About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2015
>>
[2015] ZAGPPHC 1015
|
|
Maredi v MKM Attorneys and Others; In re: Maredi v MKM Attorneys and Others (52777/2011, 52778/2011) [2015] ZAGPPHC 1015 (2 July 2015)
HIGH
COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
NOT
REPORTABLE
NOT
OF INTEREST TO OTHER JUDGES
CASE
NO: 52777/2011
DATE:
2 JULY 2015
In
the matter between:
INNOCENTIA
MOSIMA
MAREDI
..........................................................................................
Plaintiff
And
MKM
ATTORNEYS
.......................................................................................................
First
Defendant
EXECUTOR
(in the Estate of late H.M
Nkosi)
........................................................
Second
Defendant
MASTER
OF THE NORTH GAUTENG HIGH
COURT
........................................
Third
Defendant
CASE
NO: 52778/2011
NAOMI
MORONGWA
MAREDI
.............................................................................................
Plaintiff
And
MKM
ATTORNEYS
.......................................................................................................
First
Defendant
EXECUTOR
(In the Estate of late H.M
Nkosi)
.......................................................
Second
Defendant
MASTER
OF THE NORTH GAUTENG HIGH
COURT
........................................
Third
Defendant
JUDGMENT
MAKGOKA.
J
[1]
These are consolidated actions, in which the plaintiffs claim
damages from the first defendant (MKM Attorneys), a firm of
attorneys,
based on alleged professional negligence. Against the
second defendant, the executor in a deceased estate, they claim the
same
relief in the alternative. The actions are a sequel to the death
of Mr. Mause Abram Maredi (the deceased) who was killed by Mr.
Happy
Maluta Nkosi (Nkosi). The plaintiffs’ claim is defended only by
MKM Attorneys. The executor has not defended the action.
There is no
substantive relief sought against the third defendant, the Master.
[2]
The plaintiffs are, respectively, the daughter and widow of
the deceased. Under case 52777/2001 the plaintiff is the deceased’s
major daughter, who claims on her own behalf. Under case number
52778/2011 the plaintiff is the deceased’s widow, who acts
personally and on behalf of her three minor children of whom the
deceased was the natural father. The genesis of the plaintiffs’
claims is the tragic events of 11 August 2006. During a business
meeting of shareholders and directors, Nkosi went on a shooting
spree, killing the deceased and a Mr Masombuka in the process, and
injuring others. Nkosi immediately thereafter committed suicide
by
shooting himself. The second defendant is the appointed executrix in
the estate of Nkosi. In their particulars of claim, the
plaintiffs
allege that they were both dependent for maintenance and support on
the deceased, and that as a result of his killing
by Nkosi, they had
suffered loss of support and maintenance, for which the estate of
Nkosi is liable.
[3]
As a result, so allege the plaintiffs, they instructed MKM
Attorneys during 2007 to issue summons against Nkosi’s estate
for
loss of maintenance. It is further alleged that MKM Attorneys
negligently failed to carry out those instructions with the result
that the plaintiffs’ claim against Nkosi’s estate became
prescribed on 10 August 2009, being three years from the date
of the
deceased’s death, alternatively 2 August 2010, being the date
on which the inquest report was filed. The plaintiffs
accordingly
allege that they have no recourse against Nkosi’s estate for
their damages. According to the plaintiffs, MKM
Attorneys also failed
to inform plaintiff of the consequences of the prescription Act;
and/or that circumstances existed which
caused it to be unable to
issue summons as instructed; and/or failed to properly investigate
the amount of the assets and claims
in favour of Nkosi’s
estate.
Alternatively,
in the event it being found that the claim against Nkosi’s
estate did not become prescribed, plaintiffs allege
that Nkosi’s
estate is liable for their respective alleged losses.
[4]
In its pleas in both actions, MKM Attorneys pleaded that its
mandate was investigate the possible shareholding of the deceased in
various companies and the estate of Nkosi with a view of advising the
plaintiffs on the prospect of claiming damages from Nkosi’s
estate as a result of the killing of the deceased by Nkosi.
