CASE LAW UPDATE

Facts: Following a tender process, the applicant was the successful tenderer in respect of a tender issued by the respondent. The contract consequently concluded between the parties was for the completion of a road. A site handover agreed to by the parties to take place was cancelled by the respondent resulting in the site not being handed over in an apparent repudiation of the contract which repudiation was not accepted by the applicant. After this impasse the applicant caused summons to be issued against the respondent seeking an order for specific performance in terms of the contract. This action is pending. The respondent published a new tender for the completion of the same work under the first tender.

Application: Urgent application for interim interdictory relief brought in the wake of the respondent putting out to tender the work and scope of a contract to construct a road within its geographic area against the common cause reality that that very contract was previously awarded to the applicant. The relief is sought pending the determination of action proceedings brought by the applicant in which the applicant as plaintiff seeks to enforce specific performance in terms of the contract against the respondent as defendant.

Discussion: The applicant submits that the right it seeks to protect arises from the contractual relationship between it and the respondent. There is no dispute that the parties entered a contract and that to date that contract subsists. There is equally no dispute that the intended new tender is for the same scope of work for which the two parties are contracted. There is no evidence remotely suggestive of the respondent having resiled from or withdraw from the contract. Counsel for the respondent had to concede that the respondent never communicated any pull out from the contract. On the respondent's own version, the contract is still in place. The applicant has a prima facie right. The applicant submitted that should an interim interdict not be granted it will suffer from the consequent appointment of new parties to perform work for which it has already been appointed. It argued that the failure to protect, at least in the interim, the sanctity of its contract with the respondent would subject it not only to commercial loss but will by extended reasoning erode its right of access to courts for meaningful effective relief as its specific performance-geared pending action will become moot.

Findings: It is uncalled for and callous in the extreme for a state organ to defend its possibly irregular and unlawful conduct by openly advocating a preparedness to spend monies irregularly and fruitlessly from the public purse by paying for the same services twice. Should the interim relief sought not be granted the applicant will suffer irreparable harm. So too will the public purse. The interest of justice favours the granting of the interim interdict more than it does the dismissal thereof. The continued availability of a damages claim in law does not constitute an alternative remedy for the applicant. The applicant does not have an alternative remedy to the interim interdict it currently seeks. The applicant has satisfied all the four requisites of an interim interdict.

Order: The respondent is interdicted and restrained from continuing with the public tender process for the completion of the Mabusela and Masoge roads and stormwater project.

MONENE AJ

Facts: The applicant (VL) and the respondent (MV) met in August 2019, and after a whirlwind romance, they became engaged to be married in December 2019. Shortly before their child was born, the parties travelled to Italy for the birth of their son, L, who was born in Italy. They travelled extensively between their home in Lausanne, later in Geneva, and Rovere in Italy, as well as to France. MV wished to travel to South Africa to attend her brother’s birthday, so the parties decided to make a holiday of the trip. A routine Covid-19 test revealed that MV had tested positive for Covid, and she remained behind with L while VL travelled back to Geneva. Once VL had returned to Europe, MV’s misgivings about her relationship with VL grew apace. It eventually became clear to VL that she had decided not to return to Geneva. Having realized that VL might seek a court order to return L to Europe, MV brought an ex parte application seeking full parental rights and primary care of L, an order for VL to have limited contact rights with L, and for other ancillary relief. The order was granted. VL was involved in a motor vehicle accident. MV took him to hospital. While VL was being treated for his injuries, MV came across Whatsapp messages between VL and his mother that revealed that VL had hatched a plot to kidnap L and to remove him to Europe via Botswana. MV then sought a variation of the original ex parte order to limit VL’s contact with L even further. That application is still pending.

