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[2016] ZAECMHC 28
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Jack v Baleni and Another (1355/2013) [2016] ZAECMHC 28 (26 May 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(EASTERN
CAPE LOCAL DIVISION, MTHATHA)
CASE
NO.: 1355/2013
DATE:
26 MAY 2016
In
the matter between:
NANDIPHA
ELTER
JACK
........................................................................................................
Plaintiff
And
ANDILE
BALENI
...........................................................................................................
First
Defendant
NS
NOMBAMBELA
INCORPORATED
.................................................................
Second
Defendant
JUDGMENT
BESHE
J:
[1]
The plaintiff in this action is suing the defendants for damages
arising from first defendant’s alleged professional negligence.
The claim is for payment of R1 003 200.00 against
defendants jointly and severally the one paying the other to be
absolved.
[2]
At the start of the proceedings, a separation of issues was ordered
in terms of
Rule
33 (4)
[1]
.
I ordered that the issue of liability should be proceeded with first
with the issue of quantum postponed for determination later.
These
proceedings are therefore concerned with the determination of
liability.
[3]
The plaintiff is an adult female of Bolotwa Administrative Area,
Dutywa. The first defendant is an adult male practising as
an
attorney. He practises as such as part of second defendant. The
second defendant is a firm of attorneys with offices at N.S.
Nombambela Trust Building, corner Whack and Richardson Road, Dutywa.
It is common cause that at all times material to this matter
the
first defendant was employed by the second defendant.
[4]
It appears to be common cause that plaintiff approached the first
defendant seeking advise with a view of instituting a claim
for
damages or of seeking recourse for damages suffered as a result of
her husband’s (the deceased) death following a collision
between the deceased’s vehicle and that one driven by
Mr
Sipho Manakaza
(the insured driver).
The collision occurred on the 11 February 2008.
[5]
Plaintiff testified that following the passing of her husband as a
result of the collision referred to above,
Mr
Nombambela
of second defendant
handled the matter relating to deceased’s estate. However when
she requested him to lodge a claim
with the Road Accident Fund for
damages suffered as a result of deceased’s passing,
Mr
Nombambela
referred her to the first
defendant. She discussed the matter with the first defendant, who
asked her to obtain the police report
which she secured after a few
days and handed same to the first defendant. On the following day she
met with the first defendant
in his office. The latter took out the
police report, having perused it, opined that according to the sketch
plan, the deceased
was the sole cause of the collision. That she will
not get any compensation from the Road Accident Fund, and further
that any lawyer
will tell her the same thing. According to the
plaintiff, this happened less than a year after her husband’s
passing.
[6]
The police report is a document entitled “ACCIDENT REPORT (AR)
FORM” comprising of four (4) pages. The first page
provides for
the particulars of both drivers as well as those of their vehicles.
The second page has various options as to type
of motor vehicles, how
the road is controlled, namely robot, stop sign etc, type of
collision, for example head on etc, particulars
pertaining to the
road position of the motor vehicle before collision, damages to motor
vehicles and a brief description of the
accident. The description is
preceded by the words “it is alleged”. There is no
indication of who made the allegations
though. Page 3 requires a
summary of persons involved. No information is provided in this
regard with most parts marked “Not
applicable” (N/A).
Page 4 provides for witnesses – none are reflected. Attached to
the accident report is a sketch
plan and key thereto. This is the
sketch plan that the plaintiff alleges the first defendant based his
opinion that Road Accident
Fund is not liable on – or that
deceased was the sole cause of the accident.
[7]
Plaintiff testified that based on the first defendant’s advice,
she did not pursue a claim against the Road Accident Fund.
[8] Plaintiff is a
clerk at a school. In 2012 she attended the school’s athletics
meeting. During the meeting, she got talking
with a lady teacher at
the school. Their conversation ended up with the lady teacher,
Ms
Sgodi
enquiring about the progress of her claim with Road
Accident Fund seeing she lost her husband in a motor vehicle
collision. When
she explained to
Sgodi
what happened,
Sgodi
told her of a good lawyer she knew who was looking for clients.
Sgodi
provided her with attorney
Mncwango’s
contact details.
