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[2017] ZAFSHC 64
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J v Grimbeek (380/2013) [2017] ZAFSHC 64 (11 May 2017)
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
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 380/2013
In
the matter between:
M.
A.
J.
Appellant/Plaintiff
(Identity
Number: [8...])
and
JOHANNES
PETRUS
LOUIS
GRIMBEEK
Respondent/Defendant
HEARD
ON:
13 FEBRUARY
2017
JUDGMENT
BY:
RAMPAI,
J,
VANZYL
et
MHLAMBI,
J
DELIVERED
ON:
11
MAY
2017
[1]
These are appeal proceedings. The appeal concerns
the decision of
a retired
colleague who upheld the respondent's special plea of prescription
with costs. Aggrieved
by
that decision, the appellant comes to us on
appeal with the leave of the
court
a
quo.
The
respondent
opposes the
appeal.
[2]
I deem
it
necessary to give some
historical background of the appeal. From
now
on
I
shall
refer
to
the
appellant
as
the
plaintiff and the
respondent as the defendant unless the context dictates otherwise.
[3]
On
[….]
1983
the
plaintiff
was
born. He
grew
up
at Parys.
He
started his school career
at Tumahole in that town. From
a
primary
school
he
preceded
to
Tlali
Secondary School. He
was
a
grade
9
learner
in
the
year
2001.
[4]
On
25
January
2001
the
plaintiff
was
involved
in
a
road
accident at Parys. The
scene of the accident was in Brown Street, Tumahole, Parys.
It took place
at±
18:00.
He was
a cyclist at the
time. The
bicycle
collided
with
a
motor
vehicle
described
as an ambulance. He
sustained certain bodily injuries in the accident.
He was
rushed to
Parys Hospital.
[5]
On
the
same
day,
25
January
2001,
the
plaintiff
was
transferred to Boitumelo
Hospital at Kroonstad. The diagnosis revealed that he
sustained
certain
fractures. He
was
hospitalised
for
ten
or
so days. He
subsequently visited
the
Boitumelo Clinic
on
several occasions for
further treatment as
an
out-patient.
[6]
On
23
February 2001 the
plaintiff's father
consulted the
defendant
and mandated him to lodge the
plaintiff's third party
claim against the Road Accident Fund on behalf of his minor son. The
defendant tendered to provide the
required legal services
in order to
recover
compensation for
delictual
damages
suffered
by
the child.
[7]
On 4 February 2013 the plaintiff caused the
summons to be issued against the defendant. He sued the defendant for
payment of the
sum of
R1260000.
The claim was based on professional negligence.
He alleged that, through extinctive prescription, he lost his
statutory right to
recover compensation directly from the
Road Accident Fund.
He
then asserted that his loss
was
a
direct
and
necessary consequence of
the
defendant's acts
of
neglect.
[8]
This completes my synoposis of the historical
backdrop. These material
facts
were
extrapolated
from
the
plaintiffs
pleadings. Let us
now
turn
to
the
other
side
of
the
coin.
[9]
On
6
February 2013
the
sheriff served the
plaintiffs
summons on the defendant personally. He filed notice of his intention
to defend the action. In due course the defendant's
plea was
also filed.
The
plea was
amended
on
16
May
2013
and
filed.
The
defendant simultaneously filed a special plea together with his
substantive plea.
[1
0]
The special plea was couched in the following
terms:
"1.1
Die Eiser se eis teen die Verweerder spruit voort uit
die beweerde nalate/versuim
van
die
Verweerder
om
'n
eis
namens
die
Eiser
in
te
stel teen die
Padongelukfonds
voortspruitend
uit
'n
botsing
wat na bewaring plaasgevind het op 25 Januarie 2001
(hierinlater na verwys as "die
derdeparty-eis)".
1.2
Dagvaarding is op die Verweerder beteken op 6 Februarie 2013.
1.3
Die Eiser veer aan dat hy opdrag gegee het aan die Verweerder om die
derdeparty-eis in te stel
kort nadat die voormelde botsing op 25
Januarie 2001 plaasgevind het.
1.4
Die Eiser het meerderjarig geword op 17 Desember 2004.
1.5
Die Eiser het kennis gedra van die identiteit van die Verweerder en
van die feite waaruit die
Verweerder se beweerde skuld ontstaan het
voor 7 Februarie 2010.
1.6
In die alternatief tot paraqraaf 1.5 hierbo
kon die Eiser deur
die beoefening van redelike sorg kennis van die identiteit van die
Verweerder en van die feite waaruit die Verweerder
se beweerde skuld
ontstaan het bekom het voor
7
Februarie 2010 en word die Eiser ingevolge Artikel 12(3) van
die Verjaringswet, Wet no
68
van 1969 geag sodanige kennis te gedra het voor 7 Februarie
2010.
1.7
In die vooropstelling het die Eiser se eis teen die Verweerder
verjaar ingevolge die bepalings van
inter
alia
Artikel 10(1), 11(d). 12(1) en 12(3) voordat dagvaardiging op die
Verweerder beteken is op
6
Februarie 2013."
