys in Johannesburg to represent him in the main applications and he requested her to ask the first applicant if his uncle’s partner, Mr Anthony Millar from Norman Berger Attorneys (who had represented him in another matter), would be willing to act on his behalf.  The second applicant replied that it was a good idea.  

[26]      On 13 December 2019, the second applicant addressed an email to the respondent, advising him that ‘[u]nfortunately [they] have not been able to make any headway in regard to these applications’, and, ‘in the circumstances’ he must appoint his own attorney whereafter their ‘attorney of record may liaise with [his] attorney of record regarding the future conduct of the matter’.  He failed to respond to the email or to appoint his own attorneys or to file notices of intention to oppose.  She addressed another email to him on 29 December 2019, requesting that he forward his notices of intention to oppose to her, if he intended to oppose the main applications.  Thereafter, on 6 January 2020, she addressed yet another email to him, calling again upon him to send his notices of intention to oppose to her, if he intended opposing the main applications.  He also failed to respond to these email or to file his notices of intention to oppose the main applications or to send them to the second applicant.

[27]      Given the failure of the respondent to have filed notices of intention to oppose, the main applications were then set down for hearing on 11 February 2020.  The day before the hearing, on 10 February 2020, he filed notices of intention to oppose the main applications.  He also filed notices in terms of r 6(5)(d)(iii) of the Uniform Rules of Court.  Subrule 6(5)(d) provides that any person opposing the grant of an order sought in a notice of motion shall within the time stated in the notice give the applicant notice in writing of his intention to oppose the application and, within 15 days of notifying the applicant of his intention to oppose the application, deliver his answering affidavit, if any.  If he intends to raise any question of law only, he shall deliver notice of his intention to do so within 15 days of notifying the applicant of his intention to oppose the application ‘setting forth such question’.  The question setting forth in each of the respondent’s notices in terms of r 6(5)(d)(iii) is this:

‘The question of law that the Honourable Court will be called upon to determine at the hearing of the above application is whether or not, the Respondent in his personal capacity can be sued and a judgment entered against his personal name, alternatively can the Respondent be held directly and personally liable for the alleged obligations of a distinct and registered professional firm in the place of and without suing the said professional firm.’

[28]      At the hearing of the two main applications on 11 February 2020, the respondent’s counsel applied for a postponement and for permission to file answering affidavits within 15 court days.  The applicants’ counsel opposed the relief claimed on behalf of the respondent on the basis that he had failed to file his answering affidavits in accordance with the time periods prescribed by the Uniform Rules of Court.  The court granted the respondent 15 court days to file his answering affidavits, in other words on or before 3 March 2020.  However, the respondent failed to file answering affidavits, either within the 15 court days fixed in terms of the order, or at all.

[29]      On 25 March 2020, the main applications were transferred to the commercial court of this division by Unterhalter J, and their adjudication in the commercial court was allocated to me.   The reason why Unterhalter J permitted the transfer of the main applications to the commercial court appears from his email addressed to the Office of the Deputy Judge President, which reads as follows:

‘This is a claim brought on motion by two advocates against an attorney for the payment of fees.  The defence to be raised by the respondent is that the applicants were in privity with the clients and not with the attorney, and the respondent may seek to issue third party notices to the clients in the event that the respondent is found to be in privity with the applicants.  The question of privity and the rendering of professional services by advocates has not yet come before the commercial court.  On this basis I do refer the matter to the commercial court.’

[30]      According to the respondent, the applicants’ attorney called him in the morning on 25 March 2020 when they, on a without prejudice basis, discussed time lines for the joinder applications which the applicants were prepared to draft subject to him providing them with information relating to Mr Marimuthu and Dr Isseri and subject to the respondent obtaining legal advice on the joinder applications before he commits himself to such applications.  He also broached the question with the applicants’ attorney as to what would happen if there were insufficient assets capable of attachment owned by Dr Isseri and Mr Marimuthu, and her immediate response was that he would be liable to pay to the applicants the judgment debt jointly and severally, the one paying the other to be absolved.  He states that he ‘became very uncomfortable with this issue as [he] was not indebted to the Applicants’.   

[31]      On 26 March 2020, a meeting was convened before Unterhalter J.  The respondent raised the issue of joining certain parties and approached the applicants’ attorney in that regard, resulting in an agreement being reached on the manner in which the applications would be dealt with going forward.

[32]      Following the meeting the following correspondence was exchanged between the attorney acting for the applicants and the respondent.  On 27 March 2020, the applicants’ attorney wrote to the respondent, stating:

‘Following the case management meeting with Judge Unterhalter and the recent appointment of Justice Meyer to adjudicate the two applications as commercial court matters, I agree that we reached agreement on the following issues:

1.   You will provide our offices with all of the family as well as the trusts’ details in respect of the Marimuthu outstanding fees matter on or by Tuesday, 31 March 2020 for insertion in the joinder affidavit.

