IN THE HIGH COURT OF SOUTH AFRICA 
(GAUTENG DIVISION, JOHANNESBURG)
REPUBLIC OF SOUTH AFRICA
Date of hearing : 11 September 2017
Date of judgment:   29 September 2017
Case number 41189/2017
In the matter between :                                                                                                           
ABRAHAM THAMI NCONGWANE SC                                                                                                                   First Applicant
ISAAC PHUMLANI NGOBESE                                                                                                                               Second Applicant
versus
EHLERS FAKUDE INC                                                                                                                                                                             Respondent
JUDGMENT
BRENNER, AJ:
1. In this opposed application for summary judgment, the first applicant is advocate Abraham Thami Ncongwane SC ("Ncongwane"), and the second applicant is advocate Isaac Phumlani Ngobese ("Ngobese"). The respondent is Ehlers Fakude Incorporated, (''Ehlers Fakude"), a professional corporation which carries on practise as attorneys. Messrs Ncongwane and Ngobese are also referred to below, where cited jointly, as "the applicants".
2. Ncongwane claims payment of fees   totalling   R461 244,00,   including   Vat, for services rendered, at the behest of Ehlers Fakude,   in   motion   proceedings involving the latter's client, Deborah Moosa ("Moosa"). The proceedings are cited as Burgh Group Holdings (Pty) Ltd versus Deborah Moosa and six others under case number 80178/ 2014. The claim of   Ngobese is for payment of fees totalling R345 933,00, including Vat, for services rendered for Ehlers Fakude in the same case. The invoices of the respective applicants are attached   to   the   summons   and   particulars   of claim.
3. The affidavit in support of the application for summary judgment   was deposed to by Ngobese solely. In his affidavit,   Ngobese   asserts that he is the second plaintiff and is authorized to depose to   the   affidavit.   He states that he signed the affidavit, both in his personal capacity,   and on behalf of the first   plaintiff,   Ncongwane.   No   written   authority   is   attached   to Ngobese's affidavit to corroborate his averment that Ncongwane had authorized him (Ngobese) to   depose   to   the   summary   judgment   affidavit. No explanation is proffered as to why Ncongwane was unable to sign an affidavit   on his own behalf.
4. This omission falls foul of rule 32 (2) of the uniform rules of court, which requires the affidavit to be made by the plaintiff himself, or by any other person who can swear positively to the facts verifying the cause of action, and the amount claimed. Based in the averments in the particulars of claim, and the fact that each advocate raised a separate, discrete   invoice to Ehlers Fakude, the only person who had personal knowledge of Ncongwane's claim was Ncongwane himself. He did not depose to his own affidavit, nor did he execute a confirmatory or supporting affidavit to corroborate the averments in Ngobese 's affidavit. It follows that   the summary judgment application by Ncongwane was not properly before the Court.
5. It was suggested by Counsel for the applicants that the hearing could be postponed to cure this omission, by means of a supplementary affidavit from Ncongwane. I declined this suggestion. An indulgence of this nature would offend the provisions of Rule 32(4), which precludes any evidence being adduced by the plaintiff, otherwise than by means of the affidavit referred to in Rule 32(2). This should be read with the peremptory time constraint in Rule 32(2), which prescribes that the application for summary judgment should be delivered within 15 court days after the date of delivery of the notice of intention to defend. For the failure to comply with the provisions of rule 32, simpliciter, the summary judgment application in favour of Ncongwane must fail.
6. Counsel for Ehlers Fakude made an attempt to supplement its opposing affidavit by asking the Court   to   permit the introduction   of a supplementary affidavit, to amplify its request for the taxation or assessment of the applicants' invoices. This was refused because any supplementation of its papers would offend the peremptory time constraint in Rule 32( 3)(b),   which prescribes that the opposing affidavit in summary judgment proceedings shall be delivered before noon on the court day but one preceding the   day of the hearing of the   application.
