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[2010] ZAGPPHC 250
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Du Plessis Ingelyf v Joubert (A294/2008) [2010] ZAGPPHC 250 (15 December 2010)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA SOUTH AFRICA)
CASE
NUMBER: A294/2008
DATE:
15/12/2010
In
the appeal between:
TJAARD
DU PLESSIS INGELYF
..........................................
Appellant
(Plaintiff)
and
SJP
JOUBERT
.........................................................................
Respondent
(Defendant)
JUDGMENT
GOODEY
AJ:
[1]
INTRODUCTION:
(1.1)
This is an appeal against the whole of the judgment of the
learned Magistrate, M Venter in terms of which:
1.1.1
She
dismissed the Plaintiff's claim with costs;
1.1.2
She
found that the counterclaim in principle succeeded, but she ruled
that the quantum thereof as well as the costs pertaining to
the
counterclaim should stand over.
(1.2)
The aforesaid is clear from paragraph 3 of the affidavit of JJ van
der Schyff (attorney) dated 22 April 2008 as the order
has not been
recorded by a stenographer but was handed down / given in chambers.
[2]
BACKGROUND
/ RELEVANT FACTS:
(2.1)
The
Appellant was the Plaintiff in the court a
quo
and
the Respondent was the Defendant in the court a
quo.
(2.2)
The
Plaintiff is a firm of attorneys.
(2.3)
The
Defendant is a former client of the Plaintiff.
(2.4)
The
Plaintiff instituted action against the Defendant for R4 296,73 plus
interest and costs for professional services rendered during
2005 at
the Defendant's special instance and request.
(2.5)
It
transpired that the ground for the counterclaim seems to be that the
Defendant has withdrawn his action against the seller of
the vehicle
(INTO CARS) and settled for an amount of R1 500,00 which he alleges
being the damages he has suffered in this regard.
More in particular,
the defendant avers the following (which are to a great extend common
cause):
2.5.1
During December 2004 the defendant instructed the plaintiff to
institute action against INTO CARS (from which the defendant
purchased the vehicle) for damages pertaining to repair costs which
the defendant incurred in repairing the said vehicle;
2.5.2
During
February 2005 particulars of claim were prepared by advocate MCC de
Klerk;
2.5.3
The
said particulars of claim (which also included a claim for
cancellation) were sent to the defendant to peruse;
2.5.4
After
the defendant confirmed that the particulars of claim were in order,
same were issued during March 2005;
2.5.5
On
the 22
nd
April 2005 the plaintiff incorrectly (which was readily admitted)
applied for summary judgment on behalf of the (now) defendant
against
INTO CARS;
2.5.6
The
aforementioned application for summary judgment was withdrawn on the
25
th
of April 2005;
2.5.7
Shortly
thereafter the defendant terminated the mandate of the plaintiff and
settled with INTO CARS for an amount of R1,500,00.
[3]
THE
GIST OF THE MATTER:
(3.1)
At
the trial (see: page 30 of the record) the parties agreed that the
only dispute to be adjudicated would be the question of whether
the
Plaintiff had been instructed by the Defendant to claim for damages
only or whether he was also entitled to claim for cancellation
and
damages from the seller of the motor vehicle, being the seller who
sold the motor vehicle to the Defendant.
(3.2)
Only
the director of the Appellant testified. The Defendant did not
testify.
[4]
THE
LAW:
(4.1)
It
is trite law that (see for instance
Amler's
Precedents of Pleadings, Harms (5
th
Ed) at p55
where
the following is
said:
"The
liability of an attorney towards his client for damages caused as a
result of his negligence is based upon a breach of
the contract
between the parties."
(4.2)
It
is also trite law that
"It
is a term of the mandate that the attorney will exercise the skill
adequate
knowledge and diligence expected of an
average
practising attorney"
(my
underlining).
See:
Amler's Precedents of Pleadings
(7
th
Ed)
at 59
(4.3)
What
is expected is
reasonable
care not
absolute
care. See in this regard:
The
Law of South Africa, Vol 14 (1
st
Reissue)
at
408 where there following is said:
"In
pursuing his occupation, an attorney, like professional men in other
fields, is obliged to exercise due and reasonable
care. The duty to
take care is established once it is clear that the danger "would
have been foreseen and guarded against
by the diligens paterfamilias.
An
attorney
will
not
be guilty of negligence merely because he
committed
an error of judgment,
whether on matters of
discretion
or law
.
It is a question of degree and there is a borderland within which uit
is difficult to say whether a breach of duty has or has
not been
committed."
(My
underlining)
(4.4)
It
is thus clear that the attorney is not absolutely liable.