2.   You will provide our offices with the details pertaining to the different corporate entities of Dr Isseri for insertion in the joinder affidavit on or by Tuesday, 31 March 2020.

3.   You will ensure that the joinder applications are launched on or by 20 April 2020 and served on all the other respondents on or by 23 April 2020.

4.   Our respective offices will contact Justice Meyer on or by 30 April 2020 on the way forward in regard to the filing of answering affidavits, in the event of opposition by the parties sought to be joined.

5.   You will co-operate in arranging the earliest possible dates for the launch of the joinder applications and the setting down thereof before Justice Meyer.

In the event that the joinder applications are not launched on the date agreed to for the launch of the joinder applications, or any other date agreed to by the parties in writing, then and in such event, the matters will be dealt with again on an expedited basis, and on the basis that there is only one issue in the matter, that pertaining to my clients’ ability to pursue you personally, as a point of law.  In this regard you have failed to file an opposing affidavit, which you were obliged to do on or by 3 March 2020, as directed by the Judge on 11 February 2020, which failure is in any event consonant with your failure at any stage to raise any dispute in regard to the fees charged by my clients, you being satisfied at all material times with the quantum thereof as well as the fact that those services were rendered.

The entire arrangement outlined hereinabove does not constitute a novation or compromise of any of my clients’ claims against you: those claims remain live and pending.

Should we not hear from you on or by 31 March 2020 disputing any of the aforementioned terms that have been agreed to between us, we shall assume that you are in agreement with the recordal set out hereinabove.’

[33]      On 31 March 2020, the respondent responded, thus:

‘At the outset, my failure to respond to each and every allegation as contained in the applications and more specifically your e-mail below must not be construed as an admission of any of the contents thereof, my rights to respond to same more fully at the appropriate time and the appropriate forum remain fully reserved.

Kindly note that as per my telephonic discussions with you on the 26th March 2020 prior to the commencement of the teleconference with Judge Unterhalter coupled with my submissions made to Judge Unterhalter during the teleconference, and the remarks made by Judge Unterhalter consequently, I do intend on obtaining legal advice to enable me to fully consider my position with regards to both of the applications before Court and as to whether I should file further affidavits and/or joinder applications in either or both of the applications as the case may be.

Unfortunately, and due to the COVID-19 lockdown which commenced on midnight, 26th March 2020, and which is due to be uplifted on midnight 16th April 2020, I will only be in a position to consult with counsel at the earliest on 28th April 2020 this being in light of the fact that I have a week-long trial pertaining to a personal matter of mine (and which trial matter both your clients are fully aware of) commencing on the 20th April 2020 and ceasing on the 24th April 2020, and consequently, I will be involved in trial preparation on the 17th April 2020.

I will however revert to you by latest close of business on 29th April 2020 once I have obtained legal advice and fully considered my position as aforesaid.’

[34]      On 3 April 2020, the applicants’ attorney responded thus:

‘We note with disappointment your reneging on the oral agreement that we reached on the manner in which the matters to be dealt with going forward.

What is more noteworthy is your failure to identify which parts of my email confirming the terms of our agreement you now dispute.  You have contented yourself with bald denials in circumstances where you are an experienced litigation attorney and are more than well equipped to deal with allegations which you now purport to dispute – more so in your own matter!

Be that as it may, and in light thereof, we shall make the necessary approach to the Judge who has been appointed as the case manager in order to have both matters set down as a consolidated hearing, and on an expedited basis.’

The respondent did not respond to this communication from the applicants’ attorney.

[35]      On 21 April 2020, the applicants’ attorney addressed correspondence to my office, briefly setting out the procedural background to the matter, recording that ‘[o]nly one defence has been raised in both matters, a legal point pertaining to the entitlement of the applicants to institute proceedings against the respondent in his personal capacity as opposed to against his firm’, and requesting that a case management meeting be convened via Zoom or MS Teams for a directive as to when the main applications may be set down for a consolidated hearing as well as dates for the filing of heads of argument by both parties.  On 20 May 2020, my registrar advised the parties that I was available to meet during the week of 15 June 2020 in the mornings between 9.00 – 10.00 or afternoons between 13.00 and 14.00, that the meeting could be set up via Zoom or MS Teams and whether the parties could agree on a date for the hearing of the main applications, and revert to her.

[36]      The applicants’ attorney then addressed correspondence to the respondent on 26 May 2020, asking when he would be available to attend a meeting via Zoom with me, enclosing the applicants’ practice note and heads of argument, recording that ‘you would be entitled to file your heads of argument within 10 working days thereafter, which were taken to 9 June 2020’ and that they ‘look forward to receiving same within the timeframe’.  The respondent failed to respond and he failed to file his heads of argument on the point of law raised in his notices in terms of r 6(5)(d)(iii), which he was obliged to do within ten days after he had received the applicants’ heads of argument.  In fact, to date, he has failed to file his heads of argument and practice note in respect of the point of law raised by him.

