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[2011] ZAFSHC 111
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Mlenzana v Goodrick and Franklin Inc (4423/08) [2011] ZAFSHC 111; 2012 (2) SA 433 (FB) (14 July 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No. : 4423/08
In the matter between:-
YOLISWA EUNICE
MLENZANA
…..................................................
Plaintiff
and
GOODRICK AND
FRANKLIN INCORPORATED
…....................
Defendant
_______________________________________________________
HEARD ON:
27 MAY 2011
_______________________________________________________
JUDGMENT BY:
RAMPAI, J
_______________________________________________________
DELIVERED ON:
14 JULY 2011
_______________________________________________________
[1] The plaintiff sues
the defendant for damages in the amount of R493 574,00 which she
alleges she has suffered as a result of
the defendant’s
negligence. Her damages arise out of a contract of mandate. She
engaged the defendant, a lawfirm, to act
as her attorneys against the
Road Accident Fund. The action is defended.
[2] In her summons the
plaintiff alleged that she engaged the services of the defendant in
Bloemfontein on or about 17 August 2004.
The contract of mandate was
then concluded. The defendant was obliged, in terms of the agreement,
to lodge her claim against the
Road Accident Fund for the recovery of
compensation for her loss of support and funeral expenses.
[3] She alleged that her
husband, Zamile Eric Mlenzana, sustained fatal bodily injuries in a
road accident which took place at Bethal
in Mpumalanga Province on 22
June 2004. The scene of the accident was at the intersection of
Eufees Street and Lakeside Avenue.
There were three motor vehicles
involved in the accident, which occurred at or about 08h00 hours. Her
husband, she alleged, was
a passenger in an International Truck with
registration number CPL905FS.
[4] According to her the
collision was occasioned by the negligence of one or more or all the
three drivers she named in her summons.
The various grounds of their
negligence were then spelt out.
[5] She also alleged that
her husband was employed as a truck driver and that during his
lifetime he had a legal duty to contribute
towards her support and
that he would have legally been obliged to continue to support her
had he not died as a result of the injuries
he sustained in the
aforesaid road accident.
[6] The plaintiff alleged
that, in breach of the aforesaid contract of mandate, the defendant
wrongfully neglected to lodge her
claim with the Road Accident Fund
within the three year prescriptive period from the date of the
accident in terms of
section 23
of the
Road Accident Fund Act, 56 of
1996
as amended. By the exercise of such care and diligence as could
reasonably be expected of an average attorney, the prescription
of
the plaintiff’s claim could have been prevented. So she
alleged.
[7] In the defendant’s
plea the following allegations of the plaintiff were doubted: the
alleged marriage of the plaintiff;
the alleged identity of the driver
of the International truck as being Mr. M.P. Mahlantsa; the alleged
status of Mr. Z.E. Mlenzana
as being a passenger on such a truck; the
alleged negligence on the part of any of the alleged drivers; the
alleged cause of the
victim’s death; the alleged employment of
the victim; the alleged duty of the victim towards the plaintiff; the
alleged loss
of support and plaintiff’s obligation to incur the
funeral expenses; the alleged details of the accident, the motor
vehicles
and owners thereof as well as the alleged grounds of
negligence. All these were not admitted.
[8] The defendant
admitted certain averments made by the plaintiff. I shall revert to
those admissions in due course. At this juncture
I am concerned with
the essence of the defendant’s defence.
[9] The defendant
specifically denied that his failure to lodge the plaintiff’s
claim in good time was caused by negligence
on its part. The
defendant specifically pleaded that its failure to lodge the
plaintiff’s claim was brought about by the
plaintiff’s
failure to provide certain information and to sign certain documents,
which were necessary to lodge her claim.
The defendant pleaded
further that despite all its reasonable attempts to obtain the
necessary information or documents from the
employer of the
plaintiff’s husband, such employer failed to provide same.
[10] The defendant
pleaded, therefore, that as a result of the plaintiff’s own
failure as well as of her husband’s employer
to furnish the
defendant with the necessary information and documents, the defendant
could not reasonably ensure substantial completion
of the claim
documents for the purpose of lodging the plaintiff’s claim with
the Road Accident Fund. The defendant pertinently
denied the
allegation that when the contract of mandate was concluded, the
parties ever contemplated that the plaintiff would suffer
damages in
the event of the defendant failing to lodge her claim within the
prescribed period with the Road Accident Fund. The
defendant also
specifically denied that it failed to exercise reasonable care in
executing the plaintiff’s mandate; that
any of its members or
employees was, at all material times, acting within the course and
scope of her employment with the defendant
and in the furtherance of
the defendant’s business interest and that the plaintiff had
suffered the alleged damages.
