Court refuses to compel attorneys to sign disputed pre‑trial minute

JOHANNESBURG - The Gauteng Local Division of the High Court has dismissed an application by an advocate seeking to compel a law firm and one of its directors to sign a disputed pre‑trial minute, ruling that parties cannot be forced to agree to matters they genuinely contest.


In a judgment delivered on 3 July, Acting Judge Shadrack Tebeile dismissed an application brought by advocate Mthombeni Maqhawe against Sithole & Associates Inc Attorneys and attorney Edward Sithole.

Maqhawe had asked the court to order the respondents to sign the minutes of a pre‑trial conference held in April 2024. He also sought leave to apply for their defence to be struck out should they fail to comply.

The dispute centred on a paragraph in the pre‑trial minute stating that the advocate’s fees constituted a disbursement in the respondents’ legal practice and that they were responsible for paying him. The respondents refused to sign, arguing that the paragraph did not reflect the consensus reached during the conference and remained disputed. They further submitted that an earlier admission in their plea had resulted from an administrative drafting error, and they had since filed a notice seeking leave to amend the plea.

Maqhawe, who is claiming R570 500 for professional services rendered between 2019 and 2021, argued that the respondents could not withdraw from what he said was an agreed position recorded during the pre‑trial process.

However, Tebeile held that the purpose of a pre‑trial minute is to record agreements actually reached, not to impose admissions on contested issues. “The respondents cannot be compelled to sign a pre‑trial minute that does not accurately reflect the consensus reached at the pre‑trial conference,” he said.

The court found that the respondents had consistently objected to the disputed paragraph, with their representative deleting it from the draft minute and refusing to sign unless it was removed.

Tebeile ruled that the question of whether the advocate’s fees were immediately payable or conditional upon the successful conclusion of litigation was central to the case and should be determined at trial rather than through an interlocutory application. He also held that although the respondents had admitted the issue in their original plea, they were entitled to seek an amendment, with the merits of that application to be decided separately.

“The purpose of Rule 37 is to narrow issues, not to determine them. Only a trial is meant to determine the issues,” Tebeile said.

While dismissing the application, the court declined to award costs to either party, finding that although the respondents’ mistaken admission had prompted the litigation, their opposition was based on a bona fide legal argument rather than an abuse of process. Each party was ordered to bear its own costs for both the application to compel and an earlier condonation application.

The ruling adds to ongoing discussions around pre‑trial procedure and civil litigation practice.