REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO: 00453/2016

(1)	REPORTABLE: YES/NO 
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED

_________                      ______________________
Date: 			WHG VAN DER LINDE 

In the matter between:

MENDELOW-JACOBS ATTORNEYS                                                                                                           Plaintiff
and 
TSHINETISA SYNDEY MUTUPE                                                                                                            Defendant

JUDGMENT

Van der Linde, J:

[1]	This is an action for provisional sentence based on an acknowledgment of debt dated 31 January 2014 for R136, 712.65 and interest. The underlying cause is for payment of fees and disbursements for professional services rendered as an attorney. The defendant, who appears in person, does not have money now to pay the claim; and resists payment because he wants the claim taxed by the Taxing Master. He contends specifically that part of the asserted indebtedness is an invoice for R118, 730.98, dated 31 March 2014, and raised ostensibly on 20 March 2014 for “To our further fee as discussed.” He disputes this.
[2]	In further heads of argument the plaintiff was asked to and in fact dealt with two issues: whether clause 5 of the acknowledgement of debt has the consequence of the entire document having to be struck down; and whether Twee Jonge Gezellen (Pty) Ltd v Land and Agricultural Development Bank of South Africa t/a The Land Bank does not have the consequence that in this instance the provisional sentence procedure is unconstitutional.
[3]	On the first issue: the clause in question here provides as follows:
       “5. Certificate of balance
The Debtor agrees that a certificate signed by any partner of (sic) the time being of Mendelow Jacobs Attorneys, specifying the amount owing by him under this Acknowledgment and stating that such amount is due owing and payable by him to the Creditor, shall be sufficient proof that the amount is due, owing and payable for the purpose of obtaining Provisional Sentence or any other Judgment against the Debtor.” 

[4]	Clauses such as these, whereby the debtor is bound by a certificate furnished by the creditor, have long been struck down by our courts, as being void.  The defendant did not raise the invalidity of the clause, but he was appearing in person and cannot be expected to have been aware of the legal position on this score.
[5]	 Accepting then that the clause falls to the ground, what remains of the rest of the acknowledgment? The plaintiff submitted that clause 5 should be severed from the rest of the instrument “insofar as that can be done without doing an injustice to the parties.”  This does of course beg the question.
[6]	Sasfin  held that the court did have the power, under the principle of severability, within an instrument as a whole to sever the objectionable clauses from those that were unobjectionable, thereby preserving the enforceability of the balance of the instrument.  Whether this power should be exercised in a particular instance would depend on the intention of the parties and, in particular, whether it could be said that that which would remain after severance would still represent that which the parties had agreed upon.
[7]	I prefer not to reach a firm view on this issue, because it seems to me that the second, constitutional, issue is more problematic for the plaintiff. In this regard the plaintiff submitted that Twee Jonge Gezellen is not applicable, since the defendant has failed to raise any defence at all. 
[8]	I am not sure that it can be said that the defendant raised no defence at all. True, the defendant did not put up an affidavit, but he filed a comprehensive plea supported by documents, and appeared personally in court. He freely answered questioned put to him by the court. Moreover, I asked counsel for the plaintiff, when the latter relied on the defendant’s admission in the defendant’s plea (which the plaintiff submitted the defendant had no right to file), whether the court may have regard to the defendant’s plea; the answer was in the affirmative.
[9]	That plea raises a dilatory defence, namely an insistence on taxation by the Taxing Master. But it does so with reference to an invoice in a substantial amount which it challenges. That defence is one in respect of which the defendant would not have been able on affidavit to have shown a balance of probabilities in his favour. 
[10]	It seems to me that the ratio decidendi of Twee Jonge Gezellen has application for the following reason. That case held the rule 8 procedure unconstitutional in particular circumstances:
“[50] In the light of these considerations, I hold that the provisional sentence procedure constitutes a limitation of a defendant’s right to a fair hearing in terms of section 34 where:
(a) the nature of the defence raised does not allow the defendant to show a balance of success in his or her favour without the benefit of oral evidence;
(b) the defendant is unable to satisfy the judgment debt; and
(c) outside “special circumstances”, the court has no discretion to refuse provisional sentence.
[51] I must make it clear though that the limitation occurs only where two lines intersect on the defendant’s case.  The first line is that the nature of the defence raised does not allow the defendant to show a balance in his or her favour without the benefit of oral evidence. The second line is that the defendant is unable to satisfy the judgment debt. Absent either one of these lines the provisional sentence procedure will not limit the defendant’s right to present his or her case, and thus the right to a fair hearing, in any way.  If the nature of the defence allows a balance in favour of the defendant to be shown on affidavit, inability to pay the judgment debt does not matter, since provisional sentence will be refused.  If, on the other hand, the defendant can pay, it does not matter that the defence can be established only with the benefit of oral evidence. The defendant will have that opportunity, after paying, when he or she presents the defence during the principal case. The defendant will be no worse off than the plaintiff whose application for provisional sentence is refused. Though it may give rise to inconvenience, his or her right to a fair hearing will eventually be given effect to in the principal case.”

[11]	I appreciate that the defendant’s defence here is, by definition, not a complete defence. But there is potentially a defence at least to the extent that the taxed fees and disbursements are less than the agreed fees and disbursements. If the focussed attack on the contentious invoice is sound, the difference may be substantial. That potential defence cannot be illustrated on affidavit to favour the defendant, and this matter would in my view thus fall within the category identified by Brand, AJ. 
[12]	I would add that it does seem that the court has a discretion, apart from the constitutional issue and in any event, to refuse provisional sentence where fairness and the prevention of injustice require it:
“[46] And in Mao-Cheia v Neto,50 the court refused provisional sentence on the basis that “this is a matter in which justice would be better done between the parties if I should exercise my discretion in favour of [the defendant]”. The considerations underlying the exercise of a discretion in favour of the defendant in “special circumstances” are therefore fairness and the prevention of injustice.”

[13]	I am not comfortable with a disinclination on the part of a legal practitioner to have his or her fees and disbursements taxed. I accept that sometimes clients may simply be seeking to delay payment, but here the invoice that is challenged does not specify services rendered, and refers to a discussion between the parties.
[14]	I appreciate too that there is potentially a riposte by the plaintiff that the defendant has waived his right to refer the bill to taxation, by agreeing to the acknowledgement of debt. But waiver has not actually yet been raised; and if it were, it will engage topics such as whether the right to insist on taxation is in fact capable of being waived.
[15]	In the result I make the following order:
(a)	Provisional sentence is refused.
(b)	The defendant is directed to file its plea within ten court days.
(c)	Costs are reserved.
WHG van der Linde
Judge, High Court
Johannesburg

For the plaintiff: Adv. M. Cajee
Instructed by: Mendelow- Jacobs Attorneys
Unit 8C, 1st Floor
3 Melrose Boulevard
Melrose Arch
Johannesburg
Tel: 011 530 9200
Ref: A Jacobs/tg/MAT3142

For the defendant: In person

Matter argued: Friday, 03 March 2017.
Judgment: Tuesday, 07 March 2017.