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2021
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[2021] ZAGPPHC 76
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Sayed NO v Road Accident Fund; Olyn v Road Accident Fund; Mosia v Road Accident Fund; Tsotetsi v Road Accident Fund; Matholo v Road Accident Fund; Shongwe v Road Accident Fund; Harmse v Road Accident Fund (50887/18; 38403/17; 33821/17; 35970/18; 49128/18; 2316/14; 447/16) [2021] ZAGPPHC 76; [2021] 2 All SA 613 (GP); 2021 (3) SA 538 (GP) (4 March 2021)
SAFLII
Note:
Certain
personal/private details of parties or witnesses have been
redacted from this document in compliance with the law
and
SAFLII
Policy
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
REPORTABLE:
YES
OF
INTEREST TO OTHER JUDGES: YES
4/3/2021
In the matter between:
Case No:50887/18
ADVOCATE
S SAYED N.O.
(CURATOR
AD LITEM OF Z S S[....])
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
And in the matter between:
Case No:38403/17
OLYN:
MARY-ANN obo CAILYN
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
And in the matter between:
MOSIA:
MALEFETSANE SHADRACK
Case No:33821/17
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
And in the matter between:
Case No:35970/18
MPHO
FRANS TSOTETSI
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
And in the matter between:
Case No:49128/18
MATHOLO
LM obo
MOKOBANE
TOKYO ISAAC
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
And in the matter between:
Case No: 2316/14
ADV
M TROMP N.O. obo
T
I SHONGWE
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
And in the matter between:
Case No:447/16
HARMSE
HMC obo HILLS GH
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
Coram: Mahon AJ
Attorney
– Duty of – Duty to withdraw from matter by means of
delivery of formal notice of withdrawal as attorney of
record in
terms of Rule 16(4)(a). An attorney who does not intend to play any
further active role in litigation has a duty to timeously
withdraw
from matter by means of delivery of formal notice of withdrawal as
attorney of record in terms of Rule 16(4)(a). This
duty is owed, not
only to the attorney’s own client, but also to the Court, to
the attorneys on the other side and to the
other litigants in the
matter. Failure to do so out of self-interest constitutes
unprofessional conduct.
Practice - Attorney of record
- Withdrawal of - Notice of withdrawal in terms of Uniform Rule 16
(4) – When required.
JUDGMENT
MAHON
AJ
This
judgment is handed down electronically by circulating to the parties
by email and by uploading on Caselines.
Introduction
[1]
This judgment is in respect of a number of actions launched by
various plaintiffs against the Road Accident Fund (“the RAF”).
Some of the matters proceeded on an unopposed basis by virtue of the
lack of any appearance for the defendant. In the others,
settlement had been reached between the parties by virtue of the
plaintiff, acting through its legal representatives having engaged
directly with the defendant through one or more of its claims
handlers, in the absence of the defendant’s attorneys of
record.
[2]
A common feature in all of the matters, however, is that the
defendant’s attorneys of record, who had previously been
actively
involved in the matter by signing pleadings, delivering
documents and the like, had at some point prior to the hearing of the
matter,
ceased playing any further role in the proceedings and,
despite this, failed to withdraw as attorney of record.
[3]
At the hearing of each of these matters, therefore, the
defendant’s attorneys were still formally on record but had
failed
to appear at the hearing and had played no active part in the
proceedings for an extended period of time.
[4]
It is this broader aspect which I am duty-bound to address in
this judgment in what would otherwise b
e relatively
customary matters on the civil trial roll.
[5]
I accordingly deal with this aspect in this judgment, before making
the
orders directed at each of the matters, as set out in paragraph
[67] below.
An
Attorney’s Duty to Withdraw
[6]
As a
general principle, but subject to certain exceptions, whatever the
nature of the matter in hand, a client is entitled at any
time to put
an end to the attorney and client relationship and upon his doing so
the attorney must accept the dismissal.
This is a long
established principle in England
[1]
and has been followed in South Africa and remarked upon as being
implicit in our system of administration of justice.
[2]
[7]
In the
handling of any matter which comes or is to come before any court, an
attorney must at all times act with proper respect
for that court so
as not in any way to impair its authority and dignity.