[37]      On 2 June 2020, the applicants’ attorney forwarded yet another email to the respondent in order to arrange a date for the hearing of the main applications, as requested by me through my registrar, advising him that if he fails to respond on or before close of business on 3 June 2020, she would advise my registrar of his failure and or refusal to revert to her on his availability and request that I set a time when I am available to conduct the meeting via Zoom.  The respondent also failed to respond to this email.  On 1 July 2020, the applicants’ attorney advised my registrar accordingly.  She concluded by stating:

‘The matter is accordingly ripe for hearing and a Case Management meeting is no longer required.

All that remains is for your Judge to kindly allocate a date for the hearing of the applications which we believe will not endure longer that 45 minutes as well as to direct the respondent to file heads of argument within 10 days from the date of direction, in circumstances where the applicants filed their heads of argument on 26 May 2020.’

[38]      I nevertheless convened a case management meeting to be held on 16 July 2020 in order to arrange a suitable date for the consolidated hearing of the main applications with the parties, and to place the respondent on terms in respect of the filing of his heads argument and practice note.  The day before the scheduled meeting, the respondent appointed attorneys.  At the case management meeting, the respondent’s counsel requested time to file answering affidavits in the main applications.  I directed that the present application for condonation and the extension of the time period within which the respondent’s answering affidavits were to have been filed in terms of the 11 February 2020 court order, be brought on constrained time periods.  On 21 July 2020, the respondent launched the present condonation application.

[39]      I now turn to the explanation proffered by the respondent for his default in filing answering affidavits in the main applications since 11 February 2020, when he was ordered by this court to file them within fifteen days of the date of the order, or at any time thereafter.  The enquiry into the delay must be viewed through the lens of a respondent who is an experienced litigation attorney, having practiced for 17 years.  

[40]      The respondent explains his failure to have filed answering affidavits within 15 days after the court has ordered him to do so on 11 February 2020, inter alia, as follows:

‘I have not done so.  I have, since the order had been granted, filed a Notice in terms of Rule 6 annexed hereto marked “VSJ3”, and had intended for the matter to be dealt with on the basis of such “point of law”, however, and due to certain events which I will elaborate on the hereinunder, and as expressed to the other parties in this matter, I have taken independent advice from a new legal team and have now elected to file an Affidavit to place my version of events before this Honourable Court so as to properly ventilate the matter and allow for a more equitable determination of the issues in this matter.’

[41]      However, the respondent’s notices in terms of r 6(5)(d)(iii) show that they were served on the applicants’ attorneys of record on 10 February 2020, and that is also the applicants’ version, namely that the respondent filed his notices of intention to oppose as well as the point of law notices the day before the hearing, which was on 11 February 2020.  It remains unexplained, therefore, why the applicant applied for a postponement at the hearing on 11 February 2020, and for the indulgence to file answering affidavits, which relief sought by the respondent was vehemently opposed by the applicants, if his intention at that stage was for ‘the matter to be dealt with on the basis of such “point of law”’.  The ineluctable inference is that the respondent intentionally disregarded the court order of 11 February 2020 for the simple reason that he had no intention of opposing the claims of the applicants on the basis that he now seeks to do.  This is apparent from the fact that his only opposition to the main applications ab initio was to the effect that his firm, and not he personally, was liable for the applicants’ fees.  This meant that the only issue to be decided was the identity of the party liable for the debt without any debate about the debt itself.     

[42]      The respondent continues to state that on 26 March 2020, the country was placed under lockdown as a result of the Covid-19 pandemic, which ‘prevented [him] from accessing any legal advice as legal professionals were not deemed to be essential service providers’.  He states that ‘legal professionals were only issued permits to travel under extremely limited circumstances from the 5th May 2020 onwards’ and that ‘[t]his situation only eased up a little when Level 3 status was announced on 24 May 2020 effective 1 June 2020’.  He states that he attempted to secure counsel to represent him early in June, but most of them were not willing to take on or give advice with regards to a counsel fee dispute and a few of them that were willing were in self-imposed quarantine.  It was thus difficult for him to confirm any date for the pre-trial hearing as he was not comfortable to proceed unrepresented.  During the latter part of June 2020, he became unwell.  He is susceptible to chronic pneumonia in the winter, and because of the rife spreading of covid-19 infections, he took the appropriate precaution to self-quarantine.  He was only in a position to return to work on 13 June 2020, ‘and thereafter located [his] current attorney of record and consulted with counsel where he was given advice that [his] Firm ought to withdraw from the matter as it could pose practical difficulties in the litigation going forward’.  He was advised by counsel to file an answering affidavit ‘so as to plead over the Rule 6 notice’.             

