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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

IN THE HIGH COURT OF SOUTH AFRICA

(TRANSVAAL PROVINCIAL DIVISION)

CASE NO:24494/07

In the matter between:

PHASWANE CLIFTON MASEGARE PLAINTIFF

And

NAKEDI FRANS MOGALE H/A DEFENDANT

MATEBA LABOUR LAW PRACTIONERS

AND LEGAL PROTECTION

JUDGMENT

MABUSE A.J [1] This is an action for payment of money. In the first claim, the plaintiff claims from the defendant payment of a sum of R279000.00. Of the sum of R279000.00, R29600.00 is in respect of agreed fees the plaintiff had paid to the defendant for service to be rendered by the defendant to the plaintiff. According to the plaintiff the defendant failed to render the agreed service. The plaintiff's claim in this respect is therefore for refund of an amount he had paid to the defendant in order to enable the defendant to render certain legal services to him and which services the defendant failed to render. The rest of the claim consists of an amount that the defendant had undertaken to claim for and on behalf of the plaintiff against Iscor, which amount the defendant has failed to claim and which has, by reason of the defendant's negligence or otherwise, now become extinguished by reason of effluxion of time. In addition to claiming the payment of a sum of R279000.00, the plaintiff claims payment of interest on the said sum with effect from June 20, 2005 to date.

[2] The plaintiff's second claim is for payment of a sum of R4000.00 in respect of money he lent and advanced by him to the defendant at the defendant's special instance and request. Demand for payment of the said amount was made in writing by the plaintiff, through his legal representatives, to the defendant in a letter dated 15 May 2007. The plaintiff's legal representatives demanded payment of the said amount of R4600.00 within 14 days of the date of the said letter. The plaintiff has attached a copy of the said letter to his summons and the court has accepted it as exhibit "A". The defendant has failed to pay the said amount or any part of it within the prescribed time. Together with this claim for payment of a sum of R4000.00 the plaintiff claims interest a tempore morae.

[3]The plaintiff claims, in the third claim, payment of a sum of R23000.00 from the defendant, being in respect of the money that he, by agreement with the defendant, deposited into the defendant's bank account and which money the defendant was to pay over to Iscor, being payment in respect of a motor vehicle Isuzu 2.8 1994 model, which amount the defendant failed to pay over. In the fourth and final claim, the plaintiff claims payment of a sum of R60000.00, of which R15000.00 is in respect of agreed fees for arranging electricity supply business and the balance of R45000.00 in respect of the damages the plaintiff sustained in putting up a building in anticipation of the success of his application for electricity supply business.

[4] According to the file, the plaintiff's action against the defendant was defended. There was however no appearance for the defendant at the trial of the matter. A notice enrolling the matter for hearing on August 25, 2008 seems to have been duly served on the defendant's then legal representatives on January 30, 2008. On July 16, 2008 the defendant's then legal representatives served a notice of withdrawal from the above matter as the defendant's attorneys. It appears quite clearly from the said notice that the defendant was not informed in the said notice of their withdrawal of his attorneys. The matter had however been properly enrolled and the defendant was or should have become aware of the date of trial.

[5] The plaintiff proceeded to tender evidence in support of his claims and verified his causes of action. In support of his first claim, the plaintiff tendered a copy of a document dated 20 June 2005 by Mateba Labour Law Practitioners on whose behalf Nakedi Mogale signed. The said document was counter signed by Phaswane C. Masegare, whom I accept to be the plaintiff.

[6] It manifests quite clearly the existence of an:

"Agreement between Mateba Law Practitioners and Phaswane Clifton Masegare ID No: [redacted], of 20% commission fee from the Settlement amount once your case is settled".

This paragraph is in line with the plaintiff's pleadings. It was orally supported by the plaintiff in his evidence. In addition, the said document constitutes a report by the signature on progress in the matter. It contains, in addition, an acknowledgement by the signatories, of which the defendant is one, of payment by the plaintiff to them of a deposit of R1800.00. The plaintiff has claimed as part of the total sum of R279 000.00 refund of the said amount of R1800.00. The court accepted it as exhibit "B".

[7] According to the pleadings, the plaintiff had mandated by the defendant to claim on his behalf payment of a sum of R250000.00 from ISCOR at a CCMA hearing on 29 November 2005. The defendant failed to attend the hearing and the plaintiff was consequently unable to prosecute his claim against ISCOR for payment of the said amount. Consequently the plaintiff lost out R250000.00 now claims it as damages from the defendant. According to him if the defendant had attended the CCMA, and the defendant gave himself out as, labour law practitioner, he would have been successful in his claim against ISCOR and, in addition, would have been awarded R250 000.00. In the premises, so he contended, the defendant is obliged to pay him the sum that he would have been awarded by the CCMA, had the defendant attended CCMA.

[8] Included in the total claim is the sum of R800.00, which was paid by the plaintiff to the defendant as the defendant's traveling costs to Johannesburg. The plaintiff claims refund of the said amount of R800.00 ground that the defendant did not travel to Johannesburg. He did not therefore use the amount of R800.00 for the purpose it was paid and in the circumstances the defendant is obliged to refund it to him.

