THE HIGH COURT OF SWAZILAND
Case No. 689/93
the matter between:
Richard Schmidt Plaintiff
Luke Malinga Defendant
PLAINTIFF Mr. Khumalo
DEFENDANT No appearance
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.
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
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
is the extent of the defence as set out in the plea.
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
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.
defendant, in the counterclaim, does not request that judgment on the
claim be postponed until the counterclaim is determined.
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
exception is unopposed.
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.
far as the counterclaim is concerned, it is open to a
to make such a claim conditionally upon the failure of his plea: see
rule 24 (5) of the High Court Rules.
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
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.
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.