[43]      The respondent has evidently failed to provide a full and reasonable explanation which covers the entire period of delay.  In vague terms he explains that he could not obtain the services of any counsel to represent him, that lockdown ensued, that counsel who were prepared to assist him were self-quarantining, and that he contracted pneumonia during June 2020 and self-quarantined as a result.  However, firstly, the 15 days within which he was obliged to file his answering affidavit expired on 3 March 2020, which was several weeks before the national lockdown commenced at midnight on 26 March 2020, and, secondly, the legal profession has been fully up and running since 4 May 2020, via platforms such as MS Teams and Zoom and the like.  Even under strict lockdown the legal profession did not come to a complete halt; consultations between legal representatives and clients were held via those platforms and even telephonically, and court hearings were similarly held via those electronic platforms.  But no explanation is proffered by the respondent why he could not instruct counsel telephonically and hold the required consultations with counsel via those electronic platforms.  The respondent is an experienced commercial litigation attorney, on his own version, who would be well aware of the consequences of failing to abide by an order of court, an order which he sought on 11 February 2020, and an order which was vigorously opposed by the applicants at the hearing thereof.  Furthermore, he failed to explain why he failed to file his application for condonation, without delay, when it became apparent to him that he would have to apply for condonation.

[44]      A party is not given unlimited time within which to determine whether or not to file an opposing affidavit in a matter.  This would bring the administration of justice to a halt; justice delayed is justice denied.  The respondent failed to obtain legal advice since October 2019, when he received the main applications and he only sought legal advice the day before the case management meeting on 16 July 2020, which had been convened only for the purpose of arranging dates for the filing of the respondent’s heads of argument and for the hearing of the main applications.  Furthermore, the respondent, being an experienced litigation attorney, would have known himself whether or not he has defences other than the point of law raised by him, and he certainly did not need counsel to advise him on that.  He, as litigation attorneys do, could have drafted his own answering affidavits and send them to counsel to settle, and to advise him on his prospects of success.  Yet, again he fails to explain why he was unable to do so.   The respondent evidently failed to act with reasonable promptitude.      

[45]      Other neglectful acts by the respondent in the history of the case, which are also relevant, are that he failed to file his notices of intention to oppose timeously; he filed them a day before the main applications were set-down for hearing on 11 February 2020.  He was repeatedly requested, in December 2019 and January 2020, to file them if he intended opposing the relief claimed against him.  He failed to file heads of argument on the point of law raised in his notices in terms of r 6(5)(d)(iii), which he was obliged to do within ten days after he had received the applicants’ heads of argument on 26 May 2020.  He failed to react to my registrar’s notification that I was available for a meeting (as the applicant was entitled to request in terms of this division’s commercial court practice), either via Zoom or MS Teams during the week of 15 June 2020 in the mornings between 9.00 – 10.00 or afternoons between 13.00 and 14.00.

[46]      In all the circumstances, the ineluctable inference is that there has been an intentional disregard by the respondent of the rules and practice of this court, and of the order granted on 11 February 2020.  Furthermore, having regard to the timeline of events, it appears that every step the respondent has taken was in order to delay the prosecution of the proceedings.  I am thus unable to hold that the application for condonation is bona fide.  (See TLE (Pty) Ltd v The Master of the High Court 2012 (2) SA 502 (GSJ) para 12.)  The explanation proffered by the respondent displays ‘an obvious lack of attention to matters that plainly called for an explanation and evidences a failure to fully and candidly enlighten the court, as an applicant in a matter such as this was obliged to do’.  It follows ‘that the explanation proffered is woefully inadequate and I thus find it impossible to hold that the delay’ in filing his answering affidavits in the main applications and the delay in bringing this condonation application have ‘been explained in a manner which is even remotely satisfactory’.  (SARS v Van der Merwe [2015] 3 All SA 387 (SCA) para 12.)  The non-observance of the rules and practice of this court, and of the court order made on 11 February 2020, have been flagrant and gross, without the respondent proffering an acceptable explanation therefor, which justifies the refusal of the indulgence of condonation whatever the merits of the defences he now wishes to raise.  (See Beweging vir Christelik-Volkseie Onderwys and others v Minister of Education and others [2012] 2 All SA 462 (SCA), para 26.),

[47]      I nevertheless consider the respondent’s prospects of success with the defences he raises in this condonation application.  There are several of them:  First, that ‘the Applicants’ income (paid through the Firm from Isseri and Marimuthu) was wholly conditional to the Firm receiving payment from Isseri and Marimuthu’.  Second, that each main application is a ruse and that both are contrived proceedings.  Third, that his offer made on 12 August 2019 to liquidate his indebtedness to the applicants in the sum of R300 000 per month ‘was a hollow document created to placate the Bar Council into allowing the Applicants to continue working with the Firm’.  Fourth, that his firm’s role ‘was purely a facilitator of payment from Marimuthu to the Applicants in Marimuthu’s personal tax matter’.  Fifth, that he had discovered discrepancies in the applicants’ billing and that it appears that certain amounts claimed by them are not totally correct and that a ‘a proper opportunity [given to him] to investigate all matters retrospectively would ensure that all discrepancies are catered for and briskly resolved’.  Sixth, that this court lacks jurisdiction to determine the main applications since the respondent’s firm conducts business from Durban and the bulk of the work undertaken by the applicants stems from clients residing in in KwaZulu-Natal and were undertaken there.