7. Indulgences of the nature sought by the parties in this application would militate against the purpose of summary judgment proceedings, which are designed to be heard summarily and expeditiously, via a curtailed process which calls for the exchange of one affidavit   by each opposing party. For   this   reason,   strict adherence   to   the requisites   of   rule 32 is desirable. Any relaxation of its clear requirements would result in the prolongation of the process, and would defeat the objective.
8. I refer to Ngobese's claim. It is based on what is considered to be a   liquidated amount in money. Where mention is made of   Ncongwane's   claim, this is for convenience, as both advocates acted in unison with one another in Moosa's case.
9. The particulars of claim advert to an instruction given by Ehlers Fakude to Messrs Ncongwane and Ngobese on 8 December 2015 to represent Moosa in the proceedings. To this   end,   they   were   mandated   to   consult   with Moosa and/or any persons who were well versed with the issues, draw an answering affidavit and a condonation application for the late filing of the answering affidavit, prepare for the hearing, and appear in the   North   Gauteng High Court on 14 January 2016, to represent Moosa. It is alleged that it was an implied term of the instructions that Messrs Ncongwane and Ngobese would be entitled to payment of   a   fair   and   reasonable   fee   for their services.
10. On 8 March 2016, they submitted their respective invoices   to   Ehlers   Fakude. The invoices   were required to   be paid within 90 days of the   date   of receipt. The deadline appears to have expired on or about 6 June     2016 .
11. When payment was not timeously made, a letter of demand was sent, to inform Ehlers Fakude that, failing payment within   seven   days,   the applicants would report the   default of Ehlers   Fakude   to "the Bar Council". On 2 July 2016, the Pretoria Society of Advocates ("the PTA")   sent   a   written notice to Ehlers Fakude that it would be placed on the list of   defaulters in the absence of payment within 10 days from the date of its letter.
12. Ehlers Fakude sent two letters to the   applicants,   on 8   August   2016,   and on 4 May 2017. In neither letter was the reasonableness of the   fees   disputed .   The   first     letter     records   that   Ehlers     Fakude     was   "vigorously working on having your invoices, at least part thereof, settled in   due   course, hopefully before the end of the current month." An apology was extended for any delay and inconvenience, both by Ehlers Fakude, and on behalf of its client. The second letter mentions Ehlers Fakude's being "saddened to advise and inform you that as at date hereof   and   despite client' s undertakings, and promises to do so, we are yet to be placed   in funds by client." An assurance   was given that   Ehlers Fakude   would "for   the umpteenth time" proceed to communicate with its client. The letter records that, if summons is served   on   Ehlers   Fakude,   it   would   join   its client as a co-defendant.
13. The contents of these letters are   tantamount   to   acknowledgments   of liability   for   the amounts claimed in the   applicants' invoices.
14. Ehlers Fakude's opposing affidavit in   the summary   judgment   proceedings is deposed to by Zithule le Emmanuel Fakude ("Fakude"), a director   of Ehlers Fakude. The confirmatory affidavit of Moosa is attached to the opposing affidavit.
15. Three issues are raised. They are traversed ad seriatim.
16. Ehlers Fakude alleges that it briefed Ngobese on his own. When Ngobese informed Ehlers Fakude that the case was too complicated for him, Moosa asked for advocate David Mtsweni ("Mtsweni") to be briefed with him. It is alleged that Moosa did not have funds to pay for both Ngobese and Ncongwane. However, Ngobese refused to work with Mtsweni. The issue was discussed at a meeting at Ngobese 's chambers on 8 December 2015, at Which Moosa purportedly proposed the conclusion of a contingency fee agreement with the applicants. The proposal was allegedly accepted. The parties agr:eed that this agreement would be finalized at a later stage, and that the applicants would proceed to act for Moosa in the interim. On 30 March 2016, however, the applicants sent their invoices to   Ehlers   Fakude by email, and thereafter, refused to perform further work   until   they   were paid.
17. The second issue constitutes a dilatory defence which relates to a claim for taxation of the invoices. It is set out in the following paragraph of the opposing affidavit:
"I am of the view that a different or favourable solution must be looked into and arrived between the applicants, respondent and my client. I am further of the   view that the applicants' invoices, in the event that this Honourable Court finds that they are already due and payable, must first be taxed by the Taxing Master of this Honourable Court. The invoices, as they currently (sic) are not a liquid document as their liquidity is being disputed and cast into doubt by my client."
