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[2022] ZAECQBHC 23
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Ntombana v Messrs Nel Mentz Steyn Ellis Incorporated (2232/2016) [2022] ZAECQBHC 23 (23 August 2022)
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION
Case No.: 2232/2016
Date Heard: 28 July 2022
Date Delivered: 23 August
2022
In the matter between:
BONISWA
ESTHER
NTOMBANA
Plaintiff
and
MESSRS
NEL MENTZ STEYN ELLIS INCORPORATED
Defendant
JUDGMENT
EKSTEEN J:
[1]
The plaintiff, Ms Boniswa Ester Ntombana
(Ms Ntombana) claims damages arising from an alleged breach of
mandate by defendant, Messrs
Nel Mentz Steyn Ellis Incorporated (Nel
Mentz), a firm of attorneys. She was injured in a motor vehicle
accident in Booyse
Street, Humansdorp on 12 November 2010 when a
motor vehicle collided with her whilst she was crossing the street.
As a result
of the collision she sustained severe bodily injury and,
accordingly, instructed Nel Mentz to institute a claim against the
Road
Accident Fund (the RAF) for due compensation. Nel Mentz
accepted the mandate, but failed to pursue the claim, which has since
become prescribed. Hence, the claim against Nel Mentz for
damages arising from the prescription of her claim against the
RAF.
[2]
Ms Ntombana alleged that the negligence of
the driver of the vehicle, one Zote (Mr Zote) was the sole cause of
the collision and
that she suffered damages in the sum of R1
453 160.00 in consequence of the injuries sustained in the
collision.
She contended that, but for the negligent failure of
Nel Mentz to pursue her claim, she would have recovered the said
amount from
the RAF.
[3]
The
liability of an attorney to a client for damages arising from his
negligence is based on a breach of contract between the parties.
It is an implied term of the mandate that an attorney will exercise
the skill, adequate knowledge and diligence expected of an
average
practicing attorney.
[1]
Where an attorney falls short of this standard, he commits a
negligent breach of his mandate.
[4]
In order for a plaintiff to succeed in a
claim against an attorney he is required to allege and prove:
(a)
A mandate given to the attorney;
(b)
a breach of the mandate;
(c)
negligence in the sense of his failure to
exercise the skill, adequate knowledge or diligence expected of an
average attorney;
(d)
damages,
which would generally require the proof of the likelihood of success
in the aborted proceedings;
[2]
and
(e)
that
damages were within the contemplation of the parties when the
contract was concluded.
[3]
[5]
As I have said it is common ground that Nel
Mentz accepted Ms Ntombana’s mandate to claim damages from the
RAF and that they
failed to deliver. At the start of the trial
the parties agreed that if Ms Ntombana was able to establish that the
collision
had been caused by the sole negligence of Mr Zote, Nel
Mentz would be liable to her in the amount of R800 000.00, calculated
as
at the date of trial, as a result of their breach of mandate.
However, Nel Mentz denied that she had suffered any damages
as a
result of their failure to institute action because, they said, Ms
Ntombana’s negligence had been the sole cause of
the
collision. In the alternative they contended that if Mr Zote
had been negligent, then her negligence also contributed
to the cause
of the collision and that she would only have recovered a portion of
her damages from the RAF. Thus, the only
issue before me was
whether Ms Ntombana would have succeeded in her action against the
RAF, and if so, how much of her damages
would she had recovered.
[6]
I turn to the evidence. Ms Ntombana
was 58 years old at the time of the accident. She explained
that she had lived in
Jeffrey’s Bay and had proceeded in a taxi
to Humansdorp where she intended to visit a school in order to make
arrangements
for her grandchild’s schooling. The taxi
proceeded up Booyse Street and she said that it came to a stop on the
left
hand verge of the road shortly before a pedestrian crossing.
There she alighted and waited on the left hand verge until the
taxi
had proceeded out of sight. She then proceeded to cross the
road and had already reached the opposite verge of the road,
with one
foot already on the gravel, when she was struck by the motor vehicle
on the left hand side of her body. She never
saw or heard the
vehicle approaching and after the impact she fell to the ground and
was dizzy, but she does have a recall of the
driver speaking on his
cellphone and she thought that he had phoned the ambulance.
[7]
She presented her evidence with reference
to a series of photographs of the alleged scene of the accident which
depicts a pedestrian
crossing in Booyse Street. A Google aerial
photograph of the area was later presented in evidence that shows the
pedestrian
crossing in Booyse Street, approximately one and a half
blocks from the T-junction with Jacobs Street. The “Graslaagte
Primary School” is situated on the property bordering on Booyse
Street and Jacobs Street with its entrance in Jacobs Street.
Ms
Ntombana said that she intended to proceed to the school after
alighting from the taxi.