[48]      It is convenient to first dispose of the respondent’s unmeritorious jurisdiction defence.  On his own version he agreed to the launch of the main applications in Johannesburg.  Moreover, he acquiesced to this court’s jurisdiction by his conduct in filing notices in terms of r 6(5)(d)(iii), in which notices the question of jurisdiction were not raised.  In so doing, he submitted to this court’s jurisdiction.  The respondent, as was said by Wallis JA in Bonguli and another v Standard Bank of South Africa Ltd 2012 (5) SA 202 (SCA) para 23, in putting forth the point of law for adjudication by this court:

‘. . . invoked the jurisdiction of the trial court for relief which was, as prayed for by him, to dismiss the respondent’s application for summary judgment with attorney and client costs and grant him leave to defend the respondent’s action on its merits.  On the facts of this case we therefore conclude that by not contesting the competence of the court below to grant summary judgment, the second appellant, and therefore RTC by his conduct, unequivocally submitted to its jurisdiction’

[49]      Regarding the respondent’s defence that the applicants’ entitlement to the payment of their fees in respect of their professional services rendered to the respondent’s clients, Dr Isseri and Mr Marimuthu, was wholly conditional on the respondent’s firm receiving payment from them, he states: 

‘To put it more succinctly, the Applicants were fully aware of the Isseri and Marimuthu’s cash-flow position and without hesitation both understood and undertook the risk to render services running into hundreds of thousands of Rand on behalf of Isseri and Marimuthu.’

[50]      The respondent further states that the applicants and he had a teleconference on 7 August 2019, when the first applicant ‘introduced the idea of the main applications as a method of recovering their fees from the defaulting clients’.  He states that he ‘was initially reluctant to agree to his proposal but after having thought of it agreed to do so on the next morning’.  He states that each ‘main application, as agreed to between the Applicants and [himself], is with regret a contrived proceeding which was devised and launched by the Applicants purely with one purpose which was to ensure that they secured a money judgment against two of the clients who had unilaterally elected to hold back monies  that the Applicants had been claiming, viz, Isseri and Marimuthu (in separate claims and applications) for fees allegedly due to the Applicants by the said Isseri and Marimuthu’.  He states that what ‘was intended at the time that the prospect of the launching of the applications were discussed with [him], was that it was intended that as soon as the applications were served on [him], [he] would then as the Firm, consent to orders joining the said Isseri and Marimuthu to such applications’ and the ‘Applicants assured [him] that they would draw up the joinder applications on [his] behalf, at no charge’.  This, according to the respondent, ‘was done on the express verbal understanding between the Applicants and [him] that the Firm would be indemnified from the judgment and that they would then only seek relief against Isseri and Marimuthu and that no relief would be sought against [his] Firm’.  He further states that ‘it was only until recently when the Applicants refused to record that [he] would be exonerated [that] he became aware that the Applicants had shifted their focus from collecting their fees from Isseri and Marimuthu to collecting their fees from [him] in [his] personal capacity thereby seeking a money judgment against [his] name’.

[51]      In support of the respondent’s defence that the offer made by him on 12 August 2019 to liquidate his indebtedness to the applicants in the sum of R300 000 per month was ‘a hollow document created to placate the Bar Council’ into allowing the applicants to continue working for the respondent’s firm, he states that once he had communicated his decision to proceed with the ruse to the first applicant on 8 August 2019, he requested the respondent to send across the proposal from the firm so that the Bar Council could be notified of the proposal.  The respondent expressed his concern with the first applicant’s proposal, but the first applicant ‘re-iterated that the proposal was purely to placate the Bar Council and nothing further than that’.  He therefore sent the proposal to the first applicant in the morning on 12 August 2019.  The ‘proposal’, so the respondent states, ‘was of no legal binding effect on both the Firm and/or [his] name’.  Because the first applicant had told him what the purpose of the document was, he did not respond to the second applicant’s email dated 26 August, to which I have referred to in paragraph 16 supra.  Also, according to the respondent, when he spoke to the second applicant the next day after she had sent him the WhatsApp message on 16 September 2019, to which I have referred in para 17 supra, he ‘was told the message was purely a reporting medium for the Bar Council to show that the Applicants were following up with the proposal from the Firm’. He states that he ‘saw no harm as the proposal dated 12 August 2012 was a hollow and non-binding one’.

