BNC Projects (Pty) Ltd v Swanepoel Van ZKL Attorneys and Another (25/218212) [2025] ZAGPJHC 1317 (19 December 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 1317 | Noteup | LawCite sino index ## BNC Projects (Pty) Ltd v Swanepoel Van ZKL Attorneys and Another (25/218212) [2025] ZAGPJHC 1317 (19 December 2025) BNC Projects (Pty) Ltd v Swanepoel Van ZKL Attorneys and Another (25/218212) [2025] ZAGPJHC 1317 (19 December 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_1317.html sino date 19 December 2025 FLYNOTES: CIVIL PROCEDURE – Security – Release of client file – Compelling delivery against provision of security – Alleged that tendered amount fully protected interests pending taxation or agreement – Circumstances justified releasing file against security which must directly cover amount quantified on taxation – Monies held in trust constituted adequate security when coupled with clear directions that it be released to upon taxation. REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG Case Number: 25-218212 (1)  REPORTABLE: NO (2)  OF INTEREST TO OTHER JUDGES: NO (3)  REVISED: NO 19 DECEMBER 2025 In the matter between: B N C PROJECTS (PTY) LTD Applicant And SWANEPOEL VAN ZYL ATTORNEYS First Respondent VEOLIA WATER SOLUTIONS (PTY) LTD Second Respondent This judgmnet and the order incorporated herin is handed down electronically by circulation to the parties' legal representatives by e-mail and uploading to CourtOnline. JUDGMNET Moultrie AJ [1]  The applicant, BNC Projects (Pty) Ltd is the erstwhile client of the first respondent, Swanepoel Van Zyl Attorneys. Prior to 18 August 2025, when Swanepoel terminated its mandate due to non-payment of invoiced legal fees, it represented BNC in ongoing arbitration proceedings in which BNC is the claimant. In this urgent application, BNC seeks an order requiring Swanepoel to release its complete client file in those proceedings to it. Swanepoel has declined to do so and opposes the application. Veolia Water Solutions (Pty) Ltd, the respondent in the arbitration, is cited as the second respondent, but does not oppose the relief sought. [2] For the purposes of this application, BNC accepts that Swanepoel is in principle entitled to assert a debtor-creditor lien over all of the documents comprising the file [1] on the basis of Swanepoel’s claim that the sum of R197,093.94 remains outstanding in respect of unpaid invoices for own-client fees and disbursements in the arbitration proceedings, and for which BNC disputes liability. [3]  BNC approaches this court for an order releasing the file from Swanepoel’s lien against provision of security. The security tendered by BNC is in the form of a monetary sum of R200,000 (i.e. slightly more than the amount claimed) that has been deposited into the trust account of its current attorneys, Pravda & Knowles. Pravda has furnished an undertaking to hold the sum in trust “pending taxation alternatively and/or agreement alternatively and/or an order of Court of any outstanding fees”. BNC alleges that the urgency arises from the fact that it needs the file for the purposes of resisting (or complying with any order that may be made in) an application that Veolia is pursuing in the arbitration proceedings to compel delivery of further and better particulars and discovery, failing which it risks having its arbitral claim dismissed. [4]  Apart from contending that “the urgency herein is self-created in all respects”, Swanepoel opposes the application on its merits because: a.       the dispute as to BNC’s indebtedness for the full amount of the claimed outstanding fees is an afterthought, manufactured for the sole purpose of delaying the inevitable in circumstances where BNC had previously conceded its liability; b.       “ the ostensible tender is made with mala fide intentions”; and c.       the security tendered is in any event inadequate to protect its legitimate interests because it requires the file for the purposes of undertaking the taxation of its account that BNC has requested, and which is a necessary precursor to the recovery of any amount from BNC. Urgency [5] The approach to be taken to urgent applications operates on the supple case-specific principle that “ practitioners should carefully analyse the facts of each case to determine, for the purposes of setting the case down for hearing, whether a greater or lesser degree of relaxation of the Rules and of the ordinary practice of the Court is required”, and that “the degree of relaxation should not be greater than the exigency