[3]
[8]
An
attorney of record in litigation is no mere post box or conduit
for the receipt and dispatch of documents. He plays
a pivotal
role in the progress of litigation, the functioning of courts and the
administration of justice. The attorney’s
function is to
understand his client’s problem and, even where he knows that
counsel will be briefed, to go as far as he
reasonably can in the
time available, not only to grasp the facts but also to investigate
the legal questions involved.
[4]
It goes without saying that these duties cannot be fulfilled where
the attorney has washed his hands of the matter and is present
in
name only.
[9]
It
must be remembered that an attorney owes duties, not only to his
client, but to the court and, indeed, to his opponents and their
clients.
[5]
[10]
It is for good reason, therefore, that an attorney’s role in
the representation
of his client in litigation has been regulated by
the Uniform Rules of Court.
[11]
The relevant provisions of Rule 16 provide as follows:
“
(1)
If an attorney acts on behalf of any party in any proceedings, such
attorney shall notify all
other parties of this fact and shall supply
an address where documents in the proceedings may be served.
(2)
(a) Any party
represented by an attorney in any proceedings
may at any time,
subject to the provisions of Rule 40, terminate such attorney’s
authority to act, and may thereafter act
in person or appoint another
attorney to act in the proceedings, whereupon such party or the newly
appointed attorney on behalf
of such party shall forthwith give
notice to the Registrar and to all other parties of the termination
of the former attorney’s
authority, and if such party has
appointed a further attorney to act in the proceedings, such party or
the newly appointed attorney
on behalf of such party shall give the
name and address of the attorney so appointed.
...
(4)
(a) Where an attorney
acting in any proceedings for
a party ceases so to act, such attorney
shall forthwith deliver notice thereof to such party, the Registrar
and all other parties;
provided that notice to the party for whom
such attorney acted may be given by facsimile or electronic mail in
accordance with
the provisions of Rule 4A.
”
[12]
The above-quoted provisions make it plain that an attorney, when
acting for a litigant,
is required to place himself on record in
accordance with the rule. Axiomatically, where that attorney
ceases to act in the
matter, he is similarly duty-bound to deliver a
notice of withdrawal as attorney of record.
[13]
This serves an important purpose, not only for the other parties
involved, but for
the protection of the attorney himself, as this
judgment illustrates.
[14]
In
each of the matters forming the subject matter of this judgment,
there was no appearance for the defendant, despite the defendant’s
attorneys having formally remained on record. In many of the matters,
the plaintiffs’ counsel lamented their instructing
attorneys’
difficulty in eliciting from the defendant directly, responses to
letters addressed to it from the plaintiffs’
attorneys. Had it
been the defendant’s attorneys who had failed to reply to
correspondence, they would have risked censure
by the Legal Practice
Council.
[6]
This is but one
illustration of the difficulty arising from an attorney who is on
record but who plays no active role in the matter.
[15]
Counsel alerted me to another practical difficulty which arises from
this state affairs,
namely, that it becomes impossible for the
plaintiffs to comply with the practice directives of this court which
require a pre-trial
conference to be held between the parties and a
joint practice note to be filed. When requested to attend pre-trial
conferences,
the defendant’s attorneys of record will,
typically, either ignore the request or indicate that they hold no
instructions
to participate. This, quite clearly, impedes the
progression of the matters to a state where they are ripe for trial
and undermines
the very purpose of the practice directives in
question.
[16]
I am aware of pending disputes in this court between the defendant
and numerous attorneys’
firms in relation to the termination of
their mandates by the defendant and it was posited to me by a number
of the counsel who
appeared before me on behalf of the plaintiffs,
that the attorneys in question may be deliberately refusing to
withdraw from these
matters in order to maintain some tactical
advantage in those pending proceedings. This is, of course,
speculation, but if one
were to assume the correctness of this
explanation then I fail to see how that can be a legitimate
explanation for the attorneys’
conduct. It still remained their
duty either to withdraw timeously or to carry on with the case.
[17]
Indeed, it seems to me that if an attorney should deliberately act in
a manner which
is at odds with his ethical duties in an effort to
preserve his own financial self-interest, that would, in my view,
render the
attorney guilty of unprofessional conduct. It must be
remembered that an attorney’s profession is more than a mere
commercial
enterprise – it is a noble undertaking which carries
with it the privilege of serving the administration of justice. An
attorney’s
ethical obligations will always outweigh matters of
financial or commercial expediency.