[11]
On 10 April 2014 and prior to the hearing the
parties held a telephonic pre-trial conference.
They agreed
to
ask the court to adjudicate the
merits
first.
Later on
the issues were accordingly separated. All
those
relative
to
quantum
were
shelved.
[12]
The
court
a
quo
considered
the
evidence and
made
the
following
order
on
29
July
2014:
"[26]
BEVEL
1.
Die spesiale pleit van verjaring word met koste gehandhaaf.
2.
Die eis word met koste van die hand gewys."
[13]
On 21 August 2014 the
plaintiff filed notice of
application for leave to appeal.
The
grounds of appeal were
embodied in
the
same notice. There
were
17
comprehensive
grounds.
I
shall
revert
to some of them
later.
By
agreement between the parties the court a
quo
dispensed with
the formal hearing of oral argument of the application for leave to
appeal. It considered written heads of argument
and adjudicated the
application informally in chambers. On 23 October 2014 the court a
quo
granted the plaintiff leave to appeal and reserved cost of
the application as cost in cause.
[14]
On 20 November 2014 the plaintiff's notice of appeal was filed.
He
noted an appeal against the whole of the judgment and the order by
the court a
quo
delivered on 29 July 2014. The relief sought
by the appellant is threefold. He seeks to have the order reversed by
dismissing the
respondent's special plea, granting judgment with cost
against the respondent and upholding the appeal with cost.
[15]
On
28
June
2016
the
plaintiff,
by
way
of
notice
of
motion,
filed
an
application
to
have the
late filing
and
prosecution of
his
appeal condoned.
[16]
On 13 February 2017 we were seized with the appeal. The appellant's
condonation application had also been enrolled. We
considered
it first. It was unopposed We were of the opinion that the appellant
had given a satisfactory explanation for the delay
in the noting and
prosecution of the appeal. The confusion about the correct identity
of the actual transcribers appeared to have
been the primary cause of
the delay. That being the case, the appellant was not to blame.
Accordingly the condonation application
was granted.
[17]
On the one hand, Mr Rontgen submitted on behalf
of the appellant
that
the
court
a
quo
materially
erred
in
upholding
the respondent's
special
plea. The
thrust
of
counsel's
contention
was
that
the
court
a
quo
placed
undue
emphasis
on
the
conduct of
the
plaintiff but disregarded the defendant's acts of neglect and applied
the prescription statute in a skewed manner to the plaintiff's
detriment and thereby gave the defendant an unfair advantage.
[18]
On
the
other
hand,
Mr
Grabler,
counsel
for
the
defendant
differed. Counsel submitted that the court a
quo
committed no material misdirection; that the
court a
quo
correctly
took into account all the facts and circumstances which indicated
that relevant documents or records were no longer available
seeing
that the defendant's file had since been destroyed; that
the defendant's recollection
had
since
faded
as
a
result
of
the
long
passage
of time and that the object of
the
prescription
statute was
to
ensure that a defendant is not prejudiced by his
inability to produce documents long destroyed or to
recall what happened long time ago.
[19]
The version of the
defendant was narrated by Mr Johannes Petrus Louis Grimbeck, the
defendant himself. He called no witness to testify
for him.
He testified that he did
not have independent
recollection
of
the
plaintiff's
claim; that
the
plaintiff made
enquiries
about
his
third
party
claim
during
2012; that
he then conducted a
careful search for possible documents or records
relating
to
the
file; that
he
subsequently
discovered
that indeed such a file
was opened; that he discovered some documents which he immediately
forwarded to the plaintiff's current
attorney;
that
he
ascertained
that
the
file
was
closed
on 1 June 2005; that he
would not have closed the plaintiff's file without
a
reason; that
he
could
not
recall
the
actual
reason
why he
closed
the
file;
that
he
could
not
recall
or
respond
to
the plaintiff's
allegations concerning the consultations; that he could not
recognise
the
plaintiff or
his
father anymore and
that
he
did not
have
any
knowledge
of
the
plaintiff
other
than
what
was apparent from
the
documents he
found.
[20]
That,
in
brief
was
the
sum
total
of
the
defendant's version.
The theme of
his evidence was that he
could no longer recall what actually happened because the plaintiff's
file had long been closed
and
subsequently
destroyed.
[21]
The defendant's version found favour with the court a
quo.
The
trial judge expressed his views as follows about the file
destruction and the adverse impact of the long passage
of time on the
defendant's recollective faculties:
"[22]
Dit word die verweerder
verwyt dat
hy
nie
die saak met die eiser opgevolg het nie,
maar
die punt is dat die leer vernietig is, en die verweerder
het
nie
'n
manier
waarop
hy
kan
vasstel
wat
hy
of
die
eiser in daardie
tydperk gedoen het nie.