[52]      The respondent’s defence that the main applications should be suspended in order for him to investigate all the applicants’ invoices sent to his firm, is founded on the following factual averments made by the respondent:  During February 2020, Dr Isseri laid a complaint against the respondent’s firm with the Legal Practice Council (LPC) alleging that the respondent through his firm had stolen an amount of approximately R32 million from him and his various companies during the period 2015-2016, which the respondent vehemently denies.  An inspection was thereafter conducted by members of the LPC.  The respondent was required to furnish them sight of all relevant files and financial ledgers.  He then employed a chartered accountant to re-audit Dr Isseri’s entire account, comparing the work done for Dr Isseri and his various entities vis-à-vis the money he had paid the respondent’s firm.  The chartered accountant’s finding was that Dr Isseri and his various entities are indebted to the respondent’s firm, excluding the amounts owing to the applicants, in the amount of approximately R7 million.  Dr Isseri also alleged that he had never instructed the respondent to engage counsel in his matters and that his firm was not authorised to pay the applicants.   On 28 May 2020, Dr Isseri’s new attorney, Perumal’s Attorneys, served further affidavits on the respondent relating to the LPC complaint, in which allegations of overreaching, unjustified billing times for work done, and a conspiracy to defraud him were made against the respondent and the applicants. 

[53]      The respondent vehemently denies Dr Isseri’s allegations. According to him, Dr Isseri’s ‘sole motivation for the complaint is to avoid paying the Applicants and to demur [the respondent] into not testifying against him in pending criminal proceedings where it is alleged that Isseri’s main entity defrauded the Workmen’s Compensation Commission to the tune of R35 million’.  However, the respondent also states that he had ‘discovered discrepancies in the applicants’ billing and that it appears that certain amounts claimed by them are not totally correct and that a ‘a proper opportunity [given to him] to investigate all matters retrospectively would ensure that all discrepancies are catered for and briskly resolved’. 

[54]      The defences that payment of the applicants’ fees was conditional on the respondent’s firm receiving payment from its clients, Mr Marimuthu and Dr Isseri, that each main application is a ruse and that they are contrived proceedings, and that the respondent’s firm’s role was merely that of facilitating payment from Mr Marimuthu to the applicants in Mr Marimuthu’s personal tax matter, are in conflict the respondent’s version under oath in his founding affidavit in the sequestration application, to which I have referred in paragraphs 21-23 supra.  The sequestration application only related to the estate of Mr Marimuthu, but the respondent does not suggest that the applicants in respect of payment of their fees distinguished between the professional services rendered by them to Mr Marimuthu and those rendered to Dr Isseri.  His defence is simply that payment of the fees earned by them from professional services they rendered to his clients, Dr Isseri and Mr Marimuthu, ‘was wholly conditional to the Firm receiving payment from Isseri and Marimuthu’.  Furthermore, his liquidated claim to establish his locus standi in the sequestration application, included the fees Mr Marimuthu owes him, and he in turn to the applicants, in respect of the professional services they rendered in respect of Mr Marimuthu’s personal tax matter.    

[55]     All his defences are now raised for the first time in the respondent’s founding affidavit in the condonation application.  They have never been articulated in the exchange of correspondence and WhatsApp messages between the parties over a protracted period in any manner or form.  On the contrary, the averments made by the respondent are simply inconsistent with the objective contemporaneous documentation and messages that have been exchanged between the parties.

[56]      As was said by Miller JA in the seminal judgment in McWilliams v First Consolidated Holdings (Pty) Ltd 1982 (2) SA 1 (A) at 10:

‘I accept that “quiescence is not necessarily acquiescence” (see Collen v Rietfontein Engineering Works 1948 (1) SA 413 (A) at 422) and that a party’s failure to reply to a letter asserting the existence of an obligation owed by such party to the writer does not always justify an inference that the assertion was accepted as the truth.  But in general, when according to ordinary commercial practice and human expectation firm repudiation of such an assertion would be the norm if it was not accepted as correct, such party’s silence and inaction, unless satisfactorily explained, may be taken to constitute an admission by him of the truth of the assertion, or at least will be an important factor telling against him in the assessment of the probabilities and the final determination of the dispute.  And an adverse inference will the more readily be drawn when the unchallenged assertion had been preceded by correspondence or negotiations between the parties relative to the subject-matter of the assertion.  (See Benefit Cycle Works v Atmore 1927 TPD 524 at 530-532;  Seedat v Tucker’s Shoe Co 1952 (3) SA 513 (T) at 517-8;  Poovrt Sugar Planters (Pty) Ltd v Umfolozi Co-operative Sugar Planters Ltd 1960 (1) SA 531 (D) at 541; and Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1963 (1) SA 632 (A) at 642A-G.)  I have no doubt that appellant’s silence and inaction after receipt of the letter justify an inference adverse to him.  It appears from the evidence of McKenzie that Schneider and the appellant were on friendly terms; they sometimes played golf together and as will be seen from the letter Schneider addressed him his first name, Verne.  It is almost inconceivable that had the appellant not regarded the letter of 21 April as being substantially correct he would not have communicated with Schneider, whether by telephone or letter or in any other way.  There is nothing to show that he responded to the letter, nor did he claim to have done so or given any explanation worthy of consideration for not doing so.’