[11] By agreement between
the parties the issues were separated before the trial commenced. I
ordered that the issues of quantum
should be held in abeyance and
that the issues of liability be determined first. Therefore, at this
juncture I am only called upon
to determine the merits. The only
evidence I have to hear, will be limited to the broad question as to
whether or not the defendant
was liable for the loss which the
plaintiff allegedly suffered as a result of the defendant’s
alleged neglect to lodge her
third party claim with the Road Accident
Fund. The assessment of the quantum, that is the amount of the loss,
stands over for later
adjudication, if necessary.
[12] The plaintiff’s
cause of action against the defendant depends on proof of the
following
essentialia
: the likelihood of success in the
aborted proceedings against the Road Accident Fund; the conclusion of
the contract of mandate;
the breach of the mandate by the defendant;
the defendant’s negligence to execute the mandate and the
damages which were
contemplated by the parties at the time they
concluded the contract. I now proceed to consider whether or not each
of these elements
of a claim based on professional negligence has
been established.
[13] As regards the first
element, it was incumbent upon the plaintiff to establish that her
third party claim against the Road
Accident Fund was likely to
succeed. The element required proof that, but for the defendant’s
negligence, the Road Accident
Fund would have been obliged to
compensate the plaintiff. This in turn required the plaintiff to
establish that the victim’s
death was occasioned by the
exclusive or contributory negligence of one or more or all of the
alleged drivers: Logic dictates that
the alleged negligence relative
to driving be considered before the alleged negligence relative to
the execution of the mandate.
[14] The version of the
plaintiff as regards the merits of her third party claim against the
Road Accident Fund, was narrated by
one witness only, one Mr. Vuka
Aubrey Nkosi. His evidence was that he was a passenger sitting on the
trailer of the first vehicle,
viz
a Mercedes Benz truck driven
by Mr. Paulus Mahlangu. He was facing backwards in the direction of
Trichardts. It was misty that
morning. The second vehicle he saw, was
a red sedan. The third vehicle he saw, was a truck. The three
vehicles were travelling
in the same direction. They were travelling
towards Bethal in Mpumalanga from the direction of Trichardts. The
road on which they
were travelling was sloping towards an
intersection where four way stop signs regulated traffic.
[15] The first vehicle
was still travelling towards the intersection when he saw the third
vehicle. It was speeding down faster
and faster. The driver was
blowing its horn and flicking its headlamps, apparently struggling to
slow it down and driving on the
incorrect side of the road. The first
vehicle stopped at the intersection. The third vehicle kept on coming
closer and closer.
The first vehicle pulled off from its stationary
position, entered the intersection and turned right.
[16] The second vehicle
slightly moved to the left, away from the centre line of the road.
The third vehicle tried to move back
to its correct lane to avoid
colliding with the turning first vehicle. Its efforts were abortive.
It hooked the second vehicle,
went on to crash into the rear of the
trailer attached to the first vehicle and overturned. Its driver was
instantly killed. The
plaintiff’s case was then closed.
[17] The version of the
defendant was also narrated by a single witness, namely, Ms Maria
Julikana de Villiers. Her evidence was
that she was the driver of the
second vehicle, a sedan. The first vehicle, a Mercedes Benz truck,
moved and turned right towards
Bethal at the intersection. Her aim
was also to turn right like the first vehicle, while she was
gradually approaching the intersection,
she looked in her side mirror
and saw the third vehicle, an International Truck, approaching her
very fast from behind. It was
moving on the incorrect side of the
road. She realised that it was not going to stop. She alerted her
daughter, who was a passenger,
about the imminent danger posed by the
third vehicle.
[18] Her sedan was
already stationary when the third vehicle struck its front
right-hand-side, proceeded to strike the first vehicle
at the back
before it eventually overtuned. She stated that she looked in the
mirror as a matter of habit to ascertain whether
or not it was save
for her to turn right. However, she did not see the third vehicle
flickering its lights or heard it blowing
its horn. In an attempt to
avoid the collision, she slightly moved away towards the yellow strip
to her left. There was an oncoming
vehicle from Kriel. The
defendant’s case on the merits was then closed.
[19] Mr. Dutton, counsel
for the plaintiff, submitted that the plaintiff had established that
the driver of the first vehicle was
negligent and that his negligence
was the contributory cause of the collision which claimed the life of
the plaintiff’s husband.