She got in touch with
Ms Mncwango
. She managed, at
Mncwango’s
request, to get her files from the second defendant.
[9]
During cross-examination, it was put to the plaintiff that documents
pertaining to the collision in question were requested
from the
police under cover of a letter from the second defendant and it was
based on those documents that the first defendant
formed an opinion
that plaintiff did not have a case against the Road Accident Fund.
But that he advised her to seek a second opinion
from another
attorney. Plaintiff insisted that the first defendant did not advise
her to seek a second opinion. She stated that
she does not recall if
she was given a letter to take to the police to ask for documents
concerning the collision.
[10]
Regarding the securing of documents relating to the accident in
question from the police, plaintiff testified that she obtained
the
documents from the Dutywa police. This after she was requested by the
first defendant to get them. As indicated, she does not
recall if
first defendant gave her a letter to present to the police in this
regard. Defendants’ version is that it is the
office of second
defendant that requested these documents under cover of a minute
which was delivered to the police by a messenger.
The defendants
initially did not discover any documents. However during plaintiff’s
cross-examination when an attempt was
made to question her about a
letter that was addressed to the police in this regard, this attempt
was met with an objection from
plaintiff’s counsel. The
objection was based on a complaint that the document/s the plaintiff
was being cross-examined about
had not been discovered. This resulted
in a postponement to enable the defendants to make a discovery of the
documents they intended
using.
[11] Defendants’
bundle of documents was handed in on a later date when the trial
resumed after a postponement. Not much reference
was made to the
bundle though much attention was given to the letter that was
addressed to the police by second defendant’s
office. The
bundle contains a letter that is addressed to the Station
Commissioner, Idutywa Police Station and dated the 7 April
2008. The
following documents are requested:
1. DAR from (
sic
).
2. Sketch Plan and
key.
3. Statement (
sic
)
of all witnesses.
4. Post-mortem
report.
Certain
documents form part of the bundle but the accident report is not one
of them. Defendants’ explanation for the absence
of the
accident report was that the accident report was already before court
so they did not see the need to include it in their
bundle. It was
pointed out during cross-examination of first defendant by
Mr
Cole
that there is no letter from the
police to say herewith enclosed the following documents as requested
by you (the defendants).
[12]
Plaintiff was also questioned about a claim Vodacom instituted
against the deceased’s estate for a vehicle that was damaged
during the collision in question. Plaintiff confirmed that the
Vodacom matter was handled by
Mr
Nombambela
on her behalf / on behalf of
the estate of her late husband’s estate. Summons in this regard
form part of defendant’s
bundle. Could it not be that the
letter addressed to the police sought documents in respect of this
claim? In my view the most
probable version in this regard is the
version that was proffered by the plaintiff. First defendant stated
that he considered the
documents that were obtained from the police.
He did not state with any particularity what exactly he considered.
This in my view
lends credence to plaintiff’s assertion that
first defendant only had regard to the police report that she
provided. The
reason suggested by defendants for first defendant to
visit the scene for an inspection
in
loco
is that the report was not clear /
helpful. He did not say that after considering all the documents
provided to them by police
he still could not make sense of the
sketch plan. Hence I say plaintiff’s version in this regard
seems to be most probable
of the two versions regarding what first
defendant considered before giving his opinion.
[13]
Plaintiff’s attorney of record,
Ms
Heather Pumla Mncwango
was the next
witness to testify in support of plaintiff’s case. She
confirmed that a friend who she refers to as
Ms
Sikoti
was responsible for her getting
in touch with the plaintiff. Having consulted with the plaintiff, she
realised that her claim against
the Road Accident Fund had
prescribed. She realised that had it not been for prescription, she
would have had a claim against the
Road Accident Fund because the
collision occurred at an intersection. This was in view of the fact
that 1% negligence on the part
of the insured driver would be enough
for a third party’s claim. As a result, she lodged claims in
respect of plaintiff and
deceased’s minor children against the
Road Accident Fund. The claims were settled entirely by the Road
Accident Fund.
