IN THE HIGH COURT OF SOUTH AFRICA
(TRANSVAAL PROVINCIAL DIVISION)

DATE: 13/02/2008
CASE NO: 15760/06
UNREPORTABLE

In the matter between:

MOLEFE ATTORNEYS							         Plaintiff  

and

PHAAHLA MAFORE VINCENT						    Defendant

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JUDGMENT
________________________________________________________________

MURPHY J

1.	The plaintiff claims by means of provisional sentences from the defendant the amount of R245 346,01 together with interest at 15,5% per annum from 22 August 2006 to date of payment.

2.	The alleged liquid documents upon which the plaintiff seeks provisional sentence are three bills of costs taxed and allowed by the taxing master on 22 August 2006 in the amounts of R76 604,10; R151 508,68; and R17 233,23 totalling the amount claimed in the provisional sentence summons.
3.	The bills of costs are in respect of services rendered by the plaintiff, a practising attorney, in two separate applications, and an ensuing appeal in a dispute involving the removal of the defendant from an executive position in NAFCOC, a business organisation.

4.	Previous attempts by the plaintiff to collect on the bills of costs have been marred by errors and unsatisfactory outcomes.  Thus a previous provisional sentence has been rescinded; and on another occasion the matter was postponed to afford the plaintiff an opportunity to amend the provisional sentence summons.  The defendant subsequently objected to the amended summons, but there is no notice of objection on the court file, and it is not clear whether the amendment can or should be adjudicated upon.

5.	This sorry state of affairs has led to a plethora of disputes between the parties.

6.	I do not propose to canvass all the issues in dispute because I am of the view that provisional sentence should not be granted because the bills of costs do not constitute liquid documents.

7.	Provisional sentence normally can be granted on a bill of costs.  However, a bill of costs is not a liquid document until it is taxed, and provisional sentence will only be granted on a properly taxed bill provided due notice of taxation in terms of rule 70(4) has been given to the other party.  Where notice of taxation is not given, provisional sentence will be refused - De Wet v Meyer (1834) 1 Menz 59.  The defendant therefore had the right to be notified that he was entitled to be present at the taxation.  If he was not notified, the bills of costs will not constitute liquid documents.  Where the taxing master has attached his allocatur to a bill, the court should assume that the defendant was notified or that due notice was given until the contrary was proved.  The onus in such event being upon the defendant - Van Scharrel v Siyo 1917 EDL 283.

8.	In his answering affidavit opposing provisional sentence the defendant avers that he did not receive notice of taxation and had no knowledge of the taxation that took place on 22 August 2006.

9.	According to the plaintiff he effected service of the bills of costs and the notice of taxation, informing the defendant of the date of taxation, by the sheriff.  The sheriff’s return of service discloses that on 7 August 2006 at 16h00 the sheriff affixed a copy of the notice of taxation to the main gate of the defendant’s residence.  Other attempts at service had been made on five previous occasions in the period of 2 - 7 August 2006.  The defendant could not be found.  The plaintiff then instructed the sheriff to affix the documents to the main gate of the premises because he could not gain access to affix the documents to the main door of the house.

10.	When no response was forthcoming, the plaintiff went ahead with the taxation in the absence of the defendant and apparently satisfied the taxing master that due notification had been given.

11.	The defendant averred that he was in Limpopo on business during the first and second weeks of August 2006 and that neither he nor any members of his household received the notification.  For security reasons he has fortified his home deliberately to prevent access by strangers to the main door of his house.  The residence does not have a door bell or intercom at the main gate, so that only persons with prior appointments can gain access.  He stated further that at the time he had a standing arrangement with his current attorney of record to receive processes and notices on his behalf, of which the plaintiff was at all relevant times aware.  Moreover, the plaintiff had sought to tax the bills and execute upon them on a previous occasion.  This prior attempt also led to a dispute about taxation without notice resulting in the process being set aside by Jordaan J.  The defendant in para 9.15 of his affidavit concludes:

“The Plaintiff nevertheless, after all the said communication traffic prior to August 2006 between him and my attorney of record…., well knowing the history of events and my desire and legal battles to be informed of the taxation, did not inform my attorney of record of the taxation date and neither contacted him to determine whether I knew of the then pending taxation and neither did so the day of the taxation.  I respectfully submit that the taxation was done with unacceptable motives.”

12.	The plaintiff does not, in my opinion, deal adequately with this specific allegation in reply.  He offers no explicit explanation for his not having served the notice on the defendant’s attorney.  Nor does he unequivocally rebut the defendant’s averment that he did not in fact receive notification.

13.	The plaintiff addresses the lack of notification in three respects.  Firstly, he suggests he was entitled to instruct the sheriff to affix the notice to the gate because he had exhausted all other avenues.  Secondly, he intimates that the defendant’s attorney had acquired informal knowledge of the taxation prior to the event.  And thirdly, he claims the issue of due notice is res judicata.

