BACKGROUND AND SUMMARY
|The High Court of South Africa, Gauteng Local Division (the “Court”) handed down judgment dismissing an application with costs made by the Applicant as material disputes of fact arose between the parties, and which could not be resolved on the papers alone.
The Respondent is an attorney and conveyancer and had on previous occasions acted for the Applicant in various matters. During January 2017, the Applicant sold a residential property. On 20 February 2017, the parties concluded a contract of mandate (the “Agreement”) whereby the Applicant mandated the Respondent to attend to the transfer and registration of the immoveable property into the name of the purchaser.
On 03 April 2017, the Applicant attended at the Respondent’s offices to sign the requisite transfer documents, during which she advised the Respondent that she would be sending her amended banking details closer to the date of registration. On 18 May 2017, the Applicant addressed email correspondence to the Respondent, informing her that she had changed bank account details and the Respondent should confirm these details before making payment of the proceeds from the sale of the immoveable property to the Applicant. As such, the following day, the Respondent addressed email correspondence to the Applicant requesting the new bank account details, to which, the Respondent received a response from who appeared to be the Applicant, confirming the Applicant’s new bank account details, attaching a confirmation letter from First National Bank, reflecting the same account details. On 22 May 2017, the Respondent confirmed that she had received the Applicant’s new bank account details and proceeded to electronically transfer the proceeds of the sale of the immoveable property in the amount of R711 063.00 to the Applicant’s new bank account, as provided for in the Applicant’s purported email correspondence.
It subsequently became apparent that there had been a fraudulent interference to the email correspondence between the parties, where a third party had managed to amend the bank account details of the Applicant, both in the Applicant’s email correspondence and confirmation letter from First National Bank.
The Applicant brought the application before the Court on the basis that, irrespective of whether the payment was innocently or negligently made to the third party, it was not made to the Applicant and as such, the Respondent remained legally obliged to pay the Applicant the proceeds of the sale of her immovable property. The Respondent’s stance, however, was that she was discharged of her obligations in terms of the Agreement, and, as such, she was no longer indebted to the Applicant.
A significant dispute of fact arose out of the application papers, pertaining to the Agreement concluded between the parties, being inter alia, which one of the parties breached the Agreement, whether the Respondent acted reasonably with the required diligence and skill of the average conveyancing attorney and without negligence and whether the Applicant breached a tacit term in the Agreement which placed an obligation on the Applicant to ensure that her electronic devises used in communicating with the Respondent were safe, secure and not susceptible to interception, manipulation and cybercrime and that she took all reasonable steps and precautions to ensure the safety of the electronic devices under her control.
At the outset of the hearing, the Court reminded the counsel for the Applicant that an application for the hearing of oral evidence or the referral to trial, as a rule, must be made in limine, however, counsel for the Applicant elected to argue the matter on the papers before the Court, and instead of addressing the Court in reply, subsequently applied for the hearing of oral evidence or referring the matter to trial.
The Court dismissed the application with costs despite the counsel for the Applicant’s belated request to have the matter referred to oral evidence, alternatively to trial. The Court held that an application for oral evidence, must, as a general rule, be made in limine, and, unless special circumstances exists, which in this case they do not, a court will not allow a deviation from this rule. As such, the Applicant was not permitted to apply, in the alternative, for the matter to be referred to oral evidence, as the Applicant’s main argument proved to be unsuccessful. The Court further held that, the factual disputes between the parties proved to be extensive, therefore, a referral to oral evidence on specified issues, would not have been suitable. The action procedure is required to effectively resolve the dispute between the parties. The Court quoted Harms DP in National Director of Public Prosecutions v Zuma 2009 (2) SA 277 (SCA), who said, “Motion Proceedings, unless concerned with interim relief, are all about the resolution of legal issues based on common cause facts. Unless the circumstances are special they cannot be used to resolve factual issues because they are not designed to determine probabilities”.
An application for the hearing of oral evidence must, as a general rule, be made in limine, and, unless the circumstances are exceptional, a court will not permit an Applicant to apply in the alternative for the matter to be referred to oral evidence should the main argument in the application fail.
Written by Courtney Altmuner and Jeannique Booysen