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[2016] ZAGPPHC 163
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Sibanyoni v du Toit-Smuts and Mathews Phosa Attorneys and Others (33002/12) [2016] ZAGPPHC 163 (2 March 2016)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE
NUMBER:
33002/
1
2
In
the matter between:
SIBANYONI:
OKIE
MESHACK
PLAINTIFF
and
DU
TOIT-SMUTS & MATHEWS PHOSA
ATTORNEYS
1st DEFENDANT
MR.
JOSHUA
SCHEEPERS
2nd DEFENDANT
DR
NAKEDI MATHEWS
PHOSA
3rd DEFENDANT
LEANDA
CILLIERS
4th DEFENDANT
S.W.
RHEEDER
5th DEFENDANT
JOHAN
OOSTHUIZEN
6th DEFENDANT
PIETER
GEORGE SLABBER VAN
ZYL
7th DEFENDANT
KHADIJA
DOCKRAT
8th DEFENDANT
JUDGMENT
MAVUNDLA,
J.
[1]
The plaintiff was a passenger in one of the two motor vehicles which
collided with each other on 19 February 2008 along N4 Highway
in
Ngodwana, Mpumalanga Province. The plaintiff instructed the
respondents to claim against the Road Accident Fund for the damages
he suffered as the result of the fractured left acetabulum and
fractured left femur,
inter alia,
injuries he sustained
in the said collision. His claim against the RAF was subsequently
settled by the defendant for an amount of
R103 500. 00 during
November 2011. The defendant accounted to the plaintiff and paid him
an amount of R80 000. 00 in November 2011.
It is not in dispute that
the plaintiff s claim was under-settled. Consequently the plaintiff
claimed from the defendants jointly
and severally, the one paying the
other to be absolved, alleged damages he suffered in the amount of Rl
411130. 14, as the result
of breach of mandate and negligence on the
part of the defendants.
[2]
At the commencement of the hearing of the matter, by agreement
between the parties this court ordered in terms of rule 33(4)
separation of the issues in respect to breach of mandate in paragraph
20.1 to 20.11 of the particulars of claim and paragraph 8
of the
defendant's plea from the balance of the issues, the latter remaining
postponed
sine
die
with costs attendant
thereto. The Court further ruled that the defendant had the duty to
begin.
[3]
The defendants called two witnesses, namely the 2
nd
defendant,
the attorney in the first defendant who was handling the plaintiff's
claim and Mr David Nkosi employed as a clerk and
interpreter by
the first defendant. The plaintiff closed his case without calling
any witness.
[4]
In the unreported judgment of Fourie, Ursha Yvonne and Ronald
Bobroff & Partners Inc. case number 12/ 3663 (SHCJGB)
a matter
which involved an under settled claim against the attorneys, who
professed to be experts in third party claims sued for
negligence,
the following was cited by the Court:
"The
relevant Legal Principles
15.
The relevant principles relating to the liability of an attorney for
negligence are summarised by Harms in Amler's Precedents
of
Pleadings, Seventh Edition at page 59 as follows:-
"The
liability of an attorney towards a client for damages resulting from
that attorney's negligence is based on a breach of
the contract
between the parties. It is in terms of the contract that the
attorneys will exercise the skill, adequate knowledge
and diligence
expected of an average attorney. An attorney may be held liable for
negligence even if he or she committed an error
of skill, knowledge
and diligence.
In
order to succeed the client must allege and prove
(a)
The mandate;
(b)
Breach of mandate;
(c)
Negligence in the sense as described above;
(d)
Damages, which may require proof of the likelihood of success in the
previous proceedings;
(e)
That the damages were within the contemplation of the
parties when the contract was
concluded."
[5]
The
relationship
between
an
attorney
and
client
is
based
on
a
contract
of
mandate;
vide
Mort
NO
v
Chiat.
[1]
To
succeed
with
an
action
of
damages
against
an
attorney
there
must
have
been
a
want
of
skill
or
care
such
as to
amount
to
a
breach
of
contract.
Honey
and
Blanckenberg v
Law
[2]
where
it
was
held
that:
"5.1
Such liability arises out of contract and the exact duty towards the
client depends on what the attorney is employed to
do. In performance
of his duty or mandate an attorney holds him out to his clients as
possessing adequate skill, knowledge and
learning for the purpose of
conducting all business that he undertakes."
[6]
In the unreported judgment of Fourie v Ronald Bobroff and Partners
Inc. Gauteng Local Division, Case 12/3663 Gauteng Local division,
Johannesburg the court quotes with approval from Midgley that:
6.1.
Where a Plaintiff alleges that he suffered a loss
due to a settlement
that was too low, he needs to prove that the amount recovered is less
than the amount that would have been
determined by a properly
negotiated settlement or which a Court would've ordered;
6.2.