Dis waarom
verjaringswetgewing bestaan,
want
geheues
vervaag
en
dokumente
word
vernietig. Dis
presies wat
hier
gebeur
het. Die verweerder
onthou
nie
wat
gebeur het nie.
En
die dokumente
is
vernietig. Dis
onbillik
om
in
die
omstandighede
meer
van
die verweerder te verwag
as wat hy voor die hof geplaas het."
(my
emphasis)
[22]
The crucial question on this appeal, and indeed
any other case where
the
special
defence
of
prescription
is
under
consideration, is whether the
defendant as
the
respondent, has discharged the onus.
This
material
consideration must be in
the
forefront of our minds.
[23]
In
order
to
succeed,
it
was
incumbent
upon
the
respondent
to establish that, by the exercise of reasonable
diligence, the appellant
could
have
ascertained,
before
17
December
2010,
that the
respondent
had
negligently
failed
to
lodge
his
third
party
claim against the
Road
Accident Fund and
the
peculiar acts of
neglect
or
circumstances which
underlined
the
breach
of
mandate. It
was
common cause
that
the
appellant
attained the
age
of
majority
on 17
December
2004; that
he
turned
21
years
of
age
on
that
day;
that the defendant never lodged his third party claim; that such
claim
was
extinguished
by
extinctive
prescription
on
17
December 2007; that
the
plaintiff's right of
recourse, in
other
words
cause
of action, against
the
r
espondent arose
on
18
December 2007;
and
that
such
right
was
also
destroyed
by
prescription
before
or
on
17
December 2010.
[24]
The correct approach in a case like this, where prescription is
relied upon as a special defence, is to consider, first and
foremost,
the conduct of the, defendant, the party that invokes such special
defence. After all the onus rests on him and not on
the plaintiff. In
the instant case, right from the outset, the focus was shifted from
the defendant's conduct to the plaintiffs
conduct. In my respectful
view, that approach was incorrect.
[25]
The court a
quo
reviewed
a number of decided cases and immediately turned to the conduct of
the plaintiff as the respondent in the prescription
proceedings. At
par 19 of the judgment the court a
quo
wa
s
very critical of the
plaintiffs conduct.
"[19]
In die geval het die respondent vanaf 2002 tot 2012, nadat hy in 2004
meerderjarig geword
het,
niks
gedoen
het
nie.
In
hierdie
geval,
ander
as
in die
Gunase
-saak,
was
die
verweerder se
kantoor
heeltyd oop,
en
is
dit
steeds oop, 200 meter van eiser se vader se werksplek.
Bowendien is die verweerder eiser
se
vader
se
werkgewer
se
prokureur.
Tog
het
eiser,
of
sy
vader
of
sy
swaer,
geen
navrae
daar
gedoen
nie,
vir
nagenoeg
tien jaar."
(my emphasis)
I
shall revert to the plaintiffs conduct.
[26]
Let us
consider the
defendant's conduct first
in
order
to determine whether he acquitted himself in a manner which justified
the verdict
he
sought
and
obtained. Before
I
precede
to
analize
his conduct,
I
deem it necessary to
tabulate some randomly selected snippets by the
court
a
quo
that
persuaded it
to
find
in
favour of the
defendant:
•
"Die eiser se probleem is dat die
feite random wat die prokureur gedoen het, as gevolg van tydsverloop
nie meer vasgestel kan
word nie."
•
"As die tydsverloop nie so lank
was nie, en die verweerder se leer nie vernietig was nie, sou mens
moontlik die redes vir daardie
uitjaag {as dit gebeur het) kon vind,
en sou mens moontlik kon bepaal wat toe gebeur het."
•
"Daardie rekords bestaan nie
meer, deur geen skuld van die verweerder nie."
•
"Die verweerder onthou nie wat
gebeur het nie, en die dokumente is vernietig."
•
"Weens die lang tydsverloop, en
omdat die rekords nie meer bestaan nie, weet mens nie wat daardie
rede was of watter stappe
die verweerder geneem het nie."
[27]
Those then were the material considerations that
informed the ultimate verdict of the
court
a
quo.
In exonerating the
defendant the
court
a
quo
found:
"Die
verweerder kan nie ender daardie omstandighede aanspreeklik gehou
word nie."
That
finding
is
one
which
I,
on
appeal,
cannot
support. It
is
my respectful and considered view that what the
defendant, as an attorney, did
and
failed
to
do
can
be readily ascertained from
the evidence adduced through intense and
penetrating cross examination
by
Mr
Rontgen.
[28]
As regards the defendant's conduct prior to 17 December 2007, it is
important to bear certain crucial facts in mind. It is
of utmost
importance to appreciate that, although the defendant might have
destroyed the file, some relevant accounting records
were not
destroyed. What the defendant did is apparent from those available
accounting records. However, that is not all. From
the same remaining
paper trail, what the defendant did not do - which he ought to have
done - can also be readily ascertained.