of the case demands” but “must be commensurate therewith”. [2] A court considering urgency exercises a wide discretion. [3] [6] As Tuchten J observed in Mogalakwena the “primary investigation” is whether, absent at least some relaxation of the Uniform Rules and of the usually applicable procedures regarding the setting down of applications for hearing, the applicant would be prejudiced in the sense that it “could not be afforded substantial redress at a hearing in due course” as contemplated in Rule 6(12)(b). [4] [7] However, even if the court is satisfied as to the primary investigation, “other factors come into consideration”, including that raised by Swanepoel in its answering affidavit, namely whether there has been “ any delay by the applicant in asserting its rights” (i.e. “self-created urgency”). [5] While it is true that an applicant should not delay in approaching a court for urgent relief once it is clear that deadlock has been reached, a court should equally not penalise a litigant for attempting to resolve a dispute extra-curially while it appears that there remains a reasonable prospect of doing so. [6] [8] In the current matter, it is somewhat curious that BNC’s notice of motion sought an urgent hearing in the High Court in the urgent court week of Tuesday, 25 November 2025 given that, at the time that the application was launched on Friday, 14 November 2025, the compelling application was due to be heard, and potentially decided, on Wednesday, 19 November 2025. This apparent anomaly however proved to be of no moment because on 20 November 2025 (i.e. before the matter was heard before me), the arbitrator had postponed the compelling application sine die on the basis that BNC had indicated that it expected that that it would be able to comply with Veolia’s request should Swanepoel be ordered to hand over the file pursuant to this application. Notwithstanding this, the arbitrator emphasised that “this situation cannot continue ad infinitum ” and specifically ordered that “either party can enrol the application on notice to the other”. BNC’s counsel emphasised in argument that this could occur at any time, and I did not understand Swanepoel’s counsel to demur. [9] There was thus no serious dispute before me that BNC still urgently requires the contents of the file to properly oppose the compelling application (or comply with any order that may be granted therein) and that it remains in peril of having its arbitration claim dismissed should the file not be returned to it. In those circumstances, I do not think it would be appropriate for me to strike the matter from the roll on the basis of Swanepoel’s (unpleaded) argument that BNC had “not properly dealt with” the requirement in Rule 6(12)(b) to “set forth explicitly the circumstances which it is averred render the matter urgent and the reasons why the applicant claims that applicant could not be afforded substantial redress at a hearing in due course”. Courts should not unduly privilege form over substance in instances where this is the only reasonable inference to be drawn from the facts set out in the founding affidavit. [7] [10] As to self-created urgency, Swanepoel’s counsel contended in written argument that BNC “has been aware of the relevant facts since at least 7 October 2025” and correctly pointed out that Swanepoel had first asserted a lien over the file in late August 2025. I am of the view, however, that neither of these dates can appropriately be regarded as the “trigger” [8] for the urgency of the matter. [11]  Swanepoel only quantified its claim for outstanding fees for the first time when it submitted its reconciliation dated 5 September 2025 and, on 8 September 2025 it indicated that it was “willing to consider a proposal with regard to the collecti[on] of your client's files” on the basis of agreed “undertakings and payment arrangements” and requested to be furnished “with your client's payment proposal”. On 11 September 2025, BNC duly responded with a proposal, namely that it be agreed that the file would be released immediately but that Swanepoel’s fees (which evidently continued to be subject to dispute) would only be paid upon conclusion of the arbitration proceedings. On 1 October 2025 Swanepoel rejected BNC’s proposal of 11 September 2025 and counter-proposed “that your client make a tender of monthly payments for the release of its file”. In a letter of 2 October 2025, BNC rejected this counter-proposal reiterating its demand for the immediate release of the file on the basis