[18]
I hold no view in regard to whatever issues may be in dispute between
these attorneys
and the defendant – their concerns might well
be eminently warranted - but it need hardly be stated that an
attorney cannot
flout his ethical obligations in order to preserve
his commercial relationships with the defendant.
[19]
Whatever
the reasons for remaining on record may be, if the attorney adopts
the position that he is entitled to remain as attorney
of record,
then he must continue to fulfil his obligations. He cannot both
approbate and reprobate, for as was aptly stated by
Didcott J in
S
v Ndima 1977 (3) SA 1095 (N):
[7]
“
If
an attorney wishes to carry on hoping that at the last minute he will
be given funds and does not wish to withdraw at an earlier
stage of
the case because he will jeopardise his chance of being paid, then he
must be willing to take the risk that he will find
himself financing
the appeal and go on with it. In other words, he either withdraws at
an appropriate stage or he takes the risk
and carries on and does the
work…”
[20]
On the facts of the present matters, it seems to me that the
attorneys were either
required to withdraw timeously or to continue
to act in the matter (perhaps, at their own financial risk). They did
neither.
[21]
What
is more, the passage from the Ndima judgment which I have quoted
above has been given fairly recent publicity to attorneys
as a result
of it having been published in
De
Rebus
in
May of 2018.
[8]
[22]
Prima
facie
,
and I make no finding in this regard because I do not have the
attorneys' explanation before me, the defendant’s attorneys
of
record in these matters are guilty of gross discourtesy and a neglect
of their duties as officers of the Court.
[9]
In
one of the matters (Harmse v RAF – Case no 447/16), the
plaintiff’s attorneys had, at my request, addressed
correspondence
to the defendant’s attorneys of record
indicating that, because they were still on record, they should
appear before me on
4 February 2021. The defendant’s attorneys
of record refused, stating that “…
We
confirm that at this stage the RAF doesnt
(sic)
give
us any instructions and this include
(sic)
instructions
to appear in court on its behalf. We therefore advise that you should
communicate with the RAF in the interest of your
client.
”
[23]
This response is most discourteous to and disrespectful of the court.
So too, is
the general approach of the defendant’s attorneys in
these matter, in the absence of some legitimate explanation.
[24]
For these reasons, I intend to direct that this
judgment be delivered to the offices of the Legal Practice Council,
for it to consider
an investigation into the conduct of the
defendant’s attorneys of record in all of these matters.
[25]
I turn now to the merits of the individual matters which served
before me. In each
of the matters, I considered whether an
appropriate contingency fee agreement was in place. None of them gave
rise to any concerns
in this regard.
Matters
Where Agreement Had Been Reached:
Case
numbers 49128/18 – Matholo v RAF and Case number 33821/17 –
Mosia v RAF
[26]
In these matters, a settlement was reached between the plaintiffs
(acting through
their attorneys) and the defendant, through one or
more of its claims handlers and a draft order was provided to me by
counsel.
A letter of confirmation of the acceptance of the draft by
the defendant, was provided.
[27]
In both of the matters, counsel for the plaintiff addressed me on the
appropriateness
of the draft orders and, having heard counsel and
considered the draft orders in the light of the documents to which
counsel directed
my attention, I am satisfied that the draft orders
ought to be granted.
Case
number 2316/14 – Shongwe v RAF
[28]
In this matter, an agreement was reach in regard to part of the
relief claimed by
the plaintiff. The defendant agreed,
inter alia,
to an interim payment of R1 million, to the furnishing of an
undertaking in terms of section 17(4) of the Act, and that the
plaintiff's
claims with respect to the patient's past medical
expenses, general damages past and future loss of income be postponed
sine die
.
[29]
The plaintiff also moved for an order declaring the patient to be
incapable of managing
his own affairs and for an order appointing a
curator
bonis
. Having considered the report of the curator
ad
litem,
the affidavit of the patient’s mother and guardian
who supports the application and the submissions of counsel, I am
satisfied
that this relief should be granted.
[30]
I was provided with draft order and was referred to a letter from the
defendant indicating
that it was agreeable to the granting of the
draft order concerned.
[31]
I am satisfied that the draft order ought to be granted.
Matters
Which Proceeded on a Default or Unopposed Basis
Case
number 50887/18 – Sayed NO v RAF
[32]
In this matter, there was no appearance for
the defendant and the plaintiff was unable to make contact with any
employee of the
defendant who was able to deal with the matter. The
hearing accordingly proceeded on an unopposed basis.