18. The third issue is procedural in nature, namely, that Moosa should have been joined as a second defendant owing to her "direct and substantial interest in these proceedings' the view being expressed that the outcome of the application would have a "direct and huge effect on her."
19. Rule 32(3)(b) of the Uniform Rules obliges a respondent in summary judgment proceedings to adduce a bona fide defence to   the   action by way   of an affidavit which discloses fully the nature and grounds of the defence   and   the   material   facts relied upon therefor.
20.A holistic approach constitutes the logical starting point in the overall enquiry concerning whether a bona fide defence has been advanced. In Erasmus Supreme Court Practice, second edition, Van Loggerenberg   Volume   2,   at     Dl-388,   the author stated:
"In the exercise of its discretion under the wider test, the court must   not look   only at the summons in order to decide whether a claim is for a   liquidated amount of money, the defence as disclosed in the defendant's opposing affidavit must also be taken into account."
21.In   the   case   of   Breitenbach   v   Fiat   SA   (Edms)   Bpk   1976   (2) SA 226 (T), the Court held as follows:
"It must be accepted that the subrule was not intended to demand the impossible.   It cannot, therefore, be given its literal meaning   when it   requires the defendant to satisfy the Court of the bona tides of his defence. It will suffice......if the defendant swears to a defence, valid in law, in a manner which is not inherently and seriously unconvincing."
22.A further inciteful case is that of Joob Joob Investments (Pty) Ltd v Stocks Mavundla Zek Joint Venture   2009   (5)   SA   1   (SCA),   at paragraph 31, my emphasis included:
"The summary judgment procedure was not intended to "shut a defendant out   from defending': unless it was very clear indeed that he   had   no   case   in   the action. It was intended to prevent sham defences from defeating the rights of the parties by delay, and at the same time causing great loss to plaintiffs who were endeavouring to enforce their rights. The rationale for summary judgment proceedings is impeccable. The procedure is not intended to deprive a defendant with a triable issue or a sustainable defence of her/his day in   court."
23.The suggestion by Ehlers Fakude that the applicants concluded a contingency fee agreement with it and Moosa is uncorroborated by any independent facts, and is contradicted by its own conduct on receipt of the invoices. No details are provided in its affidavit of the terms of this alleged agreement, nor is any correspondence on the subject produced. Nor is there mention in its letters of 8 August 2016 and 4 May 2017 of such an agreement. This defence is unsubstantiated and neither genuine nor bona fide.
24.Concerning the issue of the non-joinder of Moosa, Ehlers Fakude's affidavit does not suggest that the applicants concluded an agreement which included a term that Moosa would be directly liable to them for payment of their fees. Absent an express agreement between Counsel and the instructing attorney, it   can never be implied that Counsel are obliged   to look to the client directly for payment. Vide Serrurier and another v Korzia and another 2010(3) SA 166 WLD. The defence based on the non-joinder of Moosa is inherently implausible and lacking in foundation, and must fail.
25.The remaining defence pertains to the fairness of the fees charged, and this is germane to the determination of whether the claims are liquidated   to warrant the granting of summary judgment. An untaxed bill has been found to constitute a liquidated claim . It is not   a condition precedent to the launch of an action for a bill of costs to be taxed. It is left to the discretion   of the Court to   determine   whether,   on the facts of   a particular case, the claim for legal fees is liquidated. In casu, various considerations were taken into account.
26.The correspondence of Ehlers Fakude is silent on any request for taxation, appears to admit liability for the invoices, and fails to dispute the quantum thereof. Its demand for the applicants to refer their bills for taxation (I presume it means assessment by the relevant body) came at a very late stage, and only after the summons had been served.
27.Nevertheless, in its opposing affidavit, Ehlers Fakude calls for the taxation of the applicants' invoices, as their "liquidity is   disputed".   Its dissatisfaction with the quantum charged by the applicant s is implicit in this statement and in the paragraph in which it appears.