[8]
Mr Zote testified on behalf of the
defendant. His version is irreconcilable with that of Ms
Ntombana. He said that he
had travelled in Jacobs Street to the
junction with Booyse Street. At the T-junction, where Booyse
Street joins Jacobs Street,
Mr Zote said that there is a three-way
stop street. He had stopped at the stop street in Jacobs Street
before turning right
into Booyse Street and had noted a sedan vehicle
stationary at the stop street in Booyse Street intending to turn to
its left into
Jacobs Street. When he had satisfied himself that
it was safe to advance into Booyse Street he proceeded and had
travelled
approximately 10 to 11 meters into Booyse Street, when he
suddenly saw Ms Ntombana directly in front of the right hand front of
his vehicle. He applied brakes immediately, but the collision
occurred simultaneously. Ms Ntombana fell down on the
tar
surface of the road, in the lane in which Mr Zote had travelled,
approximately between the center of his car and the right
hand
headlamp. Mr Zote said that he could not have travelled at more
than 20km/h at the time of impact as he had just pulled
away from a
stationary position at the stop street.
[9]
After the collision had occurred, he
recounted that four or five persons who had been in the vicinity came
to the assistance of
Ms Ntombana and helped her to the side of the
road where she sat down. There the police and the ambulance
found her.
[10]
Sergeant
Boyce was the police official who attended at the scene of the
accident. He did not open a docket as it appeared
to him that
Ms Ntombana did not sustain serious injuries, a perception which was
later confirmed by the hospital staff upon his
enquiry.
[4]
He, accordingly, completed an accident report form which was tendered
in evidence.
[11]
There were a number of deficiencies in the
manner in which the report form had been prepared which were
highlighted in cross-examinations
of Sergeant Boyce. He did,
however, corroborate the version of Mr Zote that the collision had
occurred near the T-junction
of Booyse Street and Jacobs Street and
said that he had found Ms Ntombana on the side of the road
approximately 11 meters from
the stop sign at the T-junction.
He recorded the version of the accident allegedly given to him by Mr
Zote at the time in
the accident report form as follows:
“
According
to driver A he turned right at the stop street at Booyse Street.
The pedestrian then crossed the street and did
not see the vehicle.
He tried to stop but bumped the pedestrian. Slight injuries
sustained.”
[12]
The trial proceeded some twelve years after
the accident and neither Ms Ntombana nor Mr Zote had attested to a
statement at the
time. The evidence of Ms Ntombana as to the
events were vague and sketchy and Sergeant Booyse was constrained to
acknowledge
that he had little recall of the accident save for what
he had recorded in his accident report form. Mr Zote, on the
other
hand, made a favourable impression in the witness box and Mr
Niekerk
,
on behalf of the Ms Ntombana, was constrained to acknowledge at the
conclusion of the trial that I was bound to accept that the
collision
occurred at the T-junction with Jacobs Street. Save for this
concession, however, he urged me to accept her version
as the manner
in which the collision occurred. I do not think that the
argument can be sustained.
[13]
Her version of the place of the collision
was anchored to the pedestrian crossing reflected on the photographs
which she presented
as depicting the scene. It is common cause
that the pedestrian crossing is a significant distance away from the
T-junction.
Moreover, the probabilities favour Mr Zote’s
version that the collision occurred near the T-junction, which is
considerably
closer to the entrance of the school that Ms Ntombana
intended to visit. There is no evidence of brake marks found on
the
tarred surface, which lends credence to Mr Zote’s version
that the collision occurred shortly after he had pulled away from
a
stationary position and that he was travelling very slowly at the
time.
[14]
Ms Ntombana insisted that she had been
struck as she was leaving the road surface and that she had fallen
down on the verge of the
road where she was found later by the police
and ambulance. As adumbrated earlier, Mr Zote says that she was
assisted to
the side of the road by bystanders who had come to her
assistance. He was adamant and his evidence was consistent in
this
respect whilst that of Ms Ntombana may be accounted for by her
admitted dizziness after the impact.
[15]
As
I have explained, Mr Zote made a favourable impression upon me in the
witness box and although his evidence is not without blemish,
he
presented a clear version as the manner in which the collision
occurred. I think that the probabilities favour his version.
In any event the plaintiff bore the onus to establish that she would
probably have succeeded in her claim against the RAF and the
extent
to which she would have succeeded. The matter must accordingly
be decided on the version presented by Mr Zote.
[5]
[16]
The
plaintiff presented no evidence as to the nature of the taxi that she
alighted from, but the evidence of Mr Zote was that it
was a sedan
vehicle. As Ms Ntombana crossed behind the vehicle, one would
expect, in the ordinary course, that she would
be visible to Mr Zote
whilst seated in his vehicle at the stop street. By parity of
reasoning he would have been visible
to her. A pedestrian
seeking to cross a street at a position where there is no pedestrian
crossing has a duty to satisfy
herself that she can proceed with
safety. In
Swanepoel
[6]
Hiemstra
J, correctly in my view, held that a pedestrian wanting to cross a
road has the primary duty to make sure that he chooses
an opportune
time. She clearly did not do so and, on her own evidence, she neither
saw nor heard the vehicle before the collision.