that the fees were disputed because BNC had already paid “close onto R3 million which effectively would be fees you derived in respect of the bulk of the file” and reserved (but did not actually insist on) its “rights to have same taxed and assessed by the Legal Practice Counsel [sic]”. [12]  Although Swanepoel then made it clear in a letter dated 7 October 2025 that “no files will be released until the full amount of our outstanding account has been paid” and invited Pravda to “proceed to serve any application for the return of the files at our Krugersdorp offices”, it would in my view not have been either prudent or appropriate for BNC to have proceeded to court on this date because the negotiations had been proceeding even after the hearing of the compelling application on 25 September 2025, and the outcome of that application remained unknown until 17 October 2025. [13]  Furthermore, it is apparent that the possibility of an extra-curial solution was revived following the award that the arbitrator handed down on Friday, 17 October 2025 postponing the application to 5 November 2025. In his award, the arbitrator: a.       indicated that while he had “anticipated that [BNC] would make the necessary payment and be able to respond meaningfully to [Veolia’s] application”, it had been brought to his attention that this had “apparently not happened and the matter must be brought to a head now”; b.       observed that he was reluctant to grant the relief sought by Veolia “at this stage” as that “will in all probability … result in an application for the dismissal of [BNC’s] claim”; but c.       cautioned that Veolia “cannot have the determination of the application delayed ad infinitum as result of [BNC’s] difficulties” and that “in the period of time afforded to [BNC, it] should obtain the files from its erstwhile attorney and respond to the … application”. [14]  The award of 17 October 2025 prompted BNC to write to Swanepoel on Monday, 20 October 2025, insisting that it should “prepare a detailed and itemized bill of costs as per your mandate which bill must be taxed forthwith”, and indicating a desire to avoid urgent litigation. It proposed discussions with a view to adopting “a pragmatic and professional approach” on either 21 or 22 October 2025. Although Swanepoel did not reject BNC’s suggestion of further negotiations out of hand, it would have been clear to BNC on or shortly after Thursday, 23 October 2025 (which was proposed as an alternative date for the further discussions) that the proposed discussions would not take place. [15] While I have thus considered whether a “trigger” for urgency might have existed for a brief period after that time, I am of the view that BNC did not unduly delay in obtaining security (this appears to have been done on the morning of Wednesday, 29 October 2025), and that it acted prudently on Friday, 31 October 2025 when it afforded Swanepoel a further 10 days within which to prepare a detailed statement of account and process its bill of costs for the purposes of taxation before furnishing the file against the tendered security, failing which it indicated it would pursue the current application. This is especially since: a. the date for the resumption of the arbitration had seemingly been changed from 5 November 2025 to 19 November 2025; [9] and b. BNC’s recognition that Swanepoel might need as much as 10 days to prepare a detailed statement of account appears to have been realistic: Swanepoel only submitted what it described as a “full reconciliation of account, along with vouchers” when it responded to BNC on 11 November 2025. [10] [16]  In any event, I can see no reason why Swanepoel could not have responded earlier to reject (or raise queries regarding) the tendered security on the basis that it did in its letter of 11 November 2025 (I deal with this further below). [17]  Finally, in considering Swanepoel’s contention of self-created urgency, it is significant that its letter continued to propose the “scheduling” of a “roundtable negotiation” with BNC “so that a pragmatic solution [could] be reached” and also indicated that it was “happy to submit the matter for mediation”. I should perhaps add that (i) in view of the previous ongoing and potentially renewed possibility of negotiations to agree on a resolution, BNC cannot be criticised for not having tendered security at an earlier stage in the absence of any suggestion of a demand therefore; and (ii) Swanepoel cannot be criticised for not having prepared a bill of costs for the