Every lawyer has a duty to establish the
facts and evidence to assist
his client. If a settlement is too low as a result of his failure to
investigate properly, he will
be held liable. In my view, once it is
conceded that there was an under settlement, the
onus
on
the part of the plaintiff is invariably discharged. The plaintiff
need not prove anything more.
[
7
]
It
was
held
in
Phillips
v
Fieldstone
Africa {PTY) LTD
and
Another
[3]
that
a
relationship
arising
out of a fiduciary duty has the following characteristics:
7.1.
Scope for exercise of some discretion or power;
7.2.
Power or discretion may be exercised
unilaterally
so as to effect a
beneficiary's legal or principal interests;
7.3.
Its existence, and its nature and extent, are questions of fact that
have to
be deduced from a thorough consideration of the substance of
the relationship and any relevant circumstances affecting the
operation
of that relationship. While agency was not a necessary
element of a fiduciary relationship, its existence almost always
provided
an indication of such a relationship. (Paragraph [27] of
Heher JA's judgment at 477H - I.).
[8]
The only defence open to a fiduciary who had breached his trust is
the free consent of the principal where there was full disclosure.
(Paragraph [31] of Heher JA's judgement at 479D - 480C/D), where
Heher held that the following approach commended itself as a
practical way of dealing with cases of the present nature:
Once
it was established that there was such a relationship, that
relationship had to be examined to see what duties were thereby
imposed on the agent. Having defined the scope of those duties, it
had to be determined whether he had committed some breach thereof
by
placing himself within the scope and ambit of those duties in a
position where his duty and interest possibly conflicted.
[9]
In
Barlow
Rand
Ltd
t/a Bar/aw
Noordelike
Masjinerie
Maatskappy
v
Lebos
and
Another
[4]
it
was
held that: There is a duty of care owed by an attorney, conducting
litigation on behalf of
a
client, to the Court and a duty of care owed towards his opponent,
which duty of care does
not
readily admits of clear definition. This duty
is
not a servile
one
but must at all times,
in my
view,
be
an
informed
one.
The
Court
has
the
prerogative,
depending
on
the
circumstances
of a case, to make a value judgment
to
decide
the issue relating
to
the
duty and acquittal thereof.
[
1
0]
The relationship between an attorney and client is one based on a
contract.
The
contract, by virtue
of
his profession and undertaking
to
his
client
professes
to be vested
with
adequate
legal
knowledge
and
skill to
advance
the
interest
of
client, imposes a fiduciary
duty
on the attorney
on
the attorney
to
act
with
professional
skill
and
diligence
towards
his
client.
Vide
Lekeur
v
Santam
Insurance
Co
Ltd;
[5]
RAF
v
Shabangu
and
Another
[6]
.
In
my
view,
making
a
value
judgment,
an
attorney
has a
professional
duty
towards
his
client
to
ensure
that
he
does not under settle his client's claim.
Vide
Boe Bank
v
Ries.
[7]
[11]
In
casu
it is not in dispute that the
claim was under settled. The defence proffered by the defendants was
that the plaintiff instructed
them to settle and accepted the offer
put on the table by the Road Accident Fund. Towards buttressing this
defence, the defendants
called two witnesses who testified on behalf
of the defendants.
In
my view, the issue to be decided is whether the defendant can be held
liable for having under settled the claim. The defence
of the
defendants was that the plaintiff instructed them to accept the
offer. To buttress this defence, only two witnesses testified
on
behalf of the defendants.
[12]
The defence raised must be measured against the evidence of the
attorney who was seized with the matter. Mr Scheepers, the
attorney
who was handling the claim on behalf of the plaintiff, conceded under
cross examination that he did not properly quantify
the claim of the
plaintiff against the RAF. He conceded that he never referred client
to a specialist in order to be able to properly
quantify his claim.
He conceded that he was duty bound to protect the interest of his
client after having properly investigated
the claim and advised his
client accordingly. He conceded that the plaintiff was never advised
of the monetary value of his claim.
As pointed out herein above in
paragraph [6]
(supra)
failure to properly collect sufficient
evidence to advance the plaintiff's claim against the RAF
in casu,
will result in the attorney being held liable.
[13]
In my view, an attorney who leaves his professional duties to an
ordinary clerk- cum- driver, to take instructions and advice
client,
cannot profess to have acquitted his professional duties to his
client.
In
casu,
Scheepers left it to Mr
David Nkosi, his clerk-cum -driver to explain to the plaintiff the
offer that was on the table. According
to Mr Nkosi, he informed
plaintiff that there was on the table an offer of R100 000. 00 and he
would get only an amount of R80
000. 00. Nkosi said that he informed
plaintiff that he may go to a medico legal experts and by so doing
his claim would be increased.