The finding that what the
defendant, as an attorney, did can no longer be ascertained cannot be
sustained by the silent story of
the accounting records. To his acts
of commission and omission I turn now. The accident took place on 25
January 2001. The plaintiff
was hospitalised for about 10 days. He
was,
therefore, released on or before 4 February 2001.
[29]
The defendant was
appointed before 13 February 2001 to institute a
third party claim on
behalf of the plaintiff
against the Road Accident Fund. The first consultation was,
therefore, between 4 February 2001 and 13 February
2001. The
defendant saw the plaintiff, then a minor child on a wheelchair, with
his father. All
that
we
know
about
that
initial
consultation is
that
the defendant demanded a
consultation fee. Other than that, it does not
seem
he
did
anything of
significance.
[30]
The second consultation
followed on 13 February 2001. The required R250.00 deposit was paid.
The plaintiffs father was issued
with
a
trust
receipt
number
3711. That
trust
receipt was the first
important accounting record still available.
[31]
The defendant drew up the required special power of attorney on 13
February 2001 but failed to have it signed by the plaintiffs
father.
The terms of the mandate were spelt out. That was the second
important document still available.
[32]
An
extract
from
the
trust
ledger
showed
that
on
6
April
2001,
the plaintiff's
trust
account
was
debited
with
an
amount
of
R200
and that such a trust
cheque was paid to Boitumelo Hospital.
The defendant's evidence
was that such payment was for the supply of
a
copy of
the
plaintiff's hospital
records.
One
wonders as
to
how the defendant, an attorney, expected the hospital to furnish him
with the patient's hospital records when he did
not have a proper
mandate
signed
by
the
patient. The
trust
ledger
was
also an important
accounting record still available. What the defendant did could,
therefore, be determined with relative ease from
those available
documentary sources of important information. Now I turn to what the
defendant failed to do according
to
the
same available
documentary sources.
[33]
There
was
no
debit
entry
on
the
plaintiff's
trust
ledger
account
for any
payment made
by
the
defendant
in
favour
of
the
South African Police
Service.
In
those days the cost of
a
police accident report
was R16.50. The glaring absence of such a significant entry
suggests
that
no
trust
cheque
was
ever
drawn
in
favour
of the South African
Police Service because no letter was ever written
by
the
defendant
to
request
a
copy
of
the
essential
police accident
report
let
alone
police
accident
plan.
To
that
extent,
the trust ledger extract
was a reflection of serious professional neglect by the defendant.
From the
police accident report
the offending motor vehicle and its driver are often identified which
is why
it
is such an
important document.
[34]
Similarly, there was
no
debit
entry shown
on
the
plaintiff's trust ledger
account for any payment made by the defendant in favour of
Parys
Hospital. Because
the
plaintiff
was
first
taken
there
and probably seen
by
a
doctor there
before he was
transferred, he was
obliged to have the prescribed statutory medical report completed
there by the first treating doctor.
In those days the cost
relative
to
the
completion
of
a
statutory
medical
report
was R202.00. The
glaring
absence of
such
a
significant debit
entry tends to indicate
that no such trust cheque was ever drawn in favour
of
Parys
Hospital
because
no
prescribed
mva
claim
form was ever completed
and sent to
Parys
Hospital for the completion of
the compulsory statutory
medical report.
To
that extent the trust
ledger extract was a reflection of yet another serious professional
neglect. The date of the victim's first
medical treatment generally
has to tally or correspond with the date of the accident. The
victim's
injuries as
described by
the
first
treating doctor, are very
important which is why the statutory medical report by the
first
treating doctor
is
an
essential document.
[35]
I can,
therefore,
be
readily
appreciated that although the file
might have been
destroyed, all was not lost. The available documentary records give
us a
pretty
fair idea that there was very little lost through the alleged
destruction of the
file.
Where an attorney knows that (s)he had done nothing significant in
order to execute
a
client's
mandate,
(s)he
would
naturally
be
tempted
to cover
up
his
or
her
trail
of
neglect. The
easiest
way
of
doing
so
is to
claim
that
the
file
has
been
destroyed. Behind
that
seemingly innocent excuse
may
be
a
sinister
motive to
suppress
the
truth.
[3
6]
Now I turn to the defendant's conduct in relation
to the consultations.
The
first
two consultations took
place within
19 days after
the accident.
In his evidence
the defendant hardly said a word about important matters such as
taking injury photographs of
his
client, drawing his
sworn
statement, visiting
the
scene of the
accident
at
Tumahole
on
the
outskirts
of
town,
advising
him about the danger of prescription and warning
him about the consequences of
failing
to
honour
scheduled appointments.
[37]
His
evidence was that he routinely consulted according to appointment and
that he and his secretary kept diaries for the purpose
of regulating
consultations with his clients. Such diaries would have been very
helpful to show precisely when after 13 February
2001 the plaintiff
was supposed to attend his third consultation
with
him.