28.In the enquiry as to whether a genuine, bona fide defence was raised concerning the fairness of the invoices, Ehlers Fakude's pre-litigation admissions of liability, while important, are not dispositive of the mat ter. The Court cannot without further ado disabuse its mind of the call for taxation in the opposing affidavit. All facts of relevance need to be addressed to determine whether, in   the face of   the   contra-indications in its prior letters, Ehlers Fakude was bona fide, genuine and convincing in calling for the assessment of the invoices, and whether this gives rise to a triable issue, and imposes an obligation on the applicants to have their invoices assessed before pursuing their claims.
29.In this case, the brief cover from Ehlers Fakude, dated 24 November 2015, to Ngobese (and, by necessary implication, Ncongwane), and attached to the opposing affidavit, mandated three functions. They were:   to peruse the brief and to draw Moosa's answering affidavit, to draw a condonation application for the late filing of this affidavit, and to draw   heads of argument and a practice note. The brief recorded that the matter would be heard on 14 January 2015. This was obviously intended to mean 14 January 2016.
30.The applicants' invoices reveal identical days and hours spent by them in performing their instructions. They did not charge for heads of     argument or a practice note. The performance of   their   mandate   related   to   time   spent to peruse papers, to attend several   consultations,   and   to   draw Moosa's answering   affidavit   and   condonation   application.   They   appeared in Court on 14 January 2016, they   drew   a   memorandum   and   they consulted on 7 March 2016 to discuss the settlement of the case. For the above, Ncongwane charged a fee of R461 244,00 including Vat, while Ngobese charged a fee of R345 933,00 including Vat. A consideration   of their invoices   indicates that their engagement   entailed time spent of about   15 days in the aggregate.   This   assumes   an eight hour   day   where   hours are mentioned   in   their invoices.
31. Ehlers Fakude mentions the possibility of Moosa suffering prejudice if summary judgment were granted.   While Moosa   was not   a necessary party to the action, I am obliged to take account of the potential consequential impact of an adverse summary judgment against Ehlers Fakude, based on unassessed invoices. The possibility, if not probability, remains extant that Moosa may be sued by Ehlers Fakude for the same amount claimed in this action by the applicants. The argument may well be advanced against   Moosa, potentially to   her   detriment,   that the costs   of Counsel   were   found to be liquidated, and therefore fair and reasonable, because summary judgment was granted in their   favour.   Cognisance   needs   to   be   taken   of the fact that Moosa may call upon Ehlers Fakude to   tax   an attorney   and   own client bill of costs in due course, and this bill would include the fees of Counsel.
32. A Court should be reluctant to arrogate to itself the functions of a taxing master or a fee assessor, both of whom are suitably equipped with the expertise to examine the details of, and justification for, the work done, including, inter alia, the magnitude and complexity of the case, the time spent, and the results achieved.
33. As a general principle, it is not within the province of this Court, as a   Court of first instance, to pronounce upon the fairness of Counsel's fees, where this is disputed. This function falls squarely within the jurisdiction of the relevant fee assessment committee of Counsel. In casu, this   appears to be the PSA. Even where an attorney and his client have agreed to a specified hourly rate, the binding nature of the agreement is not absolute, and is not definitive of the fairness of the bill raised. The following cases have endorsed this approach.
34. In Tredoux v Kellerman 2010(1) SA 160 CPD, an advocate and his   instructing attorney sued for payment of their   legal   fees, which   were rendered for the defendant in   a   divorce   action.   The defendant   disputed   the reasonableness   of   the   fees   in   a   summary   judgment   application brought against him. The full bench of the   Western Cape High Court   held   that such claims were not liquidated   where they   involved   an enquiry   into   the nature and extent of the services, and their reasonableness. These matters were considered by the   Court   as "not mere matters of calculation" but   fell instead   within the   purview   of   the   taxing master.