Furthermore, it was to file a damages claim with the Executor of the
decease estate of Nkosi on behalf of the plaintiff.
[5]
The defendant admits that it did not issue summons against
Nkosi’s estate, for three reasons. First, that its
investigations
into Nkosi’s estate revealed that there was
little or no benefit that could accrue to the plaintiffs if actions
were instituted
against Nkosi’s estate. Second, Mrs Maredi was
properly advised of the risks associated with issuing of summons and
the costs
involved, on the one hand, and the prospect of recovering
any significant amount from Nkosi’s estate, on the other. Upon
this advise, Mrs Maredi elected, in her personal and representative
capacities on the one hand, and as representative of the plaintiff
in
case number 52777/2001, on the other, not to pursue litigation
against Nkosi’s estate. With regard to prescription, MKM
denied
that any claim against Nkosi’s estate had been extinguished by
prescription, for the following reasons:
(a)
MKM Attorneys filed a damages claim against Nkosi’s
estate in December 2007, and by virtue of s 13(1)(g) of the
Prescription
Act 68 of 1969 (the
Prescription Act) the
completion of
prescription of the claims in question against the deceased estate of
Nkosi was delayed until 1 year after the confirmation
of the final
liquidation and distribution account in respect of the said estate by
the third defendant;
(b)
MKM Attorneys lodged an objection to the liquidation and
distribution account drafted by the executor in Nkosi’s estate
during
September 2008 which account did not reflect the plaintiffs’
claims;
(c)
On 31 March 2011, after MKM Attorneys’ mandate to act on
behalf of the plaintiffs had been terminated, and immediately upon
receipt of the amended liquidation and distribution account in
Nkosi’s estate from the Master, MKM
Attorneys
informed the plaintiffs in writing to attend the Master’s
office should they wish to object to the said liquidation
and
distribution account (which again did not reflect the plaintiffs’
claims).
[6]
The plaintiffs each delivered a replication to the defendant’s
plea, in which they join issue with the defendant’s allegation
that it filed a claim against Nkosi’s estate. In particular,
the plaintiffs denied that MKM’s alleged claim filed against
Nkosi’s estate in December 2007, constituted a proper claim as
envisaged in
s 13(1)(g)
of the Prescription, in that it fails to
specify the causa and/or quantum of the claim. The plaintiffs
consequently denied that
prescription became delayed as alleged by
MKM Attorneys.
[7]
The following facts are common cause, or cannot be disputed.
Mrs Maredi’s claim for loss of support for herself and her
children
was not included in the liquidation and distribution account
dated 26 August 2008, nor the one dated 9 September 2010. Neither was
any summons issued against Nkosi’s estate for their claim. On
the other hand, an action in which Nkosi’s estate was
sued in
respect of bodily injuries sustained by other victims of Nkosi’s
shooting spree, was settled in this court in July
2010 in an amount
of R3,6m. In terms of the settlement agreement, it was noted that a
company known as Owl Eye Trading 110 had
declared dividends in favour
of Nkosi’s estate in an amount of R5,9m.
[8]
The issues of liability and quantum of damages were separated
in terms of rule 33(4) of the Uniform Rules of Court. The trial
proceeded
on the issue of liability only. Only two witnesses
testified - Mrs Naomi Morongwa Maredi (the plaintiff under case
number 52778/2011)
and Mr. DF Maritz, on behalf of MKM Attorneys.
[9]
As stated earlier, Mrs Maredi is the widow of the deceased.
She testified that she consulted with Mr. Maritz and instructed him
to claim maintenance from the Nkosi’s estate for herself and
her three children. She also instructed him to claim the shares
of
the deceased in a company called Silver Unicorn Trading 33 (Pty) Ltd
(Silver Unicorn). She instructed Mr Maritz to claim R5
million from
the estate. Mr Maritz indicated to her that she might not get R5
million because there were other claims. She informed
Mr Maritz that
Nkosi’s estate had money, as the latter was also a shareholder
of Silver Unicorn.