14.	Rule 4 of the Uniform Rules does not make provision for service of any process against an individual by affixing a copy of the process to the outer main gate of the premises.  Service must normally be upon the person personally or may be affected by leaving a copy of the process with a responsible person over the age of 16 at the party’s residence or place of employment; or at a domicilium citandi et executandi.  In the case of an artificial person if the sheriff is unable to serve on an employee willing to accept service, it is permissible to affect service by affixing a copy to the main door of the company’s registered office or principal place of business - rule 4(1)(a)(v).  Rules 9(5) and (6) of the Magistrate’s Court Rules, by contrast, do permit service by affixing a copy to the outer principal door or security gate in particular circumstances.  That such service has not been provided for in the High Court rules must be understood to be in consequence of the more serious and costly nature of High Court proceedings.

15.	I am accordingly of the view that service of the notice contrary to the provisions of rule 4 was not proper service and the defendant was neither in law nor in fact properly notified of the taxation.  The plaintiff ought to have overcome the problem of service by means of an application for substituted service in terms of rule 4(2).

16.	The plaintiff made something of the fact that the defendant’s attorney may have had some knowledge of the taxation prior to it taking place. He refers in particular to a letter dated 23 August 2006 in which reference is made to a prior conversation between the defendant’s attorney and the sheriff in which the latter indicated to the attorney that he would issue a return of “non-service.”  While that may or may not indicate that the attorney was aware of the intended taxation before it happened, the attorney’s comment seems to suggest he was of the view that the taxation would not proceed for want of due notification.  In which event, one can hardly regard such knowledge as due notification to be imputed to the defendant.

17.	The point of res judicata is also without merit.  The plaintiff maintains that in prior proceedings Webster J refused to set aside the taxation proceedings and thus dealt with the issue of notification.  Defendant earlier successfully brought an application to set aside a provisional sentence granted by Hartzenberg J on 17 October 2006.  The same notice of motion also sought an order that the bills of costs be declared as not representing liquid documents and further that the taxations of 22 August 2006 be set aside.  On 20 November 2006 Webster J granted orders setting aside the provisional sentence of 17 October 2006, directing the filing of replying affidavits within 10 days and reserving costs.  Without much elaboration upon why, the plaintiff contends that the judgment of Webster J should be construed as having effectively dismissed the relief in relation to the taxation and the status of the bills of costs.

18.	Before a plea of res judicata can succeed there has to be a final judgment dealing with the eadem petendi causa and the eadem res between the parties.  No judgment by, or transcript of the proceedings before, Webster J is annexed to the plaintiff’s replying affidavit.  The order of Webster J makes no reference at all to the other prayers and it may be that he considered these matters appropriate for adjudication only once further affidavits were filed.  Accordingly, there is insufficient basis upon which to uphold a plea of res judicata.

19.	Given then that there was not proper service, and accepting further that the defendant did not in fact have notice of the taxation, the defendant has discharged the onus to prove that due notice was not given. Consequently, despite the taxing master’s allocatur, the bills of costs do not constitute liquid documents.  The plaintiff is therefore not entitled to provisional sentence upon them.

20.	This court is not entirely without sympathy towards the plaintiff in that the defendant’s plea on the merits appears doubtful at best.  Normally where provisional sentence is refused on the ground that the document sued upon is not a liquid document the summons cannot stand and the defendant is entitled to his costs - Barclays National Bank Ltd v Wollach 1986 (1) SA 355 (C) at 359.  When one gets past all the technical flaws to the substantive matters, in this case, the defendant’s only defence of substance is that he is not liable for the costs on the ground that when he sued NAFCOC for dismissing him from his executive position he sued them in a representative capacity on behalf of a provincial structure of NAFCOC, despite his seeking personal reinstatement.  I hesitate to comment on the merits at this stage beyond saying that a defence of this order may yet prove difficult to sustain.  For that reason, although provisional sentence must be refused and the provisional sentence summons cannot stand in the principal case, this is not, in my judgment, a case where a final decision on the question of the costs of these proceedings should be made at this stage - see Schoeman v Demezieres 1981 (4) SA 401 (C) at 403 B.

21.	In the result, the following orders are made:

a)	The claim for provisional sentence is refused.

b)	Costs are reserved for determination in any proceedings which the plaintiff may see fit to institute founded upon his claim for costs against the defendant arising from the bills of costs placed before the taxing master on 22 August 2006 under case numbers 26466/2003, 22118/2003 and A937/2004.  If no such proceedings are instituted by the plaintiff within three months hereof then the plaintiff is ordered to pay the costs of these proceedings.

JR MURPHY
JUDGE OF THE HIGH COURT
TRANSVAAL PROVINCIAL DIVISION

Date Heard: 17 August 2007
For the Applicant: Adv M Snyman, Pretoria
Instructed By: Molefe Attorneys, Pretoria
For the Respondent:Adv T Botha, Pretoria
Instructed By: Hattingh & Basson Inc., Pretoria