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[2015] ZAGPPHC 95
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Ngwenya v Paul Masha INC (20200/2011) [2015] ZAGPPHC 95 (13 February 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, (PRETORIA)
CASE NO:
20200/2011
DATE: 13 FEBRUARY
2015
NOT REPORTABLE
NOT OF INTEREST
TO OTHER JUDGES
In the matter
between
NGWENYA, MXOLISI
NICHOLAS
.......................................................................................
PLAINTIFF
and
PAUL MASHA INC.
….........................................................................................................
DEFENDANT
JUDGMENT
MUDAU AJ:
[1] The plaintiff,
who is described in the particulars of claim as ‘a major male
was injured in a motor vehicle collision
upon Thabo Mbeki Drive,
Heidelberg, on 2 April 2004. He instructed attorneys (the defendant)
to recover compensation from the Road
Accident Fund in respect of the
damages he had sustained as a consequence of his injuries. The
plaintiff’s claim had to be
lodged within three years of the
date of the collision, and any action necessary thereafter to enforce
the claim had to be instituted
within five years of the date of
collision. The debt in issue is one within the meaning of
s 11
(d) of
the
Prescription Act 68 of 1969
and was thus susceptible to
extinction by prescription after three years.
Section 12(1)
of the
Act provides that prescription begins to run as soon as the debt is
due.
[2] In his plea the
defendant contends that it could not carry out the plaintiff’s
mandate to pursue the claim against the
Road Accident Fund as the
plaintiff failed/refused to provide it with the necessary documents
relating to the hospital to which
he was treated after the incident.
Further that the plaintiff failed/refused to provide for a reference
number with regard to his
admission at the hospital.
[3] In this case,
the defendant was served with a notice regarding this trial on 28 May
2014. However, there was no appearance for
the defendant.
[4] At the beginning
of the trial, the issue of quantum was in terms of
rule 33
(4) of the
uniform rules separated from the question of damages.
[5] It is the
plaintiff’s evidence that, on the day of the accident he was
walking on the other side of the road when a motor
vehicle approached
from behind and knocked him. As a result, he sustained injuries that
required treatment in hospital. As a result
of the injuries
sustained, he suffered damages. It is his evidence that the defendant
was given everything relevant to pursue the
claim with the Road
Accident Fund.
[6] The plaintiff’s
mother, Mrs Ngwenya also testified and confirmed the plaintiff’s
evidence in as far as she was affected
thereby. It is her evidence
that the defendant was recommended to them by a neighbour, Miss Rika,
who used to work for the defendant.
It is further her evidence that
she gave the defendant copy of the plaintiff’s hospital card as
well. During 2010 when she
realised that there was no progress or any
feedback by the defendant regarding this matter she went to the
police station to seek
advice. It was there that she was given the
names of the current attorneys for the plaintiff who, took over the
matter.
[7]
It is trite that the attorney-client relationship imposes a duty on
an attorney to advance the interests of his client
."Professional
negligence is the failure by an attorney to act with the competence
reasonably expected of ordinary members
of the attorney’s
profession. An attorney must be meticulous, accountable,... He or she
must serve his client faithfully
and diligently and must not be
guilty of any unnecessary delay. He or she must once he or she has
undertaken the client’s
case, not abandon it without lawful
reason or excuse. An attorney who fails to explain his or her precise
instructions and lays
possum invites an adverse inference against him
or herself. Where a client’s claim prescribes under his or her
watch, he
or she is guilty of a breach of his or her mandate and duty
to his or her client by his or her failure to present countervailing
evidence that his or her mandate and instructions were circumscribed
and not open ended.”
(Ramonyai
v L P Molope Attorneys (2010/29310) [2014] ZAGPJHC 65 (27 February
2014) at para 16.)
[8]
In this case, I am satisfied that had the defendant carried out his
duties competently and diligently it would not have been
difficult to
pursue the plaintiffs claim against the Road Accident Fund with the
information at his disposal. A
prima
facie
a
case has been made
for
the
damages that the plaintiff is claiming for.
[9]ln the premises
the following order is made:
An
order is made in terms of a draft document marked ‘X”
dated 13 February 2015.
MUDAU
TP
ACTING JUDGE OF
THE HIGH COURT