[10]
She told Mr. Maritz that a Mrs Patricia Mbiza was a
shareholder and director of Silver Unicorn, and that she would know
about the
shareholding of the deceased in Silver Unicorn. She
consulted with Mr Maritz a number of occasions, and on each occasion
Mr Maritz
would tell her there was no money in Nkosi’s estate,
while she asserted the contrary. In the end, she became dissatisfied
with how Mr Maritz was handling her case, as she put it: ‘He
(Mr Maritz) did not do as I instructed him’ and she eventually
terminated her mandate to him and instructed her present attorneys of
record.
[11]
The following salient points emerged from the
cross-examination of Mrs Maredi: She first instructed Mr Maritz
during May 2007. She
visited the offices of MKM Attorneys quite
regularly, in some instances without an appointment. She was in
mainly assisted by Mr
Maritz’s candidate attorney, Mr Andile
Zililo. who left the firm in October 2008 after qualifying as an
attorney. It was
put to her that after October 2008, after the
departure of Mr Zililo, she stopped contact with Mr Maritz, a
proposition which she
denied. She testified that after the departure
of Mr Zililo, she was often assisted by Mr Maritz’s daughter,
who is also
an attorney.
[12]
The last time she spoke to Mr Maritz after the departure of Mr
Zililo, Mr Maritz informed her that there was nothing else he could
do as there was no money in Nkosi’s estate. He even suggested
she should apply for voluntary surrender of her estate. It
was
further put to Mrs Maredi that there was no consultation between her
and Mr Maritz for the period beginning of 2009 until
September/October 2010. She stated that it was not because of lack of
effort on her part that, because she tried on many occasions
to see
him, but Mr Maritz was not prepared to see her. Also, there was a
period when Mr Maritz was indisposed and hospitalized.
She would,
however, visit the offices of MKM Attorneys and speak to Mr Maritz’s
daughter.
[13]
She confirmed having received a statement of account from MKM
Attorneys in October 2008, which Mr Maritz said it was not necessary
for her to pay. She confirmed that Mr Maritz during one of the
consultations showed her a liquidation and distribution account
in
Nkosi’s estate from which it appeared that there was no money
in the estate. However, she further stated that it was because
the
shares in Silver Unicorn were not reflected, that the account
reflected the estate not to have money. It was also put to her
that
after 15 October 2008, there was a consultation between him and Mr
Maritz in which she was allegedly told that there was no
point in
pursuing a claim against Nkosi’s estate and that she would have
agreed. She denied that.
[14]
Mr. Daniel Faure Maritz testified on behalf of the defendant.
An attorney with over 30 years’ experience, he testified that
he initially instructed by Mrs Maredi in May 2007. The main
instruction from her was very much to determine the shareholding in
various entities. There was an allegation of a fraudulent sale of
shares for R38 million. When Mrs Maredi approached him for the
first
time, her only complaint related to the money that her husband has
invested in several companies. Her instruction to him
was to
determine and to prove that her husband had been defrauded by his
co-shareholders. Emanating from the above, the other instruction
was
to lodge claim against the estate of Nkosi.
[15]
His initial steps were to make a follow-up to the findings of
the inquest into the death of the deceased. He also drafted an
affidavit
which was supposed to be signed by Mrs Patricia Mbiza
regarding the shareholding of the deceased in Silver Unicorn. She
obtained
most of the information contained in the draft affidavit
from Mrs Maredi and from a company search that he did. Mrs Mbiza
attended
his office in the presence of Mrs Maredi. However, she was
not prepared to sign that affidavit, but she verbally confirmed the
essence of what Mrs Maredi had told him about the shareholding. But
he needed some form of verification that the information was
correct.