The
diaries
would
also
have
helped
us
to
ascertain
the
date
of
the
last
consultation
he
had
with
the
plaintiff
as
well
as
the
first
appointment
the
plaintiff
had
missed.
He
or
his
secretary might even have made some useful notes in their diaries as
to
what the defendant's next line of action was
in
an attempt
to
reschedule
another
appointment
in
order
to
make
up
for the one the
plaintiff
had missed.
[38]
An
attorney
who
knew
that
his
client
was
a
child;
that
he
was
on
a
wheelchair
when
he
first
met
him;
that
his
injury
was
prima
facie
serious
and that his father was employed a mere 200m away
-
would
not
have
easily
forgotten
his
client.
He
would
have
remembered the
day
the child took him
to
the
scene of the accident, the scenery photographs he took and the rough
sketch of
the
scene
he
drew
up.
Not
so
the
defendant.
He
hardly
knew
that the scene of the accident
was
at
Tumahole.
It
makes
one
wonder whether
he
ever
took
and
drafted
the
plaintiff's
affidavit concerning the
accident.
If
he
had
diligently
carried
out
his
mandate by
doing
all
or
some
of the things such
as
those previously mentioned
in
the
preceding
paragraph, his
memory
would
not
have
being
as
vague
as
he
claimed
it
to
be.
He
would
broadly still
recall
what
actually
or
probably
happened.
[39]
The
defendant admitted
that
he
did
not
lodge
the
plaintiff's
third party claim.
However, he could not recall the
reason why. He merely
said
he
would
not
have
closed
the
file
for
no
good
reason. But we know that
the plaintiff's mva claim prescribed on 17 December 2007 and that he
closed the file probably on
or about 01 June 2005.
About three months or so earlier, on 22 March
2005
to
be
precise,
he
took
a
fee
of
R50,00. He
certainly prematurely
closed
the
file
31
months
before
the
date
on
which the claim was due
to prescribe.
[40]
He gave no good and understandable reason for doing so.
However
he speculated about three or so
possible
reasons.
I hasten to point
out that those speculative reasons had no merits. The crucial
question was why he did not lodge the
plaintiff's
claim in
good
time
before
17
December
2007
at
the
very
latest. To
that
question he gave
no
answer other than
the
speculative answers.
[41]
One
of
the
speculative
answers
was
that
it
might
well
have
been that
the
plaintiff
did
not
have
a
bona
fide
mva
claim. If
he
did
not have
the
police
accident
plan,
the
offending
driver's
statement, the victim's
statement, or a witness' statement how on earth could
he
even
have
come
to
the
conclusion
that
the
plaintiff did
not
have
a
valid
claim.
The
likelihood
was
very
high
that
he
did
not have any of those helpful documents relative
to the substantive merits
of
the
plaintiff's
claim. We
have
to
accept
that
as
a
fact.
He
cannot
be
let
off
the
hook
through
the
easy
excuse:
"I
cannot recall anything."
[42]
The
undisputed
version
of
the
plaintiff
was
that
he
was
riding
a
bicycle in
Brown Street at
Tumahole Parys on
25
January 2001; that the insured motor vehicle "x",
an ambulance, was approaching
him
from
the
front; that
the
ambulance
driver
tried
to
overtake another
motor
vehicle
"y";
that
the
oncoming
motor
vehicle "z" hindered "x" from completing the
overtaking manuevre; that
in
a
desperate
attempt
to
avoid
head-on
collusion
with
"z",
"x"
moved too far to its right on the wrong side of the road and
eventually
collided
with
him
on
his
bicycle.
[43]
If those factual allegations were proven to be
correct, then the plaintiff had a
valid claim
against the Road Accident
Fund.
The substantive merits would have been 100% in his favour. Given
those
circumstances,
no
lawyer
who
considers
himself
an
expert in
the
field
would,
for
one
moment, have
thought
that
possibly
the plaintiff
had
no
valid
claim.
[44]
The other speculative answer given by the defendant was that the
plaintiff might have failed to give him further instructions.
Could
lack of proper instructions have prevented the defendant from lodging
the plaintiff claim before 17 December 2004? The plaintiff
did not
expressly say so in so many clear words. However, he implicitly
wanted the court a
quo
to believe that it might well be that
the plaintiff did not make regular enquiries concerning the progress
which he, an attorney,
was making.
[45]
Let us assume, without deciding the point, in favour of the
defendant, that the plaintiff was an unco-operative client who
did
not keep appointments for consultation. Even in those circumstances,
the onus still rested squarely on the defendant to prove
what
constructive steps he practically took to overcome such a problem. He
would have easily contacted the plaintiff's father whose
workplace
was only 200m away from his office. We knew he never made such an
effort. In my view, he hopelessly failed to discharge
the onus. As
earlier demonstrated he failed to do any investigation of the
circumstances of the accident. We are still in the dark
as to
precisely what lack of further instructions could possibly have
prevented him from lodging the claim.