Application: VL launched this application for L’s return to Switzerland, in terms of the Hague Convention on the Civil Aspects of International Child Abduction. VL had also applied to the Swiss Central Authority for their assistance in having L returned to Switzerland. The main issues for determination are, firstly, whether VL has parental rights in respect of L, secondly, whether L was habitually resident in Switzerland. Thirdly, if it is held that L was habitually resident in Switzerland, whether he has been wrongfully retained in South Africa or whether VL acquiesced in his retention. Fourthly, if L were to be returned to Switzerland, whether he would be exposed to undue harm or intolerable circumstances, and finally, whether the court should exercise its discretion to return L to Switzerland.

Discussion: VL insists that he had always demanded that MV and L should return to Switzerland. The messages between the parties do not support his version. From the snippets of conversation, it does not seem as if even VL believed that L was supposed to reside in Switzerland. It is more likely that VL wanted L to live in Rovere, where he could see him regularly. That belief is supported by the report of the curatrix ad litem, Adv Fitzroy, who interviewed VL. He told her that he wanted L to be returned to Rovere under MV’s care where they would not be controlled by her father, and where his parents could assist MV in caring for L. VL could then visit L every weekend. VL also said that if L were to be returned to Switzerland, he would have to obtain different employment in order not to travel as often and to be able to care for L. Even though MV was due to return to Europe after her brother’s wedding, it has not been established that she intended to return to Geneva. Her air ticket was booked for Rome. The parties had not settled the purpose of residing in Switzerland. MV did not intend to remain there unless VL married her, a prospect that had become bleaker as time went by. Therefore, L was not habitually resident in Switzerland at the time of his removal to South Africa.

Findings: It is common cause between the parties that L must remain primarily in MV’s care. There is no evidence to suggest that if L is returned to Europe with MV that he would be at grave risk of harm. However, removing him from MV’s care would cause the child serious emotional harm. It follows that if L were to be returned to Switzerland, MV would have to be placed in a position to return with him. That is practically impossible given the fact that MV does not have permanent rights of residence in Switzerland. One would have to order VL to assist MV in obtaining a residency permit, which may not be possible. VL would also have to be ordered to provide for MV and VL, in the form of a place to reside and maintenance. The court made orders in respect of payment for the services of the curatrix. VL has blatantly refused to comply with the order. VL has no regard for court orders, even going as far as hatching a kidnap plan to remove L from South Africa in defiance of the court order. VL’s conduct has been appalling, and the court has no confidence that he would comply with any condition imposed on MV’s return to Switzerland.

Order: The application is dismissed.

SWANEPOEL J

Facts: The appellant and the respondent were previously married in community of property in accordance with the customary laws of the Pedi culture. The marriage was never registered. The appellant instituted divorce proceedings. The respondent failed to enter an appearance to defend, and a decree of divorce was granted, and the parties’ joint estate was ordered to be divided. The order was granted in the absence of the respondent. As the joint estate could not be divided, the appellant then brought an application to appoint a liquidator, which was granted. The appellant launched an application to clarify the order. The joint estate was no closer to being divided than two years prior. According to the appellant the reason for this is twofold: firstly because of the respondent’s obstructive conduct, and secondly because of the vague way the order frames the division of the joint estate. The details of the respondent’s pension fund were not reflected in the order and accordingly the GEPF could not (or would not) pay out.

Appeal: The only way to ensure proper execution of the order was to clarify paragraph 2 of the order. The appellant launched an application to vary the order. In refusing the application for variation, the court a quo stated that the respondent had discharged the onus of showing factual undue benefit by the applicant if the forfeiture order was not granted. The appellant appeals against the order dismissing the application for variation of a decree of divorce in which division of the joint estate was ordered.

Discussion: The court investigated the respondent’s version for its determination of whether the variation application should be granted. It conducted an excursus on the issue of “whether the applicant will be unduly benefitted if an order of forfeiture is not made or whether forfeiture of the benefits arising out of the marriage in community of property should be granted.” This it was not permitted to do for two reasons. Section 9(1) of the Divorce Act 70 of 1979 is only applicable when a decree of divorce is granted; and the application for recission was withdrawn by respondent. Thus, the only application before the court a quo was the one to vary the order for division of the joint estate to give proper effect to section 7(7)(a), as read with section 7(8) of the Divorce Act, as read with section 37D of the Pension Fund Act. The respondent also misconstrued the purpose of the application. Its argument that the application is late is premised on an argument that the variation is sought in terms of Rule 42. But it is not, it is sought to give proper effect to its terms.