[14]
The first defendant testified that he was admitted as an attorney in
1998. That even before being admitted as an attorney when
he did his
articles of clerkship, he had been dealing with claims against the
Road Accident Fund. He testified that he joined the
second defendant
in 2008. He confirmed meeting with plaintiff at their offices with
whom he consulted about the motor vehicle accident
in which deceased
was involved. Because he did not have enough information about the
collision, he wrote a letter to Dutywa Police
Station requesting the
relevant documentation. In due course he received the required
documents from the police after which he
visited the scene of the
collision. He then once again consulted with the plaintiff and
informed her that in his opinion, having
gone through the document
received from the police and visiting the scene of the collision,
deceased was the sole cause of the
collision. He explained that the
sketch plan was not of assistance because it had two points of
impact. (That was but one of the
deficiencies in the sketch plan.)
Amongst other difficulties with the sketch plan is that it did not
resemble the scene it was
meant to depict. The marking or points on
the sketch plan did not make sense. Measurements did not make sense.
There were no marks
at the scene as to where the motor vehicles ended
up after the collision. First defendant state that he did not consult
with insured
driver to get more information about the collision
because he reckoned he would exonerate himself. He also stated that
it did not
occur to him to find out whether there were any
eye-witnesses. That is why he decided to go to the scene of the
collision. The
first defendant testified that he told the plaintiff
it was open to her to seek a second opinion but in his “personal”
opinion the deceased was the sole cause of the collision. The first
defendant confirmed under cross-examination that he sought
documents
from the police with a view to recover / pursue plaintiff’s
claim against the Road Accident Fund as instructed
by the plaintiff.
It also emerged that he visited the scene of the collision alone and
the scene did not make any sense to him.
This was due to the fact
that the sketch plan did not resemble what he saw at the scene,
stating that the sketch plan was unreliable.
The first defendant
denied that he accepted a mandate from plaintiff – saying he
undertook an inspection of the scene of
the collision to see whether
there was a case or not. The first defendant was adamant that he did
not accept a mandate from the
plaintiff as a result of which he did
not require the plaintiff to give him a power of attorney.
[15] The following
is plaintiff’s cause of action as it appears from her
particulars of claim:
10.1 Sometime during
2008 after the deceased’s death, the Plaintiff instructed the
First Defendant, in his capacity as Attorney
of this Honourable Court
to take all steps necessary to institute a claim on her behalf for
damages suffered by her in her personal
as well as representative
capacity on behalf of her minor children as a result of the death of
deceased in the said accident.
10.2 The First
Defendant was at all times material hereto employed and acting during
the course and scope of such employment, with
the Second Defendant.
10.3 The First
Defendant duly accepted the mandate, which mandate required him to
thoroughly investigate all aspects of the Plaintiff’s
claim for
damages, and to make such decisions, and to make such recommendations
as may from time to time be necessary for the proper
conduct of the
claim and to make such recommendations in the best interest of the
Plaintiff.
10.4 The First
defendant, then practising as an employee with the second Defendant
duly accepted the mandate, which mandate require
him to thoroughly
investigate all aspects of the Plaintiff’s claim for damages
and to file a claim on behalf of Plaintiff
against the Road Accident
Fund, in accordance with the requirements of the Road Accident Fund.
10.5
The First Defendant whilst acting in his capacity as an Attorney of
this Honourable Court advised the Plaintiff that her claim
against
the Road Accident Fund will not be successful as the deceased was the
sole cause of the accident. As a result of this professional
advice
which was later found not to to be true, the First Defendant failed
to lodge the Plaintiff’s claim within the time
period allowed
by the Road Accident Fund.
[16]
It was contended on behalf of the plaintiff that the first
defendant’s failure to lodge plaintiff’s claim resulted
in plaintiff’s claim prescribing and that therefore he is
guilty of professional negligence. Further that he did not exercise
the degree of care, diligence and skill to be expected of an average
practitioner before pronouncing on the prospects of plaintiff’s
claim against the Road Accident Fund.
[17]
The failure to pursue plaintiff’s claim resulted from the first
defendant’s opinion and resultant advice to the
plaintiff that
deceased was the sole cause of the collision. And that therefore the
Road Accident Fund will not compensate her.