Similarly, a
driver proceeding on a suburban road has a duty to be vigilant for
pedestrians who may cross the street.
[7]
By his own admission Mr Zote did not see Ms Ntombana before the
impact occurred and she had already crossed more than half
the
street. It follows that both Ms Ntombana and Mr Zote were
negligent in failing to keep a proper lookout.
[17]
Mr
Niekerk
urged me, nevertheless, to find that there was no contributory
negligence on the part of Ms Ntombana. For this submission
he
relied on
Vilakazi
[8]
.
The circumstances in
Vilakazi
were, however, decidedly different. In
Vilakazi
the
motorist emerged from a filling station on the right hand side of a
busy road. Due to the pressure of the traffic he was
unable to
proceed until, eventually, one of the cars stopped to give him
opportunity to enter the road and turn to the right.
He looked
to left and only saw one car approaching which he thought was at a
safe distance, and he proceeded. At the same
time a young woman
had begun to cross the road from the opposite side. She too had
looked to her right and seen the single
motorist approaching and
decided that it was safe to proceed. Due to the pressure of the
traffic she had not noticed the
vehicle emerge from the filling
station.
[18]
The facts of the matter have little in
common with the present case. In this case the collision
occurred in a quiet suburban
street with little or no other traffic,
and the insured vehicle was at all times travelling on the roadway
and obeyed the traffic
signs. As I have said, Ms Ntombana
failed to keep a proper lookout. I am nevertheless satisfied
that Mr Zote exhibited
at least an equal degree of negligence.
I consider that Ms Ntombana has established that, but for the
negligence of Nel Mentz,
she would have recovered 50% of her proven
damages from the RAF.
[19]
In the result, it is ordered that the
defendant pay to the plaintiff:
1.
An amount of R400 000 as and for damages;
2.
Interest on the aforesaid amount at the
prescribed legal rate calculated from the date of judgment to the
date of payment; and
3.
The plaintiff’s costs of suit
together with interest thereon calculated from a date fourteen days
after taxation to date of
payment.
J W EKSTEEN
JUDGE OF THE HIGH
COURT
Appearances:
For
Plaintiff:
Adv D Niekerk instructed
by Jock Walters Attorneys, Gqeberha
For Defendant:
Adv P Jooste instructed by Nel Mentz Steyn Ellis Inc c/o
John Vosloo
Attorneys, Gqeberha
[1]
Mouton
v Die Mynwerksunie
1977
(1) SA 119
(AD),
[1977] 1 All SA 242
(A); Jowell
v
Bramwell-Jones and Others
2000 (3) SA 274
(SCA),
[2000] 2 All SA 161
(A); Steyn
NO
v Ronald Bobroff and Partners
[2012] ZASCA 184
(SCA),
2013 (2) SA 311
(SCA),
[2013] 1 All SA 471
(SCA); and
Drake
Flemmer and Orsmond Incorporated and Another v Gajjar NO
[2017] ZASCA 169
(SCA) 1, 2018 (3) SA 353 (SCA), [2018] 1 All SA 344
(SCA).
[2]
Dhooma
v Mehta
1957 (1) SA 676
(N)
[3]
Bruce
NO v Berman
[1963] 3 All SA 181 (T), 1963 (3) SA 21 (T)
[4]
No
evidence was presented of her injuries nor were any agreements
reached in respect thereof. The evidence of Mr Zote, does,
however, find support in the Plaintiff’s Particulars of
Claim. Although the plaintiff alleged a fracture of the tibial
plateau she pleaded:
“
8.1
Plaintiff was taken to the Humansdorp Hospital where X-rays were
taken of her right leg
and left wrist. Apparently, no broken
bones were seen and she was discharged.
8.2
Plaintiff suffered severe pain while at home and she went back to
the hospital after
about five to six days. Further X-rays were
taken which showed fractures. She was then referred to the
Livingstone Hospital
in Gqeberha.”
[5]
National
Employers’ General Insurance Co Ltd v Jagers
1984
(4) SA 437
(E) at 440D-H
[6]
Swanepoel
v
Parity
Insurance Co. Ltd
1963 (3) SA 819 (W)
[7]
Sing
v New India Assurance Co. Ltd
1966 (4) SA 154
(D); and
Nogude
v Union and South-West Africa Insurance Co. Ltd
1975 (3) SA 685
(A)
[8]
Vilakazi
v Santam Assurance Maatskappy Beperk
1974 (1) SA 23
(A)