[57]      Bearing in mind that the respondent is an experienced litigation attorney, his failure over a protracted period of time to have challenged critical assertions put forward by the applicants in their correspondence and messages to him, and only now seeking to challenge them belatedly, in my view, warrants an inference adverse to him.  Numerous emails and messages were addressed by the applicants to the respondent calling for payment of their outstanding fees from the respondent.  It would have been the simplest matter for the respondent promptly to have raised the defences he now raises for the first time in his founding affidavit in the condonation application, particularly the defence that payment of the applicants’ fees in respect of their professional services rendered for his clients Mr Marimuthu and Dr Isseri were ‘wholly conditional to the Firm receiving payment from’ them.  Also, when the applicants caused the respondent’s name to be placed on the Bar Council’s list of defaulting attorneys, and the Bar Council addressed correspondence to him calling upon him to make payment of the outstanding  fees owing to the applicants, it would have been the simplest matter for him to have raised the defence that payment of the applicants’ fees was wholly conditional on his firm receiving payment from its clients.

[58]      It appears from the common cause facts that the applicants and the respondent had a relatively long working relationship together, they were on friendly terms and addressed each other by their first names.  It is, like in McWilliams, almost inconceivable that had the respondent not regarded the correspondence from the applicants as being substantially correct, he would immediately have set the record straight.  He after all is an experienced litigation attorney and that is what attorneys do when they disagree with an assertion.    The respondent, in my view, dismally fails in giving any explanation worthy of consideration for not doing so. 

[59]      The words and conduct of the applicants, and also those of the respondent himself, do not lend credence to the respondent’s present assertions.  The applicants persistently demanded payment of their fees from the respondent, they caused the Bar Council to place his name on the list of defaulting attorneys, they got the required permission from the Bar Council to institute legal proceedings against him for payment of their fees and they instituted the main applications against him.  The respondent, in turn, kept on pressurising Dr Isseri and Mr Marimuthu for payment of the applicants’ fees and he obtained a provisional sequestration order against the estate of Mr Marimuthu, establishing his locus standi with a liquidated claim against Mr Marimuthu based on the outstanding fees owing to the applicants.  Furthermore, the point of law taken by the respondent in his notices in terms of r 6(5)(d)(iii) carries with it an acceptance that the responsible party in law for the applicants’ fees is his firm, albeit not him personally.

[60]      I also find nothing sinister in the applicants’ attempts at finding an attorney in Johannesburg to represent the respondent in the main applications or their repeated invitation to him that they would draft third party notices for him to join Mr Marimuthu and Dr Isseri to their respective main applications.  Rule 13(1)(a), read with r 6(11) affords any party to an application the right to join a third party to the application, inter alia, upon the ground ‘that such party is entitled, in respect of any relief claimed against him, to a contribution or indemnification from such third party’.  It is common cause that the respondent had been briefing the applicants extensively - the second applicant since 2011 and the first applicant since 2015 - to act as counsel, in the words of the respondent, ‘in several high value commercial matters on behalf of the Firm’s various clients totalling millions of Rand in litigation value’ and that the applicants have earned millions of Rands in fees as a result of being briefed by the respondent.  The inevitable inference is that the respondent was an important instructing attorney in the practices of each the first and second applicant.  I also accept the applicants’ version that they did not wish to cause financial ruin to the respondent through the main applications instituted against him.  They wished for Mr Marimuthu and Dr Isseri to pay to the respondent what they owe him in respect of the applicants’ fees.  By means of their joinder to the respective main applications, the respondent, therefore, could have claimed a contribution or indemnification from Mr Marimuthu and Dr Isseri.

[61]      If each main application is ‘a ruse’ and ‘a contrived proceeding which was devised and launched by the Applicants purely with one purpose which was to ensure that they secured a money judgment against two of the clients who had unilaterally elected to hold back monies that the Applicants had been claiming’ and in which ‘ruse’ the respondent participated, then it is inexplicable why he did not proceed with due haste in prosecuting the third party notices in terms of r 13 as early as October 2019, when numerous attempts were made by the second applicant to obtain information of and concerning Mr Marimuthu and Dr Isseri from the respondent, in order to draft the third party notices for the respondent.  The second applicant eventually gave up in December 2019 in trying to obtain the required information since, according to her, ‘the respondent was dragging his feet’ and not coming forth with the required information.  The second applicant made it clear to the respondent in her email addressed to him on 13 December 2019, to which I have referred in para 26 supra, that if he was not going to assist in the joinder process then she and the first applicant would still persist in their applications against him without those parties.