[33]
Section 005 of the bundle uploaded onto
Caselines contains a series of documents demonstrating the
locus
standi
of the plaintiff in her capacity
as curator of the minor child. Having considered these
documents I am satisfied that the
plaintiff has the necessary
locus
standi
to represent the minor child in
these proceedings.
[34]
In regard to the merits of the matter, the
plaintiff relies upon the sworn affidavit of Ms S[....], the mother
of the minor child,
who indicates that while the minor child was
walking on the side of the road a taxi travelling at a high speed
came from behind,
swerved to the left to avoid a dog in the road and
collided with the minor child on the side of the road.
[35]
It is contended by the plaintiff that the
driver of the taxi was negligent in a number of respects articulated
in paragraph 5 of
the plaintiff’s amended particulars of claim.
[36]
Ms S[....]’s version, when considered
in the light of the photographs provided and the sketch plan must, in
the absence of
any evidence to the contrary, be accepted.
[37]
I was then referred to the minute of the pre-trial
conference dated 28 August 2018 in which the defendant admitted
that the
minor child was
doli incapax
at the time of the accident. In my view, this admission was
correctly made and no negligence can be attributed to the minor
child. I am accordingly satisfied that the defendant ought to
be 100% liable for such damages as may be proved by the plaintiff.
[38]
According to the amended particulars of claim, the plaintiff claims
the following:
[38.1]
An undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund
Act 56 of 1996
in respect of Future Medical Expenses;
[38.2]
Monetary compensation in an amount of R7,000,000.00, comprised
of:
[38.2.1]
R5,500,000.00 in respect of loss of income; and
[38.2.2]
General Damages in an amount of R1,500,000.00.
[39]
In light of my finding that
the defendant ought to
be 100% liable for such damages as may be proved by the plaintiff,
the undertaking referred to in paragraph
[38.1]
above
must follow.
[40]
For the entitlement to monetary compensation, the plaintiff relies
upon the expert
reports of 14 experts, which have been confirmed by
way of affidavits from each of them.
[41]
Although the defendant delivered a number of notices in terms of
rule
36(9)(a)
, it seemingly failed to deliver any expert summaries.
[42]
I have had regard to the contents of the plaintiff’s expert
summaries and in
the absence of any evidence to the contrary, I am
satisfied as to their cogency and correctness. What remains are the
questions
of the appropriate contingency deduction to be applied to
the plaintiff’s claim for loss of earnings in the circumstances
and the question of general damages.
[43]
In
regard to the question of loss of earnings, I am mindful of what was
stated in the judgment of
Phalane
v Road Accident Fund
[10]
where
the following approach was endorsed, at paragraphs 17 and 18:
“
[17]
Contingencies are the hazards of life that normally beset the lives
and circumstances of ordinary people (AA Mutual Ins Co
v Van
Jaarsveld reported in Corbett & Buchanan, The Quantum of Damages,
Vol II 360 at 367) and should therefore, by its very
nature, be a
process of subjective impression or estimation rather than objective
calculation (Shield Ins Co Ltd v Booysen
1979 (3) SA 953
(A) at
965G-H). Contingencies for which allowance should be made, would
usually include the following:
(a) the
possibility of illness which would have occurred in any event;
(b) inflation or
deflation of the value of money in future; and
(c) other risks
of life such as accidents or even death, which would have become a
reality, sooner or later, in any event (Corbett,
The Quantum of
Damages, Vol I, p 51).
[18] In the
Quantum Yearbook (by Robert Koch, 2017 Edition, p 126) the learned
author points out that there are no fixed rules as
regards general
contingencies. However, he suggests the following guidelines:
‘
Sliding
scale: Yz% per year to retirement age, i.e. 25% for a child, 20% for
a youth and 10% in the middle age…’
Normal
contingencies: The RAF usually agrees to deductions of 5% for past
loss and 15% for future loss, the so-called normal contingencies."
[44]
Taking into account the young age of the minor child as well as what
appears to be
a somewhat conservative approach taken by the
industrial psychologist, I am persuaded that a 20% contingency
deduction in this
instance is appropriate.
[45]
As per the summary of loss of income at paginated page 347 of the
actuarial report,
a future loss before contingency deduction is
indicated as R6,637,027. With the deduction which consider to be
appropriate, the
plaintiff is entitled to payment of an amount of
R5,309,622.
