REPORTABLE

CASE NO. I 1762/2011

IN THE HIGH COURT OF NAMIBIA

In the matter between:

FRIEDRICH CHRISTIAN BRANDT t/a

CHRIS BRANDT ATTORNEYS
APPLICANT/PLAINTIFF

and

WINDHOEK TRUCK & BAKKIE CC 1st RESPONDENT/DEFENDANT

JOHANNA ALETTA FERREIRA 2nd RESPONDENT/DEFENDANT
LEONARD FERREIRA 3rd RESPONDENT/DEFENDANT

CORAM: CORBETT, A.J

Heard on: 15 NOVEMBER 2011

Delivered on: 5 APRIL 2012

______________________________________________________________
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JUDGMENT

CORBETT, A.J: .

[1] This is an application for summary judgment in terms of Rule 32 of the

Rules of the High Court brought against the defendants. In the summons, the

plaintiff, a legal practitioner, claims an amount of N$86,509.00 in respect of an

account rendered to the defendants in respect of fees and disbursements

incurred in litigation conducted on behalf of the defendants against a third party.

AUTHORITY IN VERIFYING AFFIDAVIT

[2] In the opposing affidavit filed on behalf of the defendants, a preliminary

point was taken that the deponent to the verifying affidavit had failed to allege

that he was duly authorised to initiate the summary judgment application. In the

second paragraph the deponent to the affidavit states that he is “authorized to

depose to the affidavit for and on behalf of the plaintiff”. Although the deponent

fails to expressly state that he is authorised to bring the application for summary

judgment on behalf of the plaintiff, it is evident from a reading of the whole

verifying affidavit that authority is referred to in this context. I accordingly find

that there is no foundation to this objection.

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APPLICATION TO STRIKE OUT

[3] The defendants brought an application to strike out paragraph 3 of the

verifying affidavit. In paragraph 3 the deponent states that he has “at all relevant

times been the legal practitioner of record so acting for and on behalf of the

Respondents [the respondents in these proceedings] in legal proceedings so

conducted against Wilhelm George Lucas as the plaintiff as is evident from the

particulars of claim and the Special Powers of Attorney and Resolution so

attached to the Particulars of Claim…’. It was contended on behalf of the

defendants by Mr Wylie that paragraph 3 should be struck on the basis that it

constituted inadmissible and extrinsic evidence not permitted by Rule 32 (3) (b).

Mr Mouton, who appeared for the plaintiff, submitted that the paragraph merely

referred to the capacity in terms whereof the deponent deposed to the verifying

affidavit and that the defendants were not prejudiced in their opposition to the

summary judgment application by the inclusion of this paragraph in the verifying

affidavit.

[4] An applicant for summary judgment must set out the cause of action and

the amount claimed must be confirmed by someone who can swear positively to

the facts. The deponent must further state that in his or her opinion there is no

bona fide defence to the action and that the notice of intention to defend was

delivered solely for the purposes of delaying the action. The deponent may not in

the verifying affidavit refer to evidence in support of the plaintiff’s action 1.

1
Triplejay Equipment (SWA) (Pty) Ltd v Muller, 1962 (3) SA 115 (SWA), 116 C - D
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[5] On a perusal of the summons, it is evident that neither the particulars nor

the power of attorney and resolution state specifically that Helmut Stolze was the

legal practitioner of record in the proceedings, but refer to him, alternatively the

plaintiff, further alternatively the firm as being so authorised to act on behalf of

the defendants in that litigation. The statement made in paragraph 3 of the

verifying affidavit is accordingly an amplification of the summons in this matter.

Summary judgment is an extra-ordinary and stringent remedy 2 and there is scant

reason for extending its ambit by permitting any form of amplification of the cause

of action as set out in the summons 3. I accordingly find that the application for

the striking-out of the whole of paragraph 3 of the verifying affidavit is well

founded and I make an order to that effect. I pause to mention, however, that the

verifying affidavit sans paragraph 3, meets the requirements of Rule 32 (2).

UNTAXED PROFESSIONAL FEES

[6] The plaintiff’s cause of action is based upon the defendants’ failure to pay

his professional fees. It was contended on the plaintiff’s behalf that the plaintiff

had complied with the requirements of Rule 32 (1) (b) in that the claim was for a

liquidated amount in money. This submission was contested on behalf of the

defendants on the basis that professional fees, until taxed, do not constitute a

liquidated amount in money as required by the sub-rule. Generally a liquidated

2
Maharaj v Barclays National Bank Ltd, 1976 (1) SA 418 (A), 422 A - D
3
Steeledale Reinforcing v H O HUP Corporation, 2010 (2) SA 580 (ECP), 585, para [15]
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amount in money is an amount either agreed upon or which is capable of speedy

and prompt ascertainment or, put differently, where ascertainment of the amount

in issue is “a mere matter of calculation” 4.

[7] In the opposing affidavit the defendants dispute that they are indebted to

the plaintiff in the amount claimed. They deny that the professional fees and

disbursements claimed are fair and reasonable. They set out in detail items

which they consider to be unreasonable and unfair in the bill of costs. They

further state that they are entitled to have the plaintiff’s bill of costs taxed in order

to determine whether the amounts claimed by him constitute fair and reasonable

fees and disbursements for the services rendered. They state that at no stage

has the plaintiff’s bill of costs indeed been taxed.