At that stage he had made a determination that Mrs Maredi and her
children would have a claim against the estate of Nkosi
as the latter
had killed the deceased. But he also suspected that Maredi’s
estate was insolvent.
[16]
On 27 September 2007 he wrote a letter to a firm representing
various companies in which the deceased purportedly had an interest.
He stated that his instructions were that the deceased was a
shareholder and director of the following private companies:
(a)
Silver Unicorn
(b)
Nkundlakazi Trucks
(c)
Nkundlakazi Cargo
(d)
Botshelo Investment Holdings
(e)
Botshelo Transport Services
[17]
Mr Maritz further stated his instructions to be that
subsequent to the death of the deceased and one Masombuka, a 51%
shareholding
in Silver Unicorn held by Ndlukazi was purchased by the
remaining shareholders of Silver Unicorn for R3 million. The majority
stake
in Silver Unicorn was then resold to a third party investor,
for R38 million. As the deceased had a stake in both companies, he
sought to verify the correctness of his instructions ‘to assist
in the winding up of the (deceased’s) estate. He also
sought
the identity of the appointed executor in Nkosi’s estate. On 23
October 2007 the attorneys responded, and stated that
the deceased
was never a shareholder of any of the companies, save for
Inkundlakazi Cargo. The attorneys also pointed out that
any claim by
Mrs Maredi or the deceased’s estate would be against Nkosi’s
estate.
[18]
On 19 December 2007 Mr Maritz wrote to the attorneys appointed
as the authorized agent of the executrix in Nkosi’s estate.
This letter is particularly important, as would appear later in the
judgment. For that reason, the relevant portions of the letter
are
quoted in full:
1.
We act on behalf of the beneficiaries and executrix of the
estate late Mause Abram Maredi (estate No 25151/06). We are
instructed
that you are the appointed executor of the above (Nkosi’s)
estate, alternatively that you act as authorized representative
of
such executor.
2.
Would you kindly advise whether our instructions are
correct(?). If so, please note that we have been instructed to file a
personal
damages claim against the above estate, on behalf of the
beneficiaries of the estate late Mause Abram Maredi.
3.
You may be aware of the fact that the outcome of an inquest
held at Pretoria on 3 August 2007 confirms that the death of the late
Mr Maredi was caused by an offence by the late Happy Malutha Nkosi,
which would constitute murder.
4.
Pursuant to our enquiry, kindly confirm that you have
determined the extent of interest that the deceased Mr Nkosi had in
the following
companies, in his capacity as shareholder and/or
director:
(a)
Silver Unicorn Trading (Pty) Ltd
(b)
Owl Eye Trading 110 (Pty) Ltd
(c)
Inkundlakazi Cargo (Pty) Ltd
(d)
Botshelo Transport Services (Pty) Ltd
5.
Would you also please provide us with an assessment of the net
value of the estate and indicate to us who have submitted claims that
have been approved by the Master. If a provisional or Final Estate
Account has been drawn, would you kindly also provide such
details(?).
6.
We are currently instructed to determine the extent of our
client’s claim.
[19]
The attorneys representing the executrix in the Nkosi’s
estate did not respond to that letter until about five months later,
on 17 May 2008, and after Mr Maritz had, on 14 May 2008, threatened
to lay a complaint against the attorneys with the Law Society
of the
Northern Provinces. In their response, the attorneys stated that a
liquidation and distribution account had not been drawn
up due to the
fact that a property evaluation report had only been received a week
earlier, on 12 May 2008. The attorneys further
stated that they were
awaiting a ‘declaration of the deceased’s shares’
for the liquidation account to be finalized.
[20]
During or about September 2008, so testified Mr Maritz, a
liquidation account in Nkosi’s estate ‘came to (his)
attention’.
He immediately consulted with Mrs Maredi. His
understanding was that there was no real value in the estate of
Nkosi. It seemed
to him that the executor was also struggling to get
information regarding the shares as the values for shareholding was
left blank.