However, Ms Bester, counsel for the
defendant, differed. She submitted that the driver of the first
vehicle was not negligent,
as alleged or on any other grounds
whatsoever. Accordingly, counsel urged me to find that the
plaintiff’s claim against the
Road Accident Road, was unlikely
to succeed even if the defendant had lodged it in good time.
[20] The following facts
were common cause or not seriously disputed: An accident happened at
Bethal in Mpumalanga on 22 June 2004.
The scene of the accident was
at the intersection formed by Eufees Street and Lakeside Avenue. In
other words, the vehicles collided
where the main road between
Trichardts and Kriel intersected the main road between Bethal and
Secunda. The accident took place
between 07h00 and 08h00. There were
three vehicles involved. The front vehicle was a Mercedes Benz truck
with registration number
CCP897MP and was driven by Mr. Paulus
Mahlangu. The middle vehicle was a sedan with registration number
CCJ890MP and was driven
by Ms M.J. de Villiers. The back vehicle was
an International truck with registration number CPL905FS and was
driven by a man,
to witnesses unknown. Before the accident, the truck
was seen by the plaintiff’s witness and the defendant’s
witness
moving on the wrong side of the road.
[21] The evidence further
revealed that the driver of the International truck was instantly
killed. According to the undisputed
evidence, there was no passenger
who was fatally injured. From these two facts, it implicitly followed
that the fatally injured
driver of the aforesaid truck was Mr. Zamile
Eric Mlenzana. Therefore, the defendant’s denial of the
plaintiff’s allegation
was correct. The victim was not a
passenger but rather a driver of the truck concerned. The legal
position is that if the collision
was caused by his sole negligence
in the driving of the truck, the Road Accident Fund would not have
been liable to the dependent
members of his family. In such a
scenario the defendant’s alleged professional negligence would
be negligence in the air.
[22] There is a duty, in
certain circumstances, for a driver to look in the rear view mirror
of a vehicle before turning to the
right. The court has held that a
motorist whose intention it is to execute a right hand turn, has a
duty to satisfy himself that
any signals which he may have given of
his intention so to turn, had actually been seen and heeded by the
other road users –
BROWN v SANTAM INSURANCE CO LTD AND
ANOTHER
1979 (4) SA 370
(W) at 374 A – B per Cilliers
AJ;
BUTT AND ANOTHER v VAN DER CAMP
1982 (3) SA 819
(A).
[23] The general duty of
a driver to keep a proper lookout includes both looking for vehicles
from whatever direction and listening
to them as well –
HARRINGTON NO AND ANOTHER v TRANSNET LTD AND OTHERS
2007 (2) SA 228
(C). In that case people on a railway track failed to
see or to hear an oncoming train. They then sued the defendant for
damages
as a result of the injuries they sustained in the train
accident. They were unsuccessful. The court held that they were
negligent
in that they should have heard or seen the train
approaching.
[24] In
S v PHILLIP
1968 (2) SA 209
(C) at 216 the court held that it was obviously
negligent for the driver of any vehicle on a public road to ignore
traffic signals
irrespective of whether they are visual or auditory.
[25] In the case of a
sudden emergency, the critical question is whether the driver ought
reasonably to have become aware, at the
stage when effective avoiding
action could still be taken, that the vehicle in an emergency was not
going to stop –
BAY PASSENGER TRANSPORT LTD v FRANZEN
1975 (1) SA 269
(A).
[26] The issue in the
instant matter was whether the driver of the front vehicle, Mr.
Paulus Mahlangu, ought reasonably to have
become aware, before he
turned right and at a stage when effective action could still be
taken to avoid the collision, that the
third vehicle was not going to
stop.
[27] The undisputed facts
were that the accident happened early in the winter morning; that
there was a mist in the vicinity of
the scene; that the intersection
was busy between 07h00 and 08h00; that traffic converged there from
Kriel, Trichardts and Secunda;
that there was geographical downhill
on the road from Trichardts towards the intersection; that the
traffic was regulated by means
of four way stop signs at the
intersection and that the driver of the first vehicle was in the
employ of Mooifontein Brickmakers,
whose factory was situated on the
outskirts of Bethal.
[28] The diminished
visibility early in the morning rush to work and the traffic
convergence should have made any reasonable driver
to be more careful
than usual. The evidence of Ms Viljoen was that the second vehicle
was gradually slowing down towards the intersection
when she first
saw the third vehicle speeding towards the intersection. She then
stopped. At that moment the first vehicle was
already inside the
intersection where it was busy turning right towards the town of
Bethal.