[9] The plaintiff demanded further from the defendant payment of a sum of R27000.00 being for legal costs he had paid. This was a fee for attending CCMA. The defendant called this amount his legal costs. The plaintiff duly paid the said amount to the defendant but the defendant failed to render the agreed service and unjustifiably retained the said amount. In view of the fact that the defendant failed to represent the plaintiff at the CCMA, he is obliged to refund the money. Although the total of the plaintiff's claim is R279 600.00, the plaintiff has only claimed payment of a total sum of R279000.00.

[10] According to the summons and further according to the evidence of the plaintiff on the 16^th November 2005, the plaintiff lent and advanced a sum of R4000.00 to the defendant at the defendant special request and instance. The said amount, being a loan, was refundable. In a letter dated 15 May 2007, the plaintiff, through his legal representatives, demanded refund of the said amount from the defendant. Despite being given a period of (14) fourteen days from the date of the said letter to refund the sum of R4000.00, the defendant has failed to refund it. In a document signed on 16 September 2005 a Mr Mogale, whom I assume to be the defendant, undertook to deposit the said amount of R4000.00 within 21 (twenty-one) days, presumably of 16 September 2005. The court has accepted this document this document as Exhibit "C". Despite the lapse of time the defendant has failed to refund the said amount and remains in default. In the premises an obligation continues to exist for the defendant to refund the plaintiff the said amount.

[11] According to his evidence, and this relates to the plaintiff's third claim, on October 28, 2005, the plaintiff deposited into the defendant's bank account, a sum of R23000.00, as agreed. It agreed between the plaintiff and the defendant, inter alia, that the defendant would use the whole mount of R23000.00 to pay off the balance of the purchase price of a motor vehicle, a red Isuzu 2.8 1994, model. The said amount was supposed to be paid to the seller, ISCOR. The defendant failed to pay the said amount over to ISCOR. As a consequence of such a failure, the plaintiff withdrew his mandate to the defendant to pay the said sum of R23000.00 to ISCOR and demanded that the defendant should pay it back. The defendant has, notwithstanding such a demand, refused and or neglected and or failed to refund the said money to the plaintiff. As a result the said amount is due and payable by the defendant to the plaintiff.

[12] In respect of his fourth claim, the plaintiff verified his claim that on October 28, 2005 he and the defendant entered into an agreement in terms of which would the defendant would, for a fee of R15000.00, apply for an electricity supply business and negotiate a transaction for him with the supplier of electricity. He duly paid the defendant the sum of R15000.00 as evidenced by a letter dated 28 October 2005 signed by Nakedi Mogale, in which it is stated that:

"This is to confirm that Mr Mogale took the amount of R 15000.00 to organise the for electricity. Mr Mogale was to coordinate the transaction to make show that Masegare operate that business. Hope you will find this in order". This document was accepted as exhibit "D".

[13] In anticipation of the success of his application for the electricity supply business and of the negotiations between the defendant and the supplier of electricity, the plaintiff incurred expenses in the total amount of R45000.00 in putting up a building from which he had intended conducting his business.

[14] The defendant failed to execute the plaintiff's mandate. The plaintiff subsequently cancelled the agreement and demanded a refund of the sum of R15000.00, together with damages of R45000.00 being in respect of the expenses he had incurred in putting up the building he had intended using for the business. During the course of his evidence the plaintiff abandoned the claim for payment of the sum of R45000.00. The defendant is obliged to refund the plaintiff the sum of R15000.00 that the plaintiff had paid him.

[15] The defendant special plea has no merit. The defendant raises a special plea of misjoinder and stated that the plaintiff sued a natural person whereas he had contracted with a Close Corporation. In the first place is clear from Exihibit "A" that there is no reference in the said document that Mateba Labour Law Practitioner is a Close Corporation. There is no evidence that Mateba Labour Law Practitioner is a legal person. Secondly there is nothing in the said document Exhibit "A" that Nakedi Mogale, was acting for and on behalf of the said Mateba Labour Law Practitioner or on behalf of any Close Corporation. It will be a travesty of justice if the court were to entertain such flimsy defences as the defendant's special plea. This court's primary duty is to dispense justice between man and man. As for the rest of the defendant's plea, I am of the view that the plaintiff has proved his claims against the defendant and that he ought to succeed. Wherefore I make the following orders;

Claim 1.

1. The defendant is hereby ordered to pay the plaintiff the sum of R276,900.00 and interest on the legal rate on the said sum reckoned from 20^th June 2005 until date of full payment. Claim 2.

1. The defendant is hereby ordered to pay the plaintiff the sum of R4000.00 and interest at legal rate on the said sum a tempore morae.

Claim 3.

1. The defendant is hereby ordered to pay the plaintiff the sum of R23000.00 and interest on the said sum at the legal rate a tempore morae.

Claim 4.

1. The defendant is hereby ordered to pay the plaintiff the sum of R15000.00 plus interest at the legal rate a tempore morae.

2. The defendant is hereby ordered to pay the costs of this action.

3. The plaintiff is hereby granted leave to uplift the original documents of the exhibits tendered as evidence for the purpose of this matter.

MABUSE AJ

APPEARANCES

Plaintiff's Counsel : Mr Brooderyk

Plaintiff's Attorneys : RNB Attorneys

Defendant's Counsel : None

Defendant's Attorneys : None

Date of Hearing : 23 August 2008

Date of Judgment : 22 October 2008.

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