Schmidt v Malinga (NULL) [1994] SZHC 8 (14 February 1994);



Civ. Case No. 689/93

In the matter between:

Mr. Richard Schmidt Plaintiff


Mr. Luke Malinga Defendant

CORAM : Hull, CJ.


FOR DEFENDANT No appearance

Order (14/2/94)

In this action the plaintiff seeks to recover from the defendant, who was formerly his attorney, a sum of E10,000 admittedly paid in the first instance to the attorney on trust as a deposit by a purchaser on immovable property being sold by the plaintiff.

The defence, as set out in the plea, is that after the agreement for sale was made (i.e. between the plaintiff and the purchaser) and the deposit had been received by the defendant on behalf of the plaintiff and as his attorney, the plaintiff and the defendant then agreed that the money would be used as payment by the plaintiff to the defendant in respect of professional services rendered by him. The plea does not say whether this later agreement between the present parties was made in writing or orally. It does not say that a bill of costs has been rendered by the defendant to the plaintiff. It does aver that it was at some time


pointed out to the plaintiff's wife (presumably by or on behalf of the defendant) that the money "had been credited to the plaintiff's account with the defendant". It also includes a denial that any money became due and payable by the defendant to the plaintiff as alleged.

That is the extent of the defence as set out in the plea.

There is also a counterclaim. It is expressed as being in the alternative, and begins with the words "In the event that the ... court should find against the defendant, then the defendant files the following counterclaim:....."

In this counterclaim, the defendant claims payment of Ell 509 in respect of professional services allegedly rendered during the period 1984 - 1992 and avers that, notwithstanding demand, the plaintiff has failed to pay that amount to the defendant.

The defendant, in the counterclaim, does not request that judgment on the claim be postponed until the counterclaim is determined.

The plaintiff excepts to the plea and counterclaim on the grounds that the former does not disclose a defence and that the latter does not disclose a cause of action. He asks for them to be dismissed and for judgment in terms of his summons, or for further and/or alternative relief.

The exception is unopposed.

I agree that the plea does not disclose a defence. It does not go beyond an allegation that the plaintiff and the defendant made an agreement that the deposit would be applied towards legal fees. It does not allege that legal fees ever became due and payable.

As far as the counterclaim is concerned, it is open to a


defendant to make such a claim conditionally upon the failure of his plea: see rule 24 (5) of the High Court Rules.

I am not able to agree with Mr. Khumalo that the counterclaim does not disclose a cause of action. It amounts to an allegation that the plaintiff owes the defendant Ell 509 for professional services, which he has failed to pay despite demand. The plaintiff has not alleged that the counterclaim is vague and embarrassing, as such, though it is obviously one in respect of which the plaintiff might seek further particulars - i.e. as to the details of the services said to have been rendered.

I see no reason to allow the defendant an opportunity to file an amended plea. He has admitted in effect that the deposit was paid to him in trust for the plaintiff. The only remaining issues are whether the plaintiff and the defendant subsequently agreed that that money could be applied towards legal fees and, if so, whether any such fees are due and payable.

The orders I make are that the plea shall be struck out as not disclosing a defence and that judgment shall be entered on the plaintiff's claim as prayed in paragraphs (a), (b) and (c) of his particulars of claim. His costs are to include those of excepting to the plea. The counterclaim is to take its course.