[29] On the other hand
was the evidence of Mr. Nkosi. The crucial aspect of his evidence was
that the crossing was still ahead of
the first vehicle when he
noticed the third vehicle descending towards the intersection. At
that moment the first vehicle had not
yet reached the intersection.
It was still moving towards the intersection. The third vehicle was
approximately 25 metres behind
the first vehicle at the time he first
saw it on the road.
[30] What emerges from
these two versions is significant in two respects. Firstly, Mr. Nkosi
saw the third vehicle earlier than
Ms Viljoen. Secondly, the third
vehicle was still some distance behind the first vehicle. Thirdly,
all the three vehicles were
still in motion at that stage. In those
circumstances an alert driver in the position of the first vehicle
would have carefully
used the rear view mirror in the cabin and the
side view mirror to ascertain the traffic situation behind him. In my
view, the
driver of the first vehicle ought reasonably to have become
aware, as Mr. Nkosi did, before he reached the intersection, that the
driver of the third vehicle was in some crisis. At the very latest,
as Ms Viljoen did, the driver of the first vehicle ought reasonably
to have seen the third vehicle after stopping but before he set his
truck in motion again in order to turn right.
[31] There was no sound
reason as to why Mr. Mahlangu did not become aware of the other truck
at the same time as Mr. Nkosi did.
If he was as alert as he was
expected to be, he would have realised before he even stopped at the
intersection, that the truck
which was speeding on the wrong side of
the road towards the intersection where he intended to turn right,
was not going to stop.
At that stage he still had an opportunity to
take an effective action to avoid the collision –
FRANZEN’S
,-case,
supra
. That he could have
done by delaying his actual manoeuvre to turn. Had he done that, he
would have given the truck speeding on
the wrong lane a chance to
safely overtake his stationary truck.
[32] Moreover, there is
no apparent reason as to why after stopping to obey a stop sign, he
simply turned across the traffic lane
on which the other truck was
dangerously travelling. If he had looked in the rear view mirror of
his truck, as Ms Viljoen did,
before he again started moving,
entering the intersection and turning, he would certainly have
realised, just like Ms Viljoen did,
that Mr. Mlenzana was not likely
going to stop on the wrong traffic lane to let him safely turn –
BROWN’S
-case,
supra
.
[33] Ms Viljoen did not
hear the hooting sound or see the flashing lights of the third
vehicle. If her evidence can be regarded
as been in contrast to that
of Mr. Nkosi, on these aspects, then the evidence of Mr. Nkosi on
those two aspects should be preferred.
In the first place, he was in
a better position to observe what was going on on the road behind the
lady’s vehicle than she
was. He was facing he third vehicle
whereas she was facing in the opposite direction. He was a passenger.
She was a driver. He
was on a higher position that she was. He used
his eyes whereas she used the mirror. He observed the third vehicle
approaching
from behind for a longer time than she did. In my view,
Nkosi’s observations were more reliable than those of Ms De
Villiers.
The driver of the first vehicle was negligent by ignoring
indications of hazards given by the driver of the third vehicle. The
hooting was so loud that it could be heard and the flashing so
conspicuous that it could be seen by a passenger on the truck he
was
driving –
PHILLIP’S
-case.
[34] In the instant
matter driver number 3 warned driver number 2 and number 1 who were
ahead of him of his dangerous approach.
He did so by sounding the
hooter and flashing the headlamps of his truck. This was a critical
distinction between this accident
and the usual accident at
intersections. The majority of collisions inside intersections are
usually occasioned by drivers who,
while driving on the correct lanes
negligently disobey the traffic stop signs or traffic lights. Here
the third driver did not
negligently drive on the wrong side of the
road. He did not deliberately disobey the stop sign. On the contrary,
he did so in an
attempt to avoid an accident. Mr. Nkosi’s
evidence was that he got the impression that something was wrong with
the brakes
of the third vehicle. He could see how the driver made
fruitless and desperate attempts to slow it down.