purposes of taxation until such time as BNC demanded one. [18] The facts as they emerge from the affidavits thus show that BNC was justified in not proceeding urgently to court before it did, especially given that Swanepoel advances no contention that it did not have an adequate opportunity within the time afforded it (including the additional time that it unilaterally took) to deliver its answering papers setting out facts upon which it relies in seeking to resist the relief sought, or to prepare to argue the matter. The merits [19] A court asked to make an order such as that sought by BNC exercises a wide discretion having regard to what is equitable in all the particular circumstances of the case. On the one hand, it must be borne in mind that while the offer (or even actual furnishing) of security – even if adequate – does not confer any right of possession on the owner, [11] it should nevertheless not be “left out of” it unreasonably. On the other hand, the court should not allow the lien to be defeated if the object of the application is not bona fide and the purpose is simply to delay the recovery of the alleged debt after obtaining possession. [12] In addition, it was held in Manciso that: a. since the court is asked to override an “undoubted right” to possess the property by substituting something else for it in the absence of any right in this regard, [13] the yardstick for the grant of relief is whether the court is of the view that the security is “adequate”, not whether it is “fair”, which means that the court will not make an order that “diminishes” the utility of the right of retention”; [14] b. while any legitimate objection raised by the respondent (both as to the bona fides of the applicant’s resistance to making immediate payment of the claim against the return of the property, and also as to the adequacy of the security) must be “seriously considered”, [15] it is important to recognise that the remedy is a temporary measure that does not involve any decision on the underlying dispute, and the court is thus required to take a “robust approach” to the evidence; [16] and c. the Court is not bound to dismiss the application should it come to the view that the tendered security is not adequate, nor is it bound to grant the order sought if it considers that it is: instead, it may in the exercise of its discretion impose additional requirements so as to ensure the adequacy of the security. [17] [20]  In the current matter, BNC states in its founding affidavit that the order that it seeks requiring Swanepoel to deliver the file is justified by its tender of “full security” for Swanepoel’s claimed fees. Not only is this “full security” repeatedly described by BNC in decidedly vague terms: “the amount allegedly owing … is held securely in trust, pending taxation alternatively and/or agreement alternatively and/or an order of Court” [my emphasis], but BNC’s notice of motion is also devoid of any mention of the tendered security at all. [21]  It is well-established that: … the only functions of a taxing master in regard to an attorney and client bill of the only functions of a taxing master in regard to an attorney and client bill of costs are to determine whether the work charged for has been done (and has been done in execution of the alleged mandate) and to quantify the client’s indebtedness. It is not for a taxing master to determine whether the client is in fact liable to pay the amount taxed. Thus, he must refrain from deciding whether the attorney was in fact given a mandate by the client, whether set-off applies , whether the debt has become prescribed (Gluckman v Winter and Another 1931 AD 449 , and Lubbe v Borman 1938 CPD 211) , or whether, as a result of his negligence, the attorney is not entitled to recover fees and disbursements from his client . [18] [22]  It is thus notable that the founding affidavit contains a number of allegations that create the impression that the tendered security would only be released to Swanepoel upon the grant of a final and binding “order of Court” for payment, following legal proceedings in which BNC intends to dispute liability and/or seek that any liability be set off against a claim of its own. The following examples suffice to demonstrate this: a.       “the rights of BNC in relation to any potential professional negligence or misdirection that may have arisen” from Swanepoel’s initial advice that BNC’s claim against the Veolia should be pursued in the High Court are “expressly reserved”; b.       “to date, the arbitration has costs of almost R3 million, including the fees of a single Arbitrator, without the matter having meaningfully proceeded or any substantive issues having been ventilated. The result is that BNC has expended considerable resources without achieving any progress, largely owing to [Swanepoel’s] failure to cooperate”; c.       “upon the official appointment of BNC's current attorneys of record … the full extent of [Swanepoel’s] shortcomings and omissions came to light”; d.       Swanepoel has “failed to comply with the obligations of an attorney of record” and “the resulting deficiencies have obstructed BNC's ability to comply with discovery obligations, respond to [Veolia’s claims of deficient discovery and non-compliance], and participate effectively in the arbitration” and “Veolia's correspondence and papers have consistently highlighted multiple deficiencies and issues arising from [Swanepoel’s] conduct in the matter”; e.       On 2 October 2025, BNC informed Swanepoel that “issue was being taken with the [untaxed] bill of costs provided”; f.         In its letter tendering the security on 31 October 2025, Pravda had “confirmed that the amount allegedly owing to [Swanepoel] is held securely in trust, pending taxation alternatively and/or agreement alternatively and/or an order of Court, and reiterated that … BNC disputed the quantum of [Swanepoel’s] fees as excessive and unreasonable ” [emphasis supplied]; and g.       “Pravda has unequivocally undertaken and continues to hold the amount alleged to be due in their trust account, pending any taxation or determination of [Swanepoel’s] entitlement ” [emphasis supplied]. [23]  In the face of BNC’s repeatedly vague formulation of the precise terms of the tendered security and the impression created by these allegations, it is unsurprising that Swanepoel’s answering affidavit sought to mount a comprehensive defence of its performance of the mandate and that it opposed the application on its merits on the grounds set out in paragraph [4] above. In my view it is of particular significance that BNC did not respond pertinently to certain of the concerns raised in Swanepoel’s letter of 11 November 2025, namely: a.       that BNC had not confirmed whether the tendered security was guaranteed to be held in trust pending the outcome of either “an action or taxation”; and b.       the need for Swanepoel to present its files to a cost consultant for the purposes of taxing the bill of costs demanded by BNC. [24]  In its replying affidavit, BNC declined to “litigate the merits of the underlying claim (i.e. whether [it’s] objection to the outstanding fees alleged to be owing underlying the lien is valid)” but advanced a different formulation of the security that had been tendered, saying that it had given “an irrevocable undertaking “to keep the funds … in trust pending the outcome of any procedures related to the taxation of the bill of costs”. However, apparently recognising that even this did not unambiguously address the Swanepoel’s legitimate concerns, it adopted a (slightly) more amenable stance, stating that “if this Court deems it just, the Applicant will comply with any order securing those funds as this Court deems meet pending the outcome of the taxation of the bill of costs and or directions ancillary thereto”. [25]  In considering the exercise of my discretion and following the “robust” approach recommended in Mancisco , it seems to me that the appropriate course would be to grant the primary relief sought by BNC (i.e. to allow the release of the file) while seeking to ensure: (i) that Swanepoel is not disadvantaged in any way by the ‘replacement’ of its lien by the security; and (ii) that BNC is in no way advantaged thereby in relation to the so-called ‘underlying dispute’. [26]  I am of the view that this may be done by: a. clearly stipulating that the security is required to be released as payment to Swanepoel for work found to have been done and quantified through the taxation, which BNC had rightfully demanded and without which Swanepoel’s claim in any event “ cannot proceed ” , [19] thus leaving it to BNC to decide whether to institute any legal proceedings that it may consider appropriate on the basis of the allegations referred to in paragraph [22] above; and b.  insulating Swanepoel against the incurrence of any costs that it would not have incurred but for the release of the file, for example the costs of making copies or scans of documents that it requires for the purposes of pursuing the taxation of