He did not inform him how long that
might take and how much more his claim would be. He said that the
plaintiff instructed and
insisted that the offer should be accepted
because he wanted to buy a motor vehicle. In my view, there is not
much weight this
Court need to place on the evidence of this witness
because he contradicted himself in various respects. The record will
bear testimony
to this fact. Besides, this Court was not impressed by
this witness.
[14]
In my view, Scheepers owed a legal duty and a moral duty to ensure
that he executes his client's mandate in the absolute professional
manner to ensure that he claims and or settles in the most favourable
amount for the benefit of the plaintiff.
In
casu,
the defendants contend that they settled the claim as the result
of the insistence of the plaintiff. I do not accept this explanation.
The accident occurred on the 19 February 2008.The matter was settled
in November 2011. For almost three years Scheepers had done
nothing
to properly quantify the plaintiff's claim. The Road Accident Fund
placed on the table an offer premised on the nature
of the evidence
placed before it by Scheepers. The probabilities are that had medico
legal experts report been placed before the
Fund, certainly a better
offer would have been placed on the table. Besides, the plaintiff was
not placed in a position to make
an informed decision about the value
of his claim. In my view, Scheepers was negligent in failing to
properly and professionally
handle the plaintiff's claim against the
Fund. As stated herein above, "An attorney may be held liable
for negligence even
if he or she committed an error of skill,
knowledge and diligence."
[15]
In my view, Scheepers, if indeed he was of the view that the
offer which was on the table was inadequate, he should then
have
advised the plaintiff in clear and certain terms that he is not
prepared to under settle his claim and in that case
he should
have done the honourable thing to withdraw from the matter and advise
the plaintiff to go to another lawyer. In my view,
Scheepers simply
did not care a damn about protecting the plaintiff's interest. This
is manifested by the very fact that for three
years after he received
instructions to prosecute the plaintiff's claim, he simply did not
collate sufficient evidence to place
him in a position to quantify
the actual or approximate value of the plaintiff's claim. Scheepers
did not know, as it came out
from cross examination, what the future
loss of earning capacity of
the
plaintiff was,
inter alia.
The contention by Scheeprs
that the plaintiff insisted that the offer which was on the table
should be accepted cannot, in my view,
hold water. The failure
to
obtained sufficient evidence far almost 3 years, is telling against
Scheepers. The plaintiff was not placed in a position to
make an
informed decision as to the true value of his claim, when he was
informed of the offer which was on the table. In my view,
Scheepers
cannot hide behind the alleged insistence of the plaintiff that they
must accept the under settled offer. The negligence
of Scheepers in
handling the plaintiff's claim is unpardonable. I find that Scheepers
was negligent in under settling the plaintiff's
claim and equally
liable to the plaintiff's proven damages. I find that the plaintiff's
claim against the defendants has been proven,
notwithstanding the
fact that the plaintiff did not testify.
[16]
The fact that the plaintiff did not take the stand, is in my view, of
no great moment, regard being had to the concession already
made by
Scheepers that the claim was under settled. In the final analyses, I
therefore conclude and find that Scheepers was liable
to the
plaintiff far under settling the plaintiff's claim. The instructions
were
nat
given to Scheepers in his personal capacity but as a
member of the first defendant. In the result any negligence on the
part of
a member of the first defendant, which results in any
liability of such member, such liability embraces all the members of
the
first defendant as they are all vicariously liable.
[17]
In the result this Court finds and orders that the defendants
are jointly and severally liable, the one paying the other
to be
absolved, to pay any proven damages of the plaintiff occasioned by
the under settling of his claim against the Road Accident
Fund
arising from the injuries he sustained in the motor vehicle collision
which occurred on the 19 February 2008 along N4 Highway
in Ngodwana,
Mpumalanga Province, together with costs of this action.
_____________________________
N.M.
MAVUNDLA
JUDGE
OF THE HIGH COURT
DATE
OF
JUDGMENT
: 02 /
03 /
2016
PLAINTIFF'S
ADV : ADV
PIET UYS
INSTRUCTED
BY :
SEKONYA ATTORNEYS
DEFENDANT'S
ADV : ADV E LABUSCHAGNE SC
INSTRUCTED
BY : SAVAGE
JOOSTE & ADAMS
[1]
2001 (1) SA 464 (C).
[2]
1
966
(2) SA 43
(SR) at
46/47.
[3]
2004 {3) SA 465 (SCA).
[4]
1
985
(4) SA 341
(T) at 347E-348
A
.
[5]
1
969(3)
SA
1(CPD)
at 6H-7A.
[6]
2004 (2) ALL SA 356
(SCA) at at 361
para
[1
1
]
-[
1
2].
[7]
2002 (2) SA 39
(SCA) at 46 \-47a.