[8] I note that the defendants, when dealing in detail with the plaintiff’s bill of

costs in their affidavit, do not refer to each item as being unreasonable and

unfair, but highlight only certain specific instances. This does not amount to an

admission that the remaining fees and disbursements are fair and reasonable

since the defendants rely on a general denial. In any event, as was stated by

Corbett J (as he then was) in the matter of Botha v Swanson & Co (Pty) Ltd 5:

“nor am I persuaded that the claim in the summons which is not liquidated is

rendered liquidated by the defendant admitting liability for the lesser amount” 6.
4
Consolidated Fish Distributors (Pty) Ltd v Sargeant, Jones, Valentine & Co., 1966(4) SA 427 (C),
430A
5
1968 (2) PHF 85 (C)
6
Quoted with approval in Neves Builders and Decorators v De La Cour, 1985 (1) 540 (CPD), 546 F - G
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[9] Generally in a claim based on a contract, whether it be for the sale of

goods or the rendering of services, and no express agreement has been reached

as to the price or fee to be charged, it is an implied term of the contract that

reasonable remuneration will be paid in terms of such contract. By reference to

existing trades and professions, what is the usual and current market price for

articles sold and reasonable remuneration for services rendered, is something

that can be ascertained speedily and promptly 7.

[10] This principle does not apply to legal practitioners’ professional fees. In the

matter of Blakes Maphanga v Outsurance Insurance Malan JA distinguished

these considerations from the approach to be taken in relation to attorneys’ fees

in stating 8:

“The relationship between an attorney and client is based on an agreement of

mandatum entitling the attorney, in the absence of an agreement to the contrary,

to payment of fees on performance of the mandate or termination of the

relationship. In Benson the court said:

‘But what is clear is that by the end of the last century it had become an

established practice that the Court did not undertake the task of inter alia

quantifying the reasonableness of attorneys’ fees and that taxation of such a bill

of costs was left to the taxing officer. This did not entail, however, that an attorney

7
Fatti’s Engineering Co. (Pty) Ltd v Vendick Spares (Pty) Ltd, 1962 (1) SA 736 (T), 739 B - F
8
2010 (4) SA 232 (SCA), 239, para [16]
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could not sue or obtain judgment on an untaxed bill. Although … the Court

assumed a discretion to order a bill to be taxed, and although a Court would not

allow an action to proceed if the client insisted on taxation, there was no reason

why judgment could not be given for an attorney if the client was satisfied with

the quantum of the bill but defended the action on some other ground.’ “9

[11] I am of the view that the plaintiff’s claim does not fall into the category of a

liquidated amount of money in the sense that it can be ascertained promptly or

that the amount in issue is a mere matter of calculation. In order to determine the

reasonableness of the plaintiff’s professional fees and disbursements, there has

to be an enquiry into the nature and extent of the services undertaken by the

plaintiff on behalf of the defendants, and in respect of any such attendances the

reasonableness of the fees charged and a consideration of the justification for

the disbursements and charges levied in respect of the work done 10.

[12] In terms of Rule 70 of the High Court Rules the duties of a taxing master

include determining whether – “costs, charges and expenses as appear to him or

her to have been necessary or proper for the attainment of justice or for

defending the rights of any party..” and whether any such 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”.

9
The reference to Benson: Benson & Another v Walters and Others, 1984 (1) SA 73 (A), 85B -D
10
Tredoux v Kellerman, 2010 (1) SA 160 (CPD), 166, para [18]
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Even where an agreement exists between a legal practitioner and a client as to

the fees to be charged, a taxing master is empowered to satisfy him- or herself

that the fees indeed related to work done and so authorized, and that they were

still reasonable 11.

[13] Malan JA concluded in the Blakes Maphanga matter12:

“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.”

I respectfully adopt this reasoning of Malan JA in determining this application.

The issues to be considered in a taxation of a bill of costs are not matters of

mere calculation. They are matters for taxation which fall within the authority and

competency of the taxing master. It is for the taxing master to determine the

reasonableness of professional fees charged by legal practitioners. In my view,

the plaintiff was ill-advised to rush into litigation prior to having the bill of costs

taxed.

11
Malcolm Lyons and Munro v Abro, 1991 (3) SA 464 (W), 469 E – F, quoted with approval in Blakes
Mphanga supra, 241, para [18]
12
Blakes Mphanga supra, 241 – 242, para [18]
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[14] In the circumstances, it is unnecessary to deal with the further arguments

raised by counsel at the hearing of this matter. I accordingly find that the plaintiff,

having failed to bring his claim within the ambit of Rule 32 (1), is not entitled to

summary judgment.

[15] In the circumstances, I make the following order:

1. Summary judgment is refused and the defendants are granted

leave to defend the action.

2. The costs of this application are to stand over for determination at

the trial of this matter.

__________

CORBETT, A.J

ON BEHALF OF THE PLAINTIFF:

Adv. C Mouton

Instructed by Conradie & Damaseb

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ON BEHALF OF THE DEFENDANTS:

Adv. T Wylie

Instructed by Neves Legal Practitioners