Mrs Maredi was in a precarious financial position. He had
worked almost for free for her, and it came to a stage where he could
not carry on like that. He explained to Mrs Maredi that from the
liquidation and distribution account, there was no money in Nkosi’s
estate.
[21]
He also brought to her attention that there was no provision
for her claim in the liquidation and distribution account. As a
result,
he wrote a letter to the attorneys assisting the executrix in
Nkosi’s estate, dated 1 September 2008. In that letter, he
stated the following:
‘
We
confirm that you have already submitted a liquidation and
distribution account to the Master’s office and the nett value
thereof excludes the value of shares in the companies indicated in
our letter sent to you dated 19 December 2007. Kindly provide
us with
an assessment of the net value of the estate and indicate to us who
have submitted claims that have been approved by the
Master and we
will object to the account as our claim is not yet included.’
[22]
On the same date, 1 September 2008, Mr Maritz wrote to the
Master and sated the following:
‘
We
have been informed by the attorneys (Modiba Attorneys) handling the
above esate that a liquidation and distribution account has
already
been submitted with your office. On many occasions before the account
was submitted to your office we have indicated to
the attorneys that
we are instructed to claim against the Estate for loss of support and
maintenance on behalf of our client and
minor children. The last
correspondence was that the account was not yet drawn up due to the
delays in their evaluation report.
We therefore object to the account
as submitted to the Master’s office because our client’s
claim is not yet attended
to.’
[23]
On 17 September 2008 the Master acknowledged receipt of the
letter and indicated that objection had been referred to the
‘executor’
for ‘his’ comments (sic). On 4
October 2008 Mr Maritz wrote to Mrs Maredi and confirmed that she had
instructed him
to ‘retrieve our archived file content, which we
enclose herewith ...’
[24]
On 15 October 2008 Mr Maritz wrote a letter to Mrs Maredi and
informed her that he had raised an objection to the liquidation and
distribution account of Nkosi’s estate and that the Master had
acknowledged receipt and would revert to him in due course.
He
further confirmed what was discussed in an earlier consultation about
the liquidation and distribution account which reflects
that Nkosi’s
estate was entitled to 50% of the shares of Owl Eye Trading (Pty) Ltd
and that the value thereof was not disclosed
in the account. Mr
Maritz further stated that there was no cash available on the
remaining items of the account. The letter concludes
with a statement
calling for ‘further instruction’ from Mrs Maredi.
[25]
Mr Maritz further testified that after the letter referred to
above, Mrs Maredi did not provide any further instructions to him.
She was in a financial precarious position and the estate of her late
husband was insolvent. He discussed with her the problems
encountered
and the fact that the executor could also not furnish him with
further information regarding the shareholding. According
to him,
until there was concrete information about shareholdings, there was
no way forward, and in his view ‘the whole thing
had stopped’.
[26]
Between 4 October 2010 and 31 March 2011, there was no
consultation between him and Mrs Maredi, especially after he wrote
the letter
to her on 15 October 2008. No effective consultation took
place, although Mrs Maredi would occasionally come into the office.
However,
there was nothing else he could do for her without the
required information concerning shareholding. As a result there was
no effective
consultation because she could not give further
information to take further matter.
[27]
Mr Maritz further testified that he did not issue summons
because judging from the first liquidation and distribution account,
and
information at his disposal, this was not advisable. As the value
of the shares could not be confirmed by executrix’s attorney,
the risk of instituting a formal action at that stage, and
thereafter, was too high. This was discussed with Mrs Maredi on
various
occasions. According to him, it would have been highly
irresponsible to issue summons with the information at his disposal.
He
went to great length to discuss this with Mrs Maredi, and that
until new information comes to light, it would be far too risky to
institute an action.