[46]
As for
general damages, it is trite that In assessing general damages for
bodily injuries, the process of comparison with comparable
cases does
not take the form of a meticulous examination of awards made in other
cases, nor should the process be allowed to dominate
the enquiry as
to become a fetter upon the Court's general discretion. Comparable
cases, when available, are to be used to afford
general guidance
towards assisting the Court in arriving at an award which is not
substantially out of general accord with previous
awards in broadly
similar cases.
[11]
[47]
Having considered Mr Bam’s very thorough and comprehensive
heads of argument
in the light of the evidence before me, I am
satisfied that an amount R1,200,000.00 would be appropriate as
general damages.
[48]
The curator
ad litem
’s report recommends the
establishment of a trust to assist the plaintiff and the plaintiff’s
family to manage the funds
awarded.
Case
number 38403/17 – Olyn v RAF
[49]
In this matter, the merits had previously become settled on the basis
that the defendant
would be liable for 100% of such damages as agreed
or proved by the plaintiff.
[50]
An undertaking in terms of
section 17(4)(a)
of the
Road Accident Fund
Act 56 of 1996
in respect of Future Medical Expenses must accordingly
follow.
[51]
There was no appearance for the defendant and the matter accordingly
proceeded on
an unopposed basis.
[52]
The plaintiff requested that the question of general damages be
postponed
sine die
, a request which I intend to grant.
[53]
The only remaining issue before me was the question of loss of
earnings.
[54]
Having
considered the contents of the expert’s reports which were
confirmed by way of affidavit and having considered the
submissions
of counsel, I am satisfied that a contingency deduction of 30% is
appropriate. This is based on what is stated in
Phalane
v Road Accident Fund
,
[12]
referred to above, considered in the light of the pre-existing
conditions which were identified by the plaintiff’s counsel.
[55]
I accordingly intend to make an order in terms of the draft order
which was provided
by counsel, amended as to reflect the amount of
R1 044 784.40 which is to be awarded as loss of earnings.
Case
number 35970/18 – Tsotetsi v RAF
[56]
This matter was set down to proceed on quantum only, the merits
having been previously
conceded on the basis that the defendant would
be liable for 100% of the plaintiff’s proved or agreed damages.
. In the absence
of any appearance for the defendant, the matter
proceeded on an unopposed basis.
[57]
As with the previous matters, the resolution of the merits on this
basis means that
an undertaking in terms of
section 1
7(4) of the Act
must follow.
[58]
Past medical expenses did not arise because the plaintiff was treated
in a government/state
funded hospital.
[59]
Based on the contents of the expert reports which were confirmed by
way of affidavit,
and utilising the postulations of the Industrial
Psychologist, the plaintiff argued that an amount of R397 030.00
was fair
and reasonable in respect of loss of earnings, taking into
account the suggested contingency deductions. I am satisfied that
this
is so.
[60]
Counsel referred me to a number of authorities in support of his
argument relating
to general damages. The updated awards in those
judgments ranged from R388 000.00 to R1 million.
[61]
I am satisfied that the plaintiff’s proposed amount of
R700 000.00 in
respect of general damages is reasonable.
[62]
I will accordingly make an order in terms of the draft order provided
to me.
Case
number 447/16 – Harmse v RAF
[63]
In this matter there was, similarly, no appearance for the
defendant.
[64]
Having considered counsel’s submissions and comprehensive heads
of argument,
I am of the view that the contingency deduction proposed
by the plaintiff is fair and reasonable.
[65]
Although counsel claimed an amount of R1,500 000.00 in respect of
general damages,
I am of the view that an amount of R1,300,000.00 is
more appropriate. Counsel for the plaintiff indicated that this
amount was
fair and reasonable.
[66]
On this basis, counsel provided me with a draft order which I intend
to make an order
of court.
Conclusion
[67]
I accordingly make the follow
ing orders:
The plaintiffs’ attorneys
of record are to ensure that this judgment is delivered to the
offices of the Legal Practice Council
for the consideration of an
investigation into the conduct of the defendant’s attorneys of
record.
In case number 49128/18 –
Matholo v RAF:
I make an order in terms of the
draft which appears at page 072-1 on Caselines;
A copy of the finalised order,
initialled by me, will be uploaded onto Caselines and delivered to
the parties by email;
3.