its fees. Costs and order [27] As suggested in Mancisco , I have considered whether it might be appropriate to reserve the question of costs until such time as Swanepoel’s claim for payment is finalised and it is known whether, or to what extent, BNC’s objection thereto is justified. [20] It seems to me, however, that this is not appropriate in circumstances where the attorney and own-client bill of costs has yet to be taxed, and it is not known with certainty that there will be any further objection, let alone litigation before this Court, once that has occurred. [28] I do not think that it would be appropriate to award costs in favour of BNC in view of its failure (even in reply) to squarely address the concerns raised about the proposed security in Swanepoel’s letter of 11 November 2025. In my view, Swanepoel should be awarded its costs. It was justified in opposing the relief sought in the notice of motion and has been substantially successful in doing so in view of the adjustments that I have made to the order in the exercise of my discretion to ensure the adequacy of the security. [21] However, since Swanepoel left it to the Court to fashion an order that is protective of its interests, I do not think that a costs order on any scale other than scale “A”, let alone a punitive one, is justified. [29]  I make the following order: 1.  The Applicant’s non-compliance with the Uniform Rules of Court relating to forms, time periods and service is condoned, and this matter is enrolled and heard as one of urgency in terms of Rule 6(12). 2.  The sum of R200,000.00 (including all interest thereon) shall be held in the trust account of Pravda & Knowles Attorneys in terms of section 86(4) of the Legal Practice Act, 28 of 2014 on behalf of the First Respondent as security for the payment to it of such amount as may be quantified on taxation in respect of the own-client fees and disbursements charged and incurred by it pursuant to the performance of its mandate in relation to the arbitration proceedings between the Applicant and the Second Respondent. 3.  The First Respondent shall, as soon as may reasonably be arranged with the Applicant after receipt of this order, and upon being furnished with proof of the security held in accordance with paragraph 2 above, deliver the Applicant’s complete arbitration file to Pravda & Knowles Attorneys, or make same available for its collection, including but not limited to: 3.1   all pleadings, notices, correspondence, opinions, and documents generated in the arbitration proceedings referred to in paragraph 2 above; and 3.2   all discovery bundles, expert reports, witness statements, invoices, and relevant documents in the First Respondent’s possession or under its control pertaining to the said arbitration proceedings. 4.  Should the First Respondent not be in possession of a photocopy or scanned facsimile of any physical document delivered or collected pursuant to paragraph 3 above, it shall notify Pravda & Knowles Attorneys in writing of such fact at the time of such delivery or collection, and the Applicant shall, at its own cost, make legible and complete photocopies or scanned facsimiles of each and every such document, and deliver same to the First Respondent within five (5) working days of such delivery or collection, or within such further period as the First Respondent may agree. 5.  The Applicant is ordered to pay the First respondent’s costs, including the costs of counsel on scale “A”. RJ MOULTRIE ACTING JUDGE OF THE HIGH COURT JOHANNESBURG Date Heard : 26 November 2025 For the Applicant : R Grunder instructed by Pravda & Knowles Attorneys, matthew@pravda.co.za For the 1 st respondent : K Reddy instructed by Swanepoel van Zyl Attorneys, johann@swanepoelvanzyl.co.za [1] In Botha v EM Mchunu & Co 1992 (4) SA 740 (N) at 745E–747E it was expressly held that an attorney is afforded a lien over its client’s file that is not restricted to documents actually prepared by the attorney, but covers every document in relation to which it has expended time in applying its skill and expertise as long as they are relevant to its mandate (i.e. the work in respect of which it is entitled to charge a fee). See also Peter Cooper & Company v De Vos [1998] 2 All SA (E), Free State Agricultural & Ecotourism Development ( Pty ) Ltd v Mthembu & Mahomed 2002 (5) SA 343 (O) at 345H–J and Law Society of Cape of Good Hope v Dippenaar 2006 JDR 0825 (C) para 28. [2] Luna Meubel Vervaardigers (Edms) Bpk v Makin and Another (t/a Makin’s Furniture Manufacturers) 