[5]
ARGUMENTS
/SUBMISSIONS:
(5.1)
I
have carefully perused the record and other documents filed as well
as the heads of argument by counsel and have also listened
to their
arguments/submissions.
(5.2)
Mr
Geach SC (for the Respondent) heavily relied on
inter
alia
the
following:
5.2.1
Page
99 of the record pertaining to be instituted for
damages
only;
5.2.2
The
incorrect application for summary judgment in the High Court (which
the Plaintiff has withdrawn and tendered the costs). This
Mr Geach SC
argues is proof that the Appellant did not pay proper attention to
the matter.
(5.3)
Mr
Rossouw SC (for the Appellant) on the other hand, pointed to
inter
alia
the
following:
5.3.1
A case develops, so with time the relief sought is sometimes
broaden to cover more possible
possibilities.
In
casu
only
an oral warranty was given and it was more diligent and prudent to
cover that possibility. It would be less prudent in not
doing so.
5.3.2
He referred to page 102 of the record. This is a letter to the
Respondent pointing out that an advocate has drawn the particulars
of
claim as well as that the claim pertains to three possibilities. His
father had also perused the draft particulars of claim
and through
his silence confirmed his consent thereto.
(5.4)
In view of the aforesaid, Mr Rossouw SC argues that the Respondent as
well as his father knew about the advocate having been
briefed to
settle the particulars of the claim and the three possibilities
pertaining to
inter
alia
the
fact that the claim was also for cancellation and damages.
[6]
DISCUSSION:
(6.1)
As
stated above, I have carefully perused the record an other documents
filed a swell as the heads of argument by counsel and have
their
arguments/submissions.
(6.2)
It
is clear that when the draft particulars of claim was sent to the
Respondent and his father also had knowledge of this as the
father
made some corrections and never objected or had any problems with the
fact that the said particulars also covered a claim
for cancellation
and/or damages.
(6.3)
It
is clear that the duty of an attorney is not absolute.
(6.4)
From
Volume 2 of the record it is clear that various letters, keeping the
Respondent up to date, was written to him by the Appellant.
This
clearly points to diligent behaviour.
(6.5)
The
application for summary judgment was an error for which the Appellant
took responsibility and tendered the wasted costs occasioned
thereby,
and is accordingly irrelevant to the dispute between the parties.
(6.6)
In
view of the oral warranty it was diligent to institute (in the
alternative)
inter
alia
relief
pertaining to cancellation and
damages.
In any event, if this was a judgment of error, it cannot be regarded
as negligence in view of the authorities referred
to in paragraph
(4.2) above.
(6.7)
The
Respondent and his father were aware at all times that an advocate
had drafted the particulars of claim and the fact that action
has
been instituted
inter
alia
for
cancellation and damages.
(6.8)
The
Respondent never informed the attorney (Appellant) that his car had
been repaired elsewhere.
(6.9)
It
cannot be expected from an ordinary attorney (which is the test) to
fail every time, everyday to enquire whether the vehicle
had been
repaired or not. It is at least expected from the client to call his
attorney.
[7]
CONCLUSION:
(7.1)
In view of the aforesaid, I find that the Plaintiff did in fact carry
out his mandate and that he had a mandate and did not
act
negligently.
(7.2)
Thus
the claim should have succeeded with costs and consequently the
appeal to my mind succeeds in this regard.
(7.3)
Pertaining
to the counterclaim, since the mandate was carried out and there was
no negligence on the part of the Plaintiff, the
counterclaim cannot
stand and should fall away and the appeal should also succeed in this
regard. It should also be recalled that
the action was withdrawn at
the specific instruction of the Respondent, after consultation with
the Appellant.
(7.4)
Consequently,
I make the following order:
1.
The
appeal is upheld;
2.
The
order of the Magistrate is substituted by the following:
"The
Plaintiff's claim in the amount of R4 269,73 succeeds with interest
at a rate of 15,5 per cent per annum as from the date
of service of
summons plus costs."
3.
The
counterclaim is dismissed with costs.
JJ
GOODEY
JUDGE
OF THE HIGH COURT
I
agree.
TM
MAKGOKA
JUDGE
OF THE HIGH COURT
Date
heard:
11
November 2010
Date
of Judgment:
15
December 2010
Counsel
for the Appellant:
Mr
BP Geach SC
Counsel
for the Respondent:
Mr
DPJ Rossouw SC
Attorneys
for the Appellant:
TJAARD
DU PLESSIS INC c/o PRETORIUS and WILSNACH 386 ORIENT STREET PRETORIA
REF:
T DU PLESSIS/TB0264 Tel: (012) 755 5445/6
Attorneys
for the Respondent:
EMMA
NEL ATTORNEYS STANDARD BANK CHAMBERS 59 CHURCH STREET REF: E
NEL/jm/J132