[18]
It does not seem to be in dispute that when plaintiff wanted to
discuss the lodging of the claim against the Road Accident
Fund, she
was referred to the first defendant by his partner
Mr
Nombambela
who handled the winding up
of deceased’s estate. It is not in dispute that plaintiff held
discussions with the first defendant
and gave him instructions to
lodge a claim on her behalf to the Road Accident Fund. It is further
common cause that the first defendant
sought the accident report from
the police. The only dispute in this regard is the manner in which
the accident report was obtained
from the police. Evidence reveals
that after going through the report and visiting the scene (although
according to the plaintiff
it was after consulting the sketch plan)
the first defendant expressed the view that the plaintiff did not
have a case against
the Road Accident Fund because the deceased was
the sole cause of the collision. See defendant’s plea –
5.5 –
where in relation to paragraph 10.5 of plaintiff’s
particulars of claim, defendants state that
“
Contents
of this paragraph are correct in so far as the advice by the first
defendant on the success of the claim, however the rest
is denied and
plaintiff is put to proof of the allegations. Defendant repeats the
last sentence in sub-paragraph 5.4 above”.
The
last sentence of paragraph 5.4 reads
“
Plaintiff
was then advised by word of mouth by first defendant to consult any
other attorney for another legal opinion”
.
Defendants deny that plaintiff gave them a mandate to institute a
claim against the Road Accident Fund on her behalf. The defendants’
plea in this regard is somewhat confusing. In her particulars of
claim plaintiff alleges that the first defendant was instructed
to
take all reasonable steps necessary to institute a claim on her
behalf. Defendants respond as follows in their plea:
AD PARAGRAPH
10 THEREOF
“
5.1
First Defendant admits that he is an Attorney however denies the rest
of the allegations set out herein. In amplification thereof
1
st
Defendant avers that when the plaintiff met with him she knew exactly
what she wanted and she was referred to the 2
nd
Defendant’s office by the Master of the High Court for the
administration of her late husband’s estate.”
In
my view this can be understood to mean plaintiff knew what she
wanted, with the estate issue being handled by
Mr
Nombambela
, she wanted the issue of the
claim against the Road Accident Fund attended to. The defendants do
not dispute that
Mr Nombambela
referred the plaintiff to the first defendant in this regard. In his
evidence the first defendant stated that he took the matter
up and
met with the plaintiff. He had a first meeting with the plaintiff in
his office. Because he did not have the full particulars
in relation
to the motor vehicle accident, he made arrangements to obtain the
relevant documents from the police. He agreed during
cross-examination that he was instructed to pursue the claim against
the Road Accident Fund. At times during cross-examination
the first
defendant conceded that the plaintiff gave him a mandate. But would
also be heard to say he did not accept the mandate
otherwise he would
have made the plaintiff to sign a power of attorney. He denied that
he was pursuing that mandate when he visited
the scene of the
collision for an inspection, stating that he wanted to verify whether
there was a claim / case against the Road
Accident Fund.
[19]
In my view the verification and investigation the prospects of
success of the claim is a necessary step towards instituting
a claim.
In my opinion, by considering the accident report and visiting the
scene of the accident, first defendant was carrying
out plaintiff’s
instructions to pursue a claim against the Road Accident Fund.
[20]
The question to be answered therefore is whether or not in doing so
he exercised the degree of care, diligence and skill expected
of an
average practitioner.
[21]
In argument,
Mr Cole
for the plaintiff submitted that as a bare minimum to enable one to
formulate an opinion whether the plaintiff has a claim against
the
Road Accident fund, the average attorney would require
inter
alia
: a statement from either one of
the drivers or an objective witness as to how the collision occurred;
an inspection
in loco
of the scene assisted by a witness to the accident; after gathering
sufficient information about the accident, would take time
to
consider the law and the requirements of minimal degree of negligence
before advising the plaintiff that she had no claim.
[22]
In countering this argument,
Mr
Nombambela
for the defendants submitted
that the first defendant could not have accepted a mandate from the
plaintiff not knowing whether
she had a good claim or not. It was
argued that all what the first defendant did was agree to investigate
whether or not there
was a case against the Road Accident Fund. He
did not accept a mandate to pursue or prosecute the claim.