[28]
There was no verification of her continuous claims that there
was money in the estate. Although she was obviously unhappy about the
advice, she agreed that to institute formal legal action would not be
advisable. Nothing of significance happened after 15 October
2008
until 31 March 2011 when Mr Maritz received from the Master, the
‘first and final liquidation account’ in the
estate of
Nkosi, which showed a gross value of R3 049 058.
[29]
During cross-examination, Mr Maritz reiterated his stance that
his letter dated 19 December 2007, more fully referred to in para
[18] above, constituted a claim filed claim against Nkosi’s
estate. He conceded however, that there was there was no formal
claim
lodged but all was done in the correspondence.
[30]
He further conceded that when he discussed the difficulties in
the matter with Mrs Maredi, he did not advise her of the risk of
prescription because in his view, he had filed a claim and lodged an
objection, which would delay prescription.
[31]
From the evidence pleadings and the evidence summarized above
Mrs Maredi and her daughter’s instruction to MKM Attorneys was
to file a claim against the estate of Nkosi, and if necessary, issue
a summons against the estate, in each case. The issue is whether
MKM
Attorneys failed to carry out the mandate. To determine the issue,
the following questions, to my mind, have to be answered:
(a)
Did Mr Maritz lodge a claim against Nkosi’s estate?
(b)
If the answer to the above is in the negative, did Mr Maritz
do all what was expected of him as an attorney, to gather the
necessary
information to enable him to lodge a claim against Nkosi’s
estate? Put differently, was Mr Maritz diligent in carrying out
mandate entrusted to him?
(c)
Was there an agreement between Mr Maritz and Mrs Maredi that
given the difficulties in verifying the shareholding of the deceased
and Nkosi, summons should not be proceeded with?
[32]
I consider the above, in turn.
Lodging
of a claim
[33]
Mr
Maritz relies on his letter dated 19 December 2007 as a valid claim
against the estate. In terms of s 13(1 )(g) where the debt
is the
object of a claim filed against the estate of a debtor who is
deceased, prescription is delayed by a year. In the case of
a
deceased estate there are no prescribed formalities for filing a
claim. There is direct authority for the proposition that delivery
of
an informal notice of claim will be sufficient to cause delay of the
completion of prescription.
[I]
In the present circumstances, a proper construction should be placed
on the contents of the letter dated 19 December 2007 to determine
what was intended thereby, and what a reasonable reader would
understand it to convey.
[34]
In this regard, the following should be borne in mind:_This
letters does not contain any amount claimed. It was also not framed
as a claim, but rather more than an enquiry seeking information. The
relevant paragraph states that ‘we have been instructed
to file
a personal damages claim against (the estate) on behalf of the
beneficiaries of the estate late Mause Abram Maredi.’
In my
view, even an informal one, a claim should contain sufficient
particularity to enable the executor to make a determination
as to
what is being claimed against the estate.
[35]
The penultimate paragraph of the letter makes it plain what
the purpose of the letter was at that stage - to be appraised of the
net value of the estate. It should also be borne in mind the view of
Mr Maritz at that stage, and indeed throughout the relevant
period -
he was not persuaded that anything beneficial would come out of
Nkosi’s estate. There was nothing precluding him
to state a
figure in the letter as the amount claimed, pending verification of
the information and quantification of the claim.
[36]
It was common cause during the trial that an amount of R5 m
was mentioned by Mrs Maredi as the amount she wished to claim. Mr
Maritz
could simply have put in that figure in the letter as the
amount claimed against the estate. I am certain that had that been
done,
that claim would have appeared as a claim against the estate in
the liquidation and distribution account he received in September
2008.
[37]
It is safe to conclude that the only reason it was not
included is because no reasonable reader of the letter would, in my
view,
have considered it as a claim against the estate. At best for
Mr Maritz, it would have been construed as a notice of intention to
lodge a claim, once all the necessary information was on hand. The
last paragraph of the letter says so. I therefore conclude that
the
letter did not constitute a claim against Nkosi’s estate, and
therefore, did not delay completion of prescription.