Findings: The respondent had two previous opportunities to contest the relief sought. Summons was served personally, and she failed to enter an appearance to defend. She similarly failed to defend the application to appoint the liquidator. A court may only interfere with a decision in the event of a demonstrable and material misdirection of law or fact. That is what occurred. The court a quo was not at liberty to delve into the issue of whether an order of forfeiture should have been granted and to use this as a basis upon which to dismiss the application. In doing so, it misconstrued the actual application before it, and impermissibly granted the respondent relief to which she was not entitled through a backdoor. There is no ground upon which a court can conceivably refuse relief to which a party is entitled ex lege.

Order: The appeal is upheld with costs. Clause 2 of the court order of 3 May 2018 is amended.

NEUKIRCHER J (MILLAR J and KOOVERJIE J concurring)

Facts: The plaintiff provided professional services as counsel, representing the RAF, and on the brief and instructions of the respondents. Their relationship operated for four years. During the subsistence of their contractual relationship, the respondents made a practice to pay the plaintiff every four to five months, for the services he would have provided in various RAF matters over time. According to the respondents, they operated on the widely accepted practice among legal practitioners that litigation in RAF matters invariably proceeded with massive delays, thereby affecting payment of fees that would be due to legal practitioners. The respondents contended that the applicant was always aware that he would receive his fees when the respondents received payments from the RAF. The respondents also contended that due to non-payment or delays in payment of fees by the RAF, in one instance, they also concluded a settlement agreement in terms of which they resolved to pay some of the money to the applicant.

Application: The applicant claims payment of R1,392,973.20 in full and final settlement of all his outstanding invoices, with interest. The amount claimed being the total sum of fees accumulated in 30 matters. The applicant claimed that the respondents refused or neglected to pay the fees that were due to him, in contravention of the code of conduct that regulates the relationship and or payment of fees, between counsel and briefing legal practitioners. The respondents raised points in limine regarding the non-joinder of the RAF and lis pendens.

Discussion: The subject matter of the application relates to outstanding payments for work done in litigation against the RAF. The respondents submitted that the RAF had a significant interest in the outcome of the application and should have been joined. The respondents averred that there is a pending litigation, on the same cause of action, with the same parties, seeking the same relief. The applicant elected not to engage with these allegations. They remained unchallenged. Upon close examination of the relationship between the parties, they enjoyed a mutually beneficial business relationship over a period of four years. They had an understanding on how briefs were sent and accepted and how payments would be made for services rendered. This fact is evident in the settlement agreement in which the applicant accepted payment of R170,000 as part payment of his fees.

Findings: The dispute arose when the applicant got agitated for payment outside the standing agreement and the long-standing terms of engagement. The applicant has not provided any basis upon which it should be permissible for him to resile from the settlement agreement. The applicant has also not established grounds upon which the long-standing manner of engagement should be abandoned or set aside in favour of compliance with the provisions of the LPC Code of conduct on how he ought to have engaged with the respondents. There has been no credible evidence to suggest that the applicant was not a willing participant or that he was coerced in the manner in which he engaged with the respondents. The applicant has failed to establish a case that entitled him to the relief sought. The applicant has fallen short of establishing the respondents’ alleged breach of Rule 7.8. of the General Council of the Bar of South Africa: Uniform Rules of Professional Conduct, which prohibits the instructing attorney and counsel from agreements that counsel would await payment of the fees payable on that brief until the attorney shall have received them from the lay client.

Order: The point in limine raised by the respondents on the non-joinder of the RAF is upheld. The point in limine raised by the respondents, namely, lis pendens is upheld. The application in terms of the notice of motion is dismissed with costs.

SIPUNZI AJ