[46]
What we know is that soon after his discharge from the hospital, the
plaintiff wasted no time. First he went to Tumahole Police
Station
where he obtained a police note on which either the accident report
number or the crime administration system number was
reflected.
During the further consultation after that of 13 February 2001, the
plaintiff handed such note to the defendant. Instead
of addressing a
letter to the Station Commissioner, Tumahole Police Station for
copies of the police accident report and police
accident plan, the
defendant sent his injured client, who was on a wheelchair at the
time, to the police station. It has to borne
in mind that the
defendant had accepted the mandate to do whatever was necessary to
finalize the plaintiffs claim for compensation.
Mr Rontgen's cross
examination demonstrated beyond any shadow of doubt that the
defendant did nothing towards the attainment of
that objective.
[47]
It was the defendant's evidence that he closed the file on 1 June
2005. He testified that he ascertained the date from the
office
register of closed files. However, he did not discover the alleged
register or at least the relevant page on which the alleged
entry
appeared. The premature closing of a client's mva file by an
attorney, for whatever reason, without the knowledge of a client
is a
very serious matter. Such an important decision has to be made after
a thorough consideration of its possible future repercussion
on the
client as well as the attorney concerned. Whether the closing is
prompted by the perceived lack of instructions or cooperation
on the
part of a client or an attorney's subjective opinion that a client
has no valid mva claim - an attorney's decision to close
a client's
file as well as the actual reason underlying such a decision - must
be taken as quickly as practically possible and
conveyed to a client
without any undue delay.
[48]
No stone
must
be
left
unturned to
ens
ure
that
such a
unilateral decision
to
terminate a mandate is brought to a client's actual attention.
Ideally an attorney must write a detailed letter to
a client,
attach
a
copy
of
the
file
contents
and
have
it
delivered
to
a
client by a sheriff or a courier.
Where
a
reliable postal service
system exists, such a letter and attachment may be delivered by
registered mail. However,
traditio brevi manu
by a sheriff or a courier is the ideal
method.
[49]
When a file is c
losed
in those circumstances, a serious third party lawyer appreciates that
another lawyer may emerge on
the scene sooner
or
later. For
that
reason,
he
preserves
a
copy
of
that
last letter
to
client
in
special
risk
lever
file. This
is
done
in
order
to ensure that the
important history of the unaccomplished mission is not lost but
permanently stored beyond the date of the file
destruction. Where the
mandate has been successfully accomplished
it
is
permissible
to
destroy
a
file
five
years
after
the date
of
its
closure. But
where
there
was
no
happy
ending
to
the mandate, as
in
this
case, it
is
unwise to do. In
such
a scenario the
preservation or storage of the last letter to back up and to refresh
the memory of an attorney is of vital importance.
The underlying idea
behind all these cautionary steps is to give a discarded client a
reasonably adequate opportunity of appointing
another attorney in
order to
salvage
his claim from the
destructive tenticles of
the
monster called
prescription.
[50]
It is obvious that an
attorney can only take
such
protective
measures
to
safeguard,
not
only
the
interest
of
the
victim
but
his or her own interests
as well, provided he had immediately investigated
the
accident. In
this
instant
matter,
the
indications are
that
the
defendant
failed
to
do
so.
He
failed
to
do
so
in
almost
seven years. The accident occurred on
25
January 2001. He was appointed as early as 13 February 2001. The
plaintiff
turned 21 years of
age on 17 December 2004. The period
of
prescription commenced running against him as from 18 December 2004.
His claimed prescribed on 17 December 2007.
[51]
Let me hasten to
clarify one uncertainty.
The offending motor
vehicle
was
an
ambulance. In
a
small
town
such
as
Parys
there were
certainly
not
many
of
those. By
the
exercise
of
reasonable diligence the
defendant would have easily identified such an ambulance, its owner
and its driver at the time of the accident
even
if
such
driver
did
not
report
the
accident. In
my
view
it
was unlikely
that
the
driver
did
not. I
say
so
because
the
plaintiff
went to the police
station before 13 February 2001 to get the police reference of
the
accident.
There
he discovered that
the
police already
knew
about the accident in which an ambulance was involved.
[52]
For these reasons it can be accepted, as a fact, that the plaintiff's
claim did not arise out of a road accident where neither
the identity
of the offending driver nor the description of the offending motor
vehicle was unknown. Had the accident been the
so-called hit-and-run,
it would have prescribed on 24 January 2003. However, it did not
because
it was
not.
[53]
In the light of all these peculiar circumstances
relative to the defendant's conduct, I have come to the conclusion
that the evidence
showed
that
the
defendant
committed
several
acts
of neglect; that the plaintiff was in no way to
blame for
such negligence and
that
the
defendant's exclusive negligence was the sole
cause
of
the
prescription
of
the
plaintiff's
claim
against
the
Road
Accident
Fund
on
17
December
2007. I
would,
therefore, determine the first leg of the enquiry
in favour of the
plaintiff.