Diligence
[38]
In this regard, Mr Maritz did not attempt to get more
information about the shareholding, if he was skeptical of the
information
furnished to him by Mrs Maredi. Besides, that information
had been orally confirmed to him by Mrs Patricia Mbiza.
Apart
from enquiring with an uncooperative attorney, he did absolutely
nothing to verify the information. It should be borne in
mind that
Mrs Maredi gave Mr Maritz very detailed information which enabled him
to prepare the affidavit that was supposed to be
signed by Mrs
Patricia Mbiza. That should have suggested to him that the
information was credible. He could have easily verified
the
information from the company registration office or from the auditors
of the various companies. He did not. For that reason
I conclude that
he was not diligent in carrying out the mandate entrusted to him.
Alleged
agreement not to proceed with legal action
[39]
Mr Maritz is adamant that on various occasions he consulted
with Mrs Maredi and explained the difficulties regarding verification
of the information, and the risks associated with legal action under
those circumstances. He says eventually Mrs Maredi agreed
that legal
action against the estate be abandoned, until she could furnish
further information on the matter. This, he testified,
was early
2009.
[40]
He was however, unable to provide a date on which such
agreement was reached. He was unable to provide any consultation
notes in
this regard. He says that it was an oral agreement. This
would have been a very important consultation for him because that
would
have meant that his mandate had come to an end without
achieving what the client had initially instructed him to do.
[41]
As a prudent and experienced attorney with over 30 years’
experience, he would have kept meticulous notes of such
consultations,
and confirmed the agreement in writing. Mr Maritz
conceded that he did not write a letter to Mrs Maredi confirming the
alleged
agreement and stating that he regarded the matter as having
being finalized in terms of the alleged agreement, and that he was
closing his file as a result. He informed neither the Master, nor the
attorneys representing the executrix in Nkosi’s estate
of the
termination of his relationship with Mrs Maredi. This explains why,
as late as March 2011, the Master sent the final liquidation
and
distribution account to him. He did not inform Mrs Maredi of the risk
of prescription, so that she could exercise her options
to seek
second opinion on her matter.
[42]
It is because of that reason that Mrs Maredi continued
visiting his office. It is clear from the totality of the evidence
that throughout
the relevant period, she still considered herself a
client of the firm. Although Mr Maritz would be unwilling to see her,
she would
see his daughter. In his own evidence, Mr Maritz testified
that during the relevant period, ‘no meaningful consultations
took place’, thereby strongly suggesting that there was
interaction between Mrs Maredi and the firm. This lends credence to
Mrs Maredi’s version that she wished to proceed with legal
action against Nkosi’s estate, and that there was no agreement
to pursue legal action.
[43]
I therefore find that Mrs Maredi has established her case on a
balance of probabilities. MKM is liable to compensate her and her
children for loss of support in the amounts as they may prove them.
[44]
In the result I make the following order:
1.
The first defendant is liable to compensate each of the
plaintiffs under case number 52777/2011 and under case number
52778/2011
for their proven or agreed damages as a result of the
failure of the first defendant to lodge a claim against the estate of
late
HM Nkosi and/or the first defendant's failure to timeously issue
and serve summons against the estate of HM Nkosi, following the
killing of Mause Abram Maredi on 11 August 2006 by Malutha Happy
Nkosi;
2.
The first defendant is ordered to pay the costs of this part
of the action;
3.
The determination of the quantum of the plaintiffs’
damages is postponed sine die.
T.
M. Makgoka
Judge
of the High Court
Judgment
delivered: 2 July 2015 Appearances:
For
the Plaintiffs: Adv. J Viljoen
Instructed
by: Malan & Mohale Attorneys, Pretoria
For
the First Defendant: Adv. J Vorster SC
Instructed
by: Savage, Jooste & Adams Inc, Pretoria
No
appearance for the second and third Defendants
[I]
Frasers
Ltd
v
Estate
Cohen
1965 (3) SA 271
(O) at 274A.