35. The case of Malcolm   Lyons   and   Munro   v   Abro   and   another   1991(3) SA 464 WLD,   involved an unsuccessful   application   for   the   judicial   review of a decision   taken by the Taxing Master to   tax   off   certain amounts   from   an attorney and own client bill of costs. The Court found that the Taxing Master is not bound by an agreement in which the hourly rate   was   specified, where he considered certain work   to   have   been   unnecessary   and therefore   not   reasonable.   At   page 699, the Court stated:
"All in all, therefore, the Taxing Master in my opinion rightly did not regard the client nor, of course, himself, to be bound by an agreement to the effect that the attorneys would be entitled to payment at the rate of R220 per hour for all the work they did in connection with the action, necessary or unnecessary, prudent or prodigal."
36.A relationship between a former attorney and client came to the fore in Blakes Maphanga v   Outsurance   Insurance   2010(4}   SA   232   SCA. The attorneys sought to set off monies collected for their former client against untaxed fees and disbursements, on termination of their mandate. The client had called for its former attorneys to tax their fees and disbursements. The SCA held that, flowing from a client's right to taxation of an attorney and own client bill, the amount of an untaxed disputed bill   of costs was not   a liquidated debt, but   one yet   to   be ascertained by   the taxing master. The SCA held, at paragraph 18E (page 241) to 18A   (page 242),   my emphasis:
"The duties of a taxing master include the duty to determine whether costs have been incurred or increased through over-caution, negligence or mistake, or by payment of a special fee to an advocate, or special charges and expenses to witnesses or to other persons or by other unusual expenses. It   is his duty   to decide whether the services have been performed and he should not close his eyes and ears to evidence which may be readily available to show that any work alleged to have been done was in fact not done. Even where an agreement exists between an attorney and client a taxing master is empowered to satisfy him- or herself that fees related to work done and authorised were reasonable. There are sound reasons   for a client's right   to   insist   on taxation   and to   regard   the amount of a bill of costs that has not been taxed as not   liquidated. The question whether   a debt may be capable of speedy ascertainment is a matter left for determination to the individual discretion of the Judge. In the case of a disputed bill of costs in litigious matters, however, the reasonableness is to be determined by the taxing master and not by   the court."
37. While her non-joinder is not a defect in the pending action, on a practical level, Moosa has a residual interest in the outcome. There are sound reasons why an independent body with comparable powers to those of a taxing master should assess the fees of the applicants. This would serve the interests of litigating parties, who should be able to approach access   to justice with the confidence and trust that there   are   mechanisms   in place for the independent oversight of legal fees. Ultimately, it is Moosa who may eventually foot the entire bill for the services rendered to   her.
38. Albeit that the call for the taxation/assessment occurred at   a   late   juncture, in summary judgment proceedings, this fact alone should not deprive Ehlers Fakude of exercising this defence, albeit that it is one which impacts on verification of the quantum of the claims.
39. Based on the relevant facts, taken cumulatively, Ehlers Fakude was genuinely convincing in proving a bona fide, prima facie, triable defence   on the merits. Its opposing affidavit contained enough substance to fortify   a defence that the quantum of the claims was disputed, and therefore liable to be assessed, and that the claims were not liquidated, as required by   Rule   32.   Leave   to   defend   in regard   to   Ngobese's   claim   should be granted, with the usual costs order, namely that the costs of the application should be costs in the cause of the main action.
40. The summary judgment application for Ncongwane must be dismissed because his supporting affidavit was not attached to the application. Since   no affidavit   was signed, there   should be no order as to     costs.
41. The following order is granted, namely:
a.     In the first applicant's application for summary judgment:
i.           the application is dismissed;
ii.           there is no order as to costs;
b.     In the second applicant's summary judgment application:
i.           the application is refused;
ii.         the   respondent   is granted   leave to   defend in   the main action;
iii.           costs shall be costs in the cause of   the   main   action.
_____________________
T   BRENNER
ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA 
GAUTENG   DIVISION,   JOHANNESBURG
29 September 2017

Appearances
Counsel for the Applicant:                               Advocate G Bofilatos SC 
Instructed   by:                                                                 Bekker Attorneys 
Counsel for the Respondent:                     Advocate ASL van Wyk
Instructed   by:                                                                 Ehlers Fakude Inc   Attorneys