[54]
As
regards the
second leg
of
the
enquiry the focus shifts
to
the plaintiff's conduct,
before and after the
prescription of his claim
on 17 December
2007.
[55]
In considering his prior
conduct we
have
to determine whether the finding
of
the
court
a
quo
was
correct. The
court
a
quo
rejected, as
recent
fabrication,
the
explanation
of
the
plaintiff
as
to
why
he did not make frequent
enquiries concerning progress. It must be remembered that
it was, first and
foremost, the defendant's basic responsibility to give regular
written progress reports to the plaintiff. He conceded
during cross
examination that no correspondence
existed to show that he
complied with such basic mandatory obligation. The obligation of the
plaintiff to make enquiries concerning
progress was a matter of
secondary importance.
[56]
The
plaintiff
evidence
was
that
he
was
injured
in
a
road
accident on 25 January
2001;
that
the first consultation was
before his father
paid
the
deposit
of
R250,00; that
the
second
consultation entailed
his
delivery
of
the
police
and
hospital
references
as
the defendant had
requested and that the
third and last
consultation with the defendant took place during the year 2002. He
was accompanied by his father, Mr Vali
Friedman
Jakobo and his brother-in-law, Mr Tshediso Michael Thabatha, who
acted as the spokesperson.
Until
then
he had
never received any letter from
the
defendant.
His
brother-in-law
enquired
about
progress. The
defendant became agitated and angrily answered
that such cases
take
time
to
finalise.
The
following exchange between Mr Rontgen and the plaintiff is important.
"Nau
het een van die twee gevra van die vordering van die saak?
My
pa het oak gevra.
Nau
jou swaer het gese dat mnr Grimbeek gevra het wie is jy?
Dit
is
nou
wie
is
jy,
hy
verwys
na
die
swaer?
-
My
swaer
het
gevra,
en
dit
is
toe mnr Grimbeek horn meegedeel het
kyk
hierdie tipe sake neem lank, en
ek
sal
julle
bel
en
julle
in
kennis
stel
in
verband
met
die
vordering van hierdie saak."
[57]
The plaintiffs legal
representative wanted to
know
what
then happened
after the angry reaction:
"Nau
wat
het
daarna
gebeur,
het
jy
op
'n
stadium
bekommerd
geraak? -
Mnr Grimbeek,
u
Edele,
toe
hy
daar
met
ans
gepraat
het
was
hy
baie
kwaad gewees
en op
daardie stadium het
my pa ons gese nee ons
moet loop, ons moet die verweerder daar laat en kans gee, hy sal
hierdie eis hanteer."
[58]
Now two things emerge from this. The plaintiff patiently waited for
about 2.5 years before the last consultation to hear from
the
defendant. He waited in vain. He received no letter or a call from
the defendant. He became anxious. Because he and his father
could not
speak Afrikaans or English well, he asked his brother in-law to
accompany them. That then was the prelude to the last
consultation.
To the defendant the three men, concerned about lack of communication
and progress, went. They met the defendant.
Seemingly the
brother-in-law was very vocal and critical. The defendant did not
like his attitude. Tempers flared between the two.
The
defendant became so upset by Mr Thabatha he showed the plaintiff and
his relatives the door. To put an end to the acrimonious
discussion,
the father intervened like a peacemaker. He appealed to the two young
men that they should leave in order to give the
defendant a chance to
deal with the plaintiff's mva claim.
Mr
Thabatha substantially corroborated the plaintiff's version.
[59]
The
court
a
quo
disbelieved
the
plaintiff's
version
on
the
ground that it was
inconsistent with that of his father. The difference between their
accounts as far as the
last consultation was
concerned, had to do with the attitude of the defendant. According to
the plaintiff the defendant was so impolite
and annoyed
that
he
chased
them
away. But
according
to
his
father the defendant was
polite towards
them.
He was
not angry with them.
[60]
Two
points
must be
borne in
mind
here.
The
first
is
that the plaintiff's
account derived substantial support from that of
his brother-in-law. The
second
is
that
the
plaintiff's
father
was
in
the employ
of
the
man
regarded as
the
defendant's friend. The evidence of
the
brother-in-law
was
that
the
father
was
afraid
to upset the
defendant,
who was
a
friend
to
his
employer,
by telling the
court
that
the
defendant was
so
annoyed
and
discourteous
to
them
that
he
chased
them
out
of
his
office. I am
persuaded
by
Mr Rontgen's
submission
that
such
explanation
was
the
most
logical
and probable explanation of
the
variance between the
evidence
given by the plaintiff as supported by the
brother-in-law and that given
by
his
father
but
unsupported
by
anyone.
[61]
In
my
view
too
much
was
made
of
the
aforesaid
variance. We should,
on
appeal,
resist
the
temptation
of
building
a
mountain
out of
a
molehill. The
court
a
quo
rejected
the
plaintiff's
version
as corroborated by the brother-in-law on the
further ground that it was never put to the defendant during cross
examination by Mr
Rontgen that
he
was
so
annoyed that
he
chased
the
plaintiff and his
relatives
out
of
his
office.