[34] It seemed to me that
the flashing of the headlamps, the blowing of the horn, the driving
on the incorrect side and the apparent
attempt to slow down,
indicated that the third vehicle was in a crisis and that the driver
did his best to warn the other road
users about the imminent danger
or crisis at hand. The hooting would have been heard, the flashing
would have been noticed and
the abnormal moving truck would have been
seen by the driver of the first vehicle had he been keeping a proper
lookout in the sense
of been alert and aware of his immediate traffic
surroundings. That then gave rise to a positive obligation on the
part of the
driver of the first vehicle to hear the hooting, to
examine the situation before executing a turn to ensure that there
were no
signs of danger. By noticing the fast approaching truck, the
lane on which it was travelling and its flashing headlamps, the
insured
driver would probably not have turned. In that way the
accident would have been avoided. I am persuaded, therefore, that he
failed
to keep a proper lookout. He could, but the third driver could
not, avoid the accident.
[36] I am persuaded that
Mr. Nkosi generally gave credible and reliable evidence. His evidence
was materially corroborated by the
defendant’s witness, Ms De
Villiers. Accordingly I find that the plaintiff has established on a
balance of probabilities
that her third party claim against the Road
Accident Fund was likely to succeed had it been lodged on time. It
follows from this
finding that she had a valid mva claim. It was
common cause that the plaintiff had to prove 1% negligence on the
part of the driver
of the first vehicle, Mr. Paulus Mhlongo, in order
to succeed. I am of the firm view that she has succeeded to prove
just that.
This conclusion makes imperative to proceed further.
[37] As regards the
second element,
viz
mandate, it was common cause that the
contract of mandate was concluded between the parties and that it was
a term of such agreement
that the defendant, through its members and
employees, would lodge the plaintiff’s third party claim
against the Road Accident
Fund for the recovery of damages for her
loss of support and funeral expenses. The averments were made in
paragraph 3 of the plaintiff’s
particulars of claim and
admitted in paragraph 2 of the defendant’s plea. Therefore, the
plaintiff has proved the second
element.
[38] Perhaps I need to
revert to the contract of mandate between the parties before I
proceed to the next element. The defendant’s
mandatory
obligation were, at least, to do all that was necessary and
practicable in order to ensure that the mva 13 claim form,
duly
completed, was duly delivered to the Road Accident Fund before the
period of prescription ran out. Since there was no debate
as to the
nature and scope of the contract of mandate between the plaintiff and
the defendant, this brief exposition thereof will
suffice.
[39] The defendant was
aware that the plaintiff sought compensation for the support she lost
and the funeral expenses she incurred
as result of the victim’s
death. Those were the damages within the contemplation of the parties
when the contract of mandate
was concluded. Moreover, the defendant
was fully aware that the plaintiff’s claim for compensation
against the Road Accident
Fund would become prescribed within three
years from the date upon which her right to claim arose.
Notwithstanding such awareness,
there was no delivery of the mva 13
claim form to the Road Accident Fund within the three year
prescriptive period following upon
the collision. Consequently, the
plaintiff’s right to recover compensation for the damages she
has suffered, was extinguished
by extinctive prescription. I have
already found that evidence adduced concerning the driving negligence
established, on a balance
of probabilities, that the driver of the
first vehicle or the front truck was also negligent.
[40] As regards the third
element,
viz
breach of mandate, it was also common cause that
despite the defendant’s acceptance of the plaintiff’s
instructions,
the defendant failed to lodge the plaintiff’s
claim with the Road Accident Fund within the prescribed three year
period as
from 22 June 2004. The plaintiff has, therefore,
established the third element as well.
The aforesaid conclusions
make it imperative to consider the question of the alleged negligence
pertaining to the execution of the
mandate.
[41] As regards the
fourth element, in other words, the defendant’s professional
negligence, there was no common cause. The
alleged negligence of the
defendant was in dispute. The plaintiff alleged that the defendant in
failing to lodge her third party
claim in accordance with the
provisions of the applicable legislation was negligent. To succeed,
the plaintiff had to show that
the defendant as an attorney, failed
to exercise the necessary skills, knowledge and diligence of an
average attorney.
[42] The defendant denied
the plaintiff’s allegation. The defendant put up the defence
that it could not reasonably ensure
that the claim documents were
properly completed for the purpose of lodging the plaintiff’s
mva claim with the Road Accident
Fund. According to the defendant it
could not lodge the plaintiff’s third party claim, firstly,
because the plaintiff failed
to provide the defendant with documents
and information when she was requested to do so and secondly, because
the employer of the
plaintiff’s husband also failed to do
likewise, despite the defendant’s direct request.
[43] In effect, the
defendant’s contention was that its failure to lodge the
plaintiff’s mva claim did not constitute
negligence since the
defendant had taken all reasonable