[23]
In my view this argument loses sight of the fact that the advice by
the first defendant stopped the process of lodging a claim
against
the Road Accident Fund in its tracks. The plaintiff had entrusted him
with the tast of taking all the necessary steps to
institute a claim
on her behalf. After the initial step – investigating the
prospects of the claim, the first defendant advised
that the
plaintiff did not have a case against the Road Accident Fund because
the deceased was the sole cause of the collision.
[24]
The defendants blame the plaintiff for not having approached
Mr
Nombambela
who had been handling the
deceased’s estate to inform him about what the first defendant
to whom he has referred her for
the motor vehicle accident claim was
saying. I do not think that this is a valid complaint or that it is
of moment that the plaintiff
did not do so. It has to be borne in
mind that it is
Mr Nombambela
who
referred the plaintiff to the first defendant to deal with matters
relating to the claim against the fund. A partner in his
firm. It
must also be borne in mind that the plaintiff and her late husband
were long standing clients of the second defendant.
A point
Mr
Nombambela
stressed over and over
again. What business would the plaintiff have doubting advise given
under these circumstances. What business
did she have to second guess
the first defendant’s skill and competence? The situation may
have been different had the first
defendant (as he asserts) told the
plaintiff she could go and seek a second opinion from another
attorney. In that case, one could
expect that she would go back to
Mr
Nombambela
and seek his opinion. This
in my view militates against the first defendant’s assertion
that he told the plaintiff she could
seek second opinion.
[25]
The question still remains: did the first defendant exercise the
requisite care, diligence and skill in gathering information
enough
to enable him to give proper advice or opinion as to the prospects of
success of a claim for loss of support against the
Road Accident
Fund.
[26]
I am not certain what the first defendant intends to convey when he
repeatedly says it was his “personal opinion”.
Clearly
what he gave the plaintiff was a professional opinion – or his
opinion as an attorney tasked with looking into lodging
a claim with
the Road Accident Fund. He offered the advice or expressed an opinion
in that capacity.
[27]
It is trite that if an attorney does not bestow sufficient care and
diligence in the conduct of business entrusted to him,
he is liable
for the loss or damage suffered as a result of such lack of
sufficient care, skill and diligence or loss arising out
of his
negligence in regard to client’s business entrusted to him.
[2]
By his own admission, the first defendant had to contend with an
unhelpful / confusing sketch plan. The scene was even more confusing.
This is not surprising because he visited the scene and conducted an
inspection based on a confusing sketch plan, an accident report
that
did not provide much information and with no one to point out where
and how the motor vehicles in question collided. He also
does not
seem to have considered the requirement relating to minimal degree or
1% fault required on the part of the insured driver
for third party
or dependants claim to succeed.
[28] I am unable to
find that the first defendant exercised the degree of care, diligence
and skill expected of an average practitioner.
He did not exercise
the degree of care, diligence and skill expected of an average
practitioner. And by so doing, he acted negligently.
[29]
It is not in dispute that at all material times hereto, the first
defendant was employed and acting during the course and scope
of his
employment with the second defendant.
[30] For the
reasons stated above, the following order is made:
(a) The first and
second defendants jointly and severally the one paying the other, are
liable for the damages suffered by the plaintiff
for loss of support
arising out of the collision which occurred on the 11 February 2008
as a result of which the deceased died.
(b)
The defendants are ordered to pay the costs of suit jointly and
severally the one paying the other to be absolved.
N
G BESHE
JUDGE
OF THE HIGH COURT
APPEARANCES
For
the Plaintiff : Adv. SH Cole
Instructed
by : HP MNCWANGOATTORNEYS C/O XM PETSE INC.
4
th
Floor – Suite 445
Development
House
York
Road
MTHATHA
Tel.:
047 – 531 1572
Ref.:
HPM/JCK/NSN
For
the Defendants : Mr Nombambela
Instructed
by : MESSRS NS NOMBAMBELA INC.
No.
7 Beaufort Street
MTHATHA
Tel.:
047 – 532 6542
Ref.:
NSN/nvn/B-6512
Date
Heard : 5 May 2015, 24 and 25 August 2015
Date
Reserved : 25 August 2015
Date
Delivered : 26 May 2016
[1]
Uniform
Rules of this Court.
[2]
See
Steyn NO v Ronald Bobroff and Partners
2013 (2) SA 311
and
authorities quoted therein.