[62]
It
was
indeed
so.
In
my
view,
however,
such
omission
by
itself
did
not
justify
the
rejection
of
the
two
young
witnesses.
Even
if that
aspect
of
their
version
was
put
to
the
defendant,
we
know what
his
answer
would
probably
have
been:
"I
can't recall
it.
Therefore,
I deny
it"
Such
was
his
master
answer
throughout
the
duration
of
his
stay
in the witness box.
The
record is replete with numerous variations of
such
reply.
[63]
Whether the
defendant
was
courteous or
discourteous - friendly or
unfriendly - polite
of
impolite
-
happy or
angry
- is
neither
here nor
there. The
singular variance was
not
a
point
of
such
decisive importance as
to
warrant
the
rejection of
the
defendant's version as
supported by
his
brother-in-law
to
the
effect
that
the
defendant persuaded them
to
leave
the
matter
in
his
capable
hands; that
he
knew what
he
was
doing;
that
such
claims
take
a
long
time
to
finalize and that
he
would call them.
Perhaps
that
'angry' tone of his
voice, probably coupled with angry facial expression as
well as
angry
gesticulations,
the
plaintiff
perceived
as
a
silent
warning:
"Don't
ever bother me again."
The
factual
distinction
between
the
instant matter
and
that
of
Gunase v Anirudh
2012 (2) SA
398
(SCA) is great.
In this
instance, the attorney discouraged the concerned client from making
enquiries.
[64]
It
must
be
kept
in
mind
that
the
plaintiff was
not
well-spoken as
far
as Afrikaans and English were concerned. During the first
consultation
he
and
his
father
had
to
talk
to
the
defendant
through
a
certain
lady
who
acted
as
an
interpreter.
I take
it,
therefore,
that
his
father
was
also
not
well
conversant with
those
two
languages.
His brother-in-law sharply crossed swords with the defendant during
the
last
consultation. The
acrimonious
consultation, quite apart from the defendant's assurance that
he
knew
what he
was doing,
probably
discouraged the plaintiff from visiting the defendant again to
enquire about progress. He and his brother in-law,
therefore,
did
not
want
to
bother
the
defendant
again. The father behaved himself in exactly the say manner.
His
similar
corresponding passage of time, then the attorney is precluded from
invoking the passage of time as a defence.
[68]
It would
be
fallacious and
indeed
unjust
to
let
the
attorney benefit from
such
a
cynical
defence. He
created
the
situation.
He
cannot simply
walk
away
from
it
now. He
put
his
trusting
client
in
that invidious
situation.
There
is
a
price
he
has
to
pay.
Such
price
is the
harvest
of
neglect.
[69]
The merits of the claim were extensively
canvassed during the trial.
The
court
a
quo
even
gave
judgment
on
the
merits.
In
their
respective written heads of argument, the parties again extensively
addressed the merits. During the course of
oral
submissions on
appeal
before
us,
both
counsels
again
fully
dealt with
the
merits. In
our
judgment on
appeal,
the
merits
were
again extensively
considered
and
reasoned.
In
all
probabilities,
virtually nothing more can still be said by the parties. It would,
therefore, appear
that
practical exigencies dictate
that
we
give
judgment
on the
merits
in
order
to
put
the
matter
to
final
rest.
For
the
reasons
mentioned elsewhere
in
this
judgment,
we
are
of
the
view
that
the trial
court
ought
to
have
given
judgment
in
favour
of
the
plaintiff.
[70]
The
plaintiff
has been successful.
He is
entitled to
the
fruit of
his
success. The
cost
of
the
appeal
must
follow
success.
Moreover, he ought to have succeeded in the court a
quo.
There is no reason
why
the
cost
in
the
court
a
quo
should
not
be
awarded
in favour
of
the
plaintiff.
[71]
Accordingly
I
make
the
following order:
71.1
The
appeal succeeds with
costs.
71.2
The
order
granted
on
7
August
2014
is
set
aside
and
it
is substituted with
the
one below:
71.2.1
The special
plea of
the
respondent
is
dismissed with costs.
71.2.2
The
merits
are
determined
in
favour
of
the
plaintiff, with
costs.
71.2.3
The defendant is
100%
liable to the plaintiff
in such an
amount
of
damages
as
the
plaintiff
may
prove
or
as may be agreed upon between the
parties.
____________________
M.H
RAMPAI, J
I
concur
____________________
C.
VAN ZYL, J
I
also concur
____________________
J.J
MHLAMBI, J
On
behalf of the appellant:
Attorney KM
Rontgen Sr
Instructed
by:
Rontgen & Rontgen Incorporated
Pretoria
and
McIntyre & Van der
Post
Bloemfontein
On
behalf of the respondent:
Adv. JE GrobIer
Instructed
by:
Geldenhuys Malatji Incorporated
Pretoria
and
Symington & De Kok
Bloemfontein