In case number 33821/17 – Mosia v RAF:
I make an order in terms of the
draft which appears at page 072-12 on Caselines;
A copy of the finalised order,
initialled by me, will be uploaded onto Caselines and delivered to
the parties by email;
4.
In case number 2316/14 – Shongwe v RAF:
I make an order in terms of the
draft which appears at page 001-1 on Caselines, including annexure
“A” thereto which
appears at page 001-9;
A copy of the finalised order,
initialled by me, will be uploaded onto Caselines and delivered to
the parties by email;
5.
In case
number 50887/18 – Sayed NO v RAF
:
The defendant shall compensate
the plaintiff for 100% of the plaintiff's proven damages arising
from the collision forming the
subject matter of this action.
The defendant shall make
payment to the plaintiff of the amount of R6 509 622.00 ("the
capital amount"), in respect
of Loss of Earnings and General
Damages into a trust account as contemplated in
Section 86(4)
of
the
Legal Practice Act 28 of 2014
, of the plaintiff's Attorneys,
for the sole benefit of Z[....] S[....] S[....] (Identity Number:
[….]) (referred to
as "the minor").
The defendant shall forthwith
furnish an Undertaking, in terms of Section 17(4)(a) of the Road
Accident Fund Act No. 56 of 1996,for
the payment of 100% (One
Hundred per centum) of the costs of future accommodation of the
minor in a hospital or nursing home,
or for the treatment of, or
rendering of service, or for the supplying of goods to the minor,
including the costs attendant
on the creation and Administration of
a Trust to be formed and the appointment of the Trustee(s) thereof,
and the costs of
a case manager and/or care giver and the services
rendered by him/her (including the costs incurred in providing
security to
the satisfaction of the Master of the High court),
after such costs have been incurred and upon proof thereof;
The defendant shall be liable
for:
the reasonable costs incurred
in the establishment of a TRUST as contemplated below and the
appointment of trustee(s);
the reasonable costs incurred
in the administration of the trust, which administration costs
recoverable from the defendant
shall be limited to the prescribed
tariffs for curators in terms of
Section 84(1)(b)
of the
Administration of Estates Act 66 of 1965
, read with
Regulation
8(3)
, as amended from time to time;
the reasonable costs incurred
in providing security to the satisfaction of the Mater of the High
Court of South Africa for
the administration of the award in
favour of the patient and the annual retention of such security to
meet the requirements
of the Master in terms of Section 6 of the
Trust Property Control Act 57 of 1988.
The payments made by the
defendant in terms of this order shall be made into a trust account
as contemplated in
Section 86(2)
of the
Legal Practice Act 28 of
2014
, of the plaintiff's Attorneys, for the sole benefit of the
minor pending the establishment of the TRUST contemplated below.
The attorneys for the plaintiff
are ordered:
To cause a trust ("the
Trust") to be established in accordance with the Trust
Property Control Act No 57 of 1988,
in line with the
recommendations of the curator
ad litem
;
To pay all monies held in
trust by them for the benefit of the minor, to the Trust, after
deduction of their fees and disbursements,
in accordance with
their mandate and fee agreement; provided that the said Attorney
shall only be entitled to their fee and
disbursements once the
plaintiff's Attorneys have taxed the Bill of Costs.
The trust instrument
contemplated above shall be substantially in accordance with the
draft trust deed annexed to the report
of the curator
ad litem
;
The defendant shall make
payment to the plaintiff of interest on all amounts, at the
prescribed rate;
The defendant shall make
payment of the plaintiff's costs, which shall be paid into the
aforementioned trust account.
6.
In case number 38403/17 – Olyn v RAF:
I make an order in terms of the
draft which appears at page 014-1 on Caselines, subject to the
inclusion of the amount of R1 044 784.40
in paragraph 2
thereof, as loss of earnings;
A copy of the finalised order,
initialled by me, will be uploaded onto Caselines and delivered to
the parties by email;
7.
In case number 35970/18 – Tsotetsi v RAF:
I make an order in
terms of the draft which appears at page 013-1 on Caselines;
A copy of the
finalised order, initialled by me, will be uploaded onto Caselines
and delivered to the parties by email;
8.
In case number 447/16 – Harmse v RAF:
I make an order in terms of the
draft provided to the court by counsel for the plaintiff;
A copy of the finalised order,
initialled by me, will be uploaded onto Caselines and delivered to
the parties by email.