[62]      The respondent avers that the letters and messages addressed to him by the applicants and his written offer made on 12 August 2019 to liquidate his indebtedness owing to the applicants in the sum of R300 000 per month, were ‘hollow’ letters and his offer ‘was a hollow document’ created ‘to placate’ the Bar Council into allowing the applicants to continue working with his firm.  However, the applicants obtained permission from the Bar Council to act on behalf of one of the respondent’s clients, Mr Siva Naidoo and his son, subject to the applicants being paid cash on brief.  Their reason for requesting such permission was that they had been involved in litigation for Mr Naidoo since about 2015, and he would have been severely prejudiced if new counsel were to be appointed to act on his and his son’s behalf.  The applicants never sought permission from the Bar Council to act on behalf of any other client of the respondent or his firm. 

[63]      The respondent further avers that at the first applicant’s request he sent the offer to him in the morning on 12 August 2019 so that the Bar Council could be notified of the proposal.  He avers that because the first applicant had told him what the purpose of the offer was, he did not respond to the second applicant’s email dated 26 August 2019, and when he spoke to her the next day after she had send him the WhatsApp message on 16 September 2019, she told him that ‘the message was purely a reporting medium for the Bar Council to show that the Applicants were following up with the proposal from the Firm’.   However, once the applicants had caused the respondent’s name to be put on the Bar Council’s list of defaulting attorneys, had obtained permission from the Bar Council to act on behalf of one of the respondent’s clients, Mr Siva Naidoo and his son, and had obtained permission from the Bar Council to institute legal proceedings against the respondent for payment of their fees, there was no reporting to the Bar Council required, other than when they got paid in order for the respondent’s name to be removed from the Bar Council’s list of defaulting attorneys. 

[64]      The respondent’s averment that his firm’s role was merely that of facilitating payment from Mr Marimuthu to the applicants in Mr Marimuthu’s personal tax matter is, as I have mentioned, in conflict with his version under oath in his founding affidavit in the sequestration application.  Furthermore, in para 12 supra I referred to the discussion between the respondent and Ms Faber on 31 May 2019, and the agreement they reached as recorded in her email addressed to him on the same day, namely that the applicants should bill him directly.  He also advised the second applicant that the applicants ‘should continue to send all fee notes to [him or his firm]’.

[65]     The respondent avers that he had discovered discrepancies in the applicants’ billing and that it appears that certain amounts claimed by them are not totally correct.  However, not once did the respondent dispute the quantum of the applicants’ fees, their reasonableness or the fact that the professional services for which they have invoiced him or his firm had in fact been rendered.   I have referred in para 19 supra to the applicants’ discussion with the respondent during October 2019 relating to the possibility of having their fees assessed by the Bar Council and the respondent’s subsequent advise to them that it was not necessary since there was simply no dispute in regard to the rendering of the services as well as the quantum.  I have also referred to Mr Marimuthu’s WhatsApp message addressed to Ms Faber on 28 July in para 14 supra, wherein he expressed his faith in and appreciation for the professional services rendered by the applicants and her in respect of his personal tax matter and his commitment to pay the fees in respect of their professional services.  The applicants tendered to have their fees assessed in respect of their professional services rendered in respect of Dr Isseri, but Dr Isseri also declined the offer.  I have referred to his email message addressed to the respondent on 22 October 2019 in para 18 supra, wherein he too expressed his appreciation for their professional services and that there was no need for him to complain about their fees, since their work was done diligently.

[66]      I conclude, therefore, that the respondent has also not established strong prospects of success that could excuse his inadequate explanation for the delay.  He has not shown good cause for an extension of the time fixed for the filing of his answering affidavits by the order of this court on 11 February 2020, or for condonation for his failure to have filed his answering affidavits in the main applications.

[67]      Finally, the matter of costs. The applicants seek costs on a punitive scale, including the costs of two counsel whenever so employed.  There is, in my view, no reason to depart from the general rules that costs should follow the event and that the successful party is awarded costs as between party and party.  This is not one of those ‘rare occasions’ where an award of punitive costs is warranted.  Furthermore, neither the factual nor the legal difficulties are such as to warrant the engagement of two counsel.  (See LAWSA Vol 3 Part 2 Second Edition paras 292, 328 and 417.)  

[68]      In the result the following order is made:

The condonation application dated 21 July 2020 is dismissed with costs.

 

 

 




P.A.  MEYER

JUDGE OF THE HIGH COURT

 

 

 

 

 

Judgment:                          07 May 2021

Heard:                                25 November 2020

Applicant’s Counsel:         Adv R Mohamed

Instructed by:                     Mohamed Hassim Attorneys, Musgrave, Durban

Respondents’ Counsel:      Adv N Redman

Instructed by:                    Ian Levitt & Associates, Sandton, Johannesburg