1977 (4) SA 135 (W) at 136H–137F, applying Republikeinse Publikasies (Edms) Bpk v Afrikaanse Pers Publikasies (Edms) Bpk 1972 (1) SA 773 (A) at 782A–G. See also Commissioner, South African Revenue Services v Hawker Air Services (Pty) Ltd; Commissioner, South African Revenue Service v Hawker Aviation Partnership [2006] ZASCA 51 ; 2006 (4) SA 292 (SCA) para 9. This remains the governing approach, as is implicitly recognised in paragraph 28.10 of the Judge President’s Practice Directive, 1 of 2024 (as amended). [3] Cornerstone Logistics (Pty) Ltd v Zacpak Cape Town Depot (Pty) Ltd [2022] 2 All SA 13 (SCA) para 30. [4] Mogalakwena Local Muni v Provincial Executive Council, Limpopo 2016 (4) SA 99 (GP) para 64, recently approved by a full court of this division in Zuma and Another v Ramaphosa and Others [2025] ZAGPPHC 1093; 2025 JDR 4428 (GP) para 10. [5] Mogalakwena (above) para 64; Black Sash Trust v Minister of Social Development and Others (Freedom Under Law Intervening) 2017 (3) SA 335 (CC) para 36. [6] cf. Transnet Limited v Rubenstein 2006 (1) SA 591 SCA paras 21 and 33; SA Informal Traders Forum v City of Jhb 2014 (4) SA 371 (CC) para 37. [7] Sikwe v SA Mutual Fire & General Insurance 1977 (3) SA 438 (W) at 440G–441A. The dictum of the Appellate Division in Republikeinse Publikasies (above) at 783A that “the Court does not exist for the Rules but the Rules for the Court”, most recently approved by the SCA in Motloung v Sheriff, Pretoria East 2020 (5) SA 123 (SCA) paras 26 and 27 is also relevant in this regard. [8] cf. Avis Southern Africa (Pty) Ltd and Others v Porteous and Another 2024 (2) SA 386 (GJ) para 17; Ashebo v Minister of Home Affairs 2023 (5) SA 382 (CC) para 12. [9] I was not able to determine from the affidavits exactly when the date was changed but it is reasonable to infer that it was prior to 31 October 2025. [10] There is no suggestion that Swanepoel delayed unreasonably in undertaking this exercise or that it has not complied with its obligations in terms of paragraph 18.8 of the Code of Conduct for Legal Practitioners (GN 168 published in GG 42337 of 29 March 2019 as amended) to: “… submit an account for taxation … within a reasonable time after a request to do so by … the client or the person purportedly liable for payment of the fee” . [11] Hochmetals Africa (Pty) Ltd v Otavi Mining Co (Pty) Ltd 1968 (1) SA 571 (A) at 582D-E; Mancisco & Sons CC (in liquidation) v Stone 2001 (1) SA 168 (W) at 174H. [12] Spitz v Kesting 1923 WLD 45 at 49 and Grafton House Ltd v White & Co 1923 WLD 117 at 118, approved (albeit obiter ) in Hochmetals (above) at 582C–E (majority) and at 580–581 (minority) and in Rhoode v De Kock and Another 2013 (3) SA 123 (SCA) para 17. [13] Mancisco (above) at 174H. [14] Ibid at 175B. In Peter Cooper (above) at 247g, the court noted that “ [f]or the purpose of calculating the amount of the security to be lodged, the value of the property subject to the lien is … irrelevant ” . [15] Ibid at 175B–C. [16] Ibid at 175I–176G. See also the minority judgment of Wunsch J at 193D. [17] Ibid at 176I–J. See also the judgment of Wunsch J at 187F–188D. [18] Benson v Walters 1984 (1) SA 73 (A) at 87H–88A. [19] Ibid at 84B - 85D and 86C. The consequence is that the despite the absence of taxation, an attorney and own client bill becomes “due” for the purposes of prescription even in the absence of quantification through taxation. The Court also appears to have agreed that, even in the absence of a special plea, the Court can raise the issue mero motu because “ judgment cannot be given ” until the costs have been taxed. This is consistent with subsequent dicta to the effect that neither provisional sentence nor set off is possible unless the fees have been liquidated by means of an agreement, either in advance or afterwards, or taxation (see Chapman Dyer Miles & Moorhead Inc. v Highmark Investment Holdings CC 1998 (3) SA 608 (D) at 612G and Blakes Maphanga Inc. v Outsurance Insurance Company Ltd 2010 (4) SA 232 (SCA) paras 16 - 18). In Blakes Maphanga , it was also confirmed that even where there is an agreement, the court may insist on taxation in order to prevent overreaching. (It is important to recognise, however, that the situation applicable to a costs order given against a third party is distinguishable: see Administrateur, Transvaal v J D van Niekerk en Genote BK [1994] ZASCA 128 ; 1995 (2) SA 241 (A) at 245G). [20] Manciso (above) at 179H–180C and 180G–181B. [21] Ibid. at 179H–180C and 180G–181B. sino noindex make_database footer start