D
MAHON
Acting
Judge of the High Court, Pretoria
APPEARANCES
:
Case
number 50887/18 – Sayed NO v RAF
For
the plaintiff: Adv J Bam
Instructed
by:
EHLERS ATTORNEYS
For
the defendant: No appearance
Attorneys
of record: MARIVATE ATTORNEYS
Date
of hearing: 3 February 2021
Date
of judgment: 4 March 2021
Case
number 38403/17 – Olyn v RAF
For
the plaintiff: Adv N Makopo
Instructed
by:
EDELING VAN NIEKERK INC.
For
the defendant: No appearance
Attorneys
of record: TAU PHALANE INCORPORATED
Date
of hearing: 3 February 2021
Date
of judgment: 4 March 2021
Case
number 33821/17 – Mosia v RAF
For
the plaintiff: Adv H van
Tonder
Instructed
by:
EDELING VAN NIEKERK INC.
For
the defendant: No appearance
Attorneys
of record: LEKHU PILSON ATTORNEYS
Date
of hearing: 3 February 2021
Date
of judgment: 4 March 2021
Case
number 35970/18 – Tsotetsi v RAF
For
the plaintiff: Adv M C C De
Klerk
Instructed
by:
NEL VAN DER MERWE & SMALMAN INC
For
the defendant: No appearance
Attorneys
of record: MKHONTO & NGWENYA INC
Date
of hearing: 4 February 2021
Date
of judgment: 4 March 2021
Case
number 49128/18 – Matholo v RAF
For
the plaintiff: Ms H T Kgomo
(Attorney)
Instructed
by:
Mohala Moifo Attorneys Inc.
For
the defendant: No appearance
Attorneys
of record: PULE INCORPORATED
Date
of hearing: 5 February 2021
Date
of judgment: 4 March 2021
Case
number 2316/14 – Shongwe v RAF
For
the plaintiff: FA RAS SC
Instructed
by:
RUDI KOTZE ATTORNEYS
For
the defendant: No appearance
Attorneys
of record: MAPONYA INCORPORATED
Date
of hearing: 5 February 2021
Date
of judgment: 4 March 2021
Case
number 447/16 – Harmse v RAF
For
the plaintiff: Adv D J Marx
Instructed
by:
VZLR INC
For
the defendant: No appearance
Attorneys
of record: BRIAN RAMABOA INC
Date
of hearing: 4 and 5 February 2021
Date
of judgment: 4 March 2021
[1]
Watts v
Official Solicitor [1936] 1 All ER 249 (CA).
[2]
See: Van
Blommestein, Professional Practice for Attorneys
(1965) Ch 7
par 7
at 63.
[3]
Lewis:
Legal Ethics, 1
st
Ed, p207
[4]
Lewis:
Legal Ethics, 1
st
Ed, p215
[5]
Transorient
Freight Transporters Corporation v Eurocargo Co-Ordinators (Pty) Ltd
1984 (3) SA 542
(W) at 546B
[6]
Rule
16.1 of the
Code
of Conduct for all Legal Practitioners, Candidate Legal
Practitioners and Juristic Entities
provides
that an attorney “…
shall
within a reasonable time reply to all communications which require
an answer unless there is good cause for refusing an
answer”.
[7]
At
1097 B-C
[8]
“
Some red
flag risk areas to keep a look out for in clients” by Thomas
Harban, May 2018 De Rebus
[9]
The
failure by attorneys to properly comply with this duty has been
described in a number of reported judgments as a 'gross discourtesy
and a neglect of their duties as officers of the court'. See S v
Ndima
1977 (3) SA 1095
(N) at 1097B – D, and MacDonald t/a
Happy Days Café v Neethling
1990 (4) SA 30
(N ), the latter
judgment having been referred to with approval in Makuwa v Poslson
2007 (3) SA 84
(T) para 11. See also Transorient Freight
Transporters Corporation v Eurocargo Co-Ordinators (Pty) Ltd
1984
(3) SA 542
(W) at 546B.
[10]
(48112/2014) [2017]
ZAGPPHC 759 (7 November 2017)
[11]
Protea
Insurance Co v Lamb 1971 (1) SA 530 (A)
[12]
(48112/2014) [2017]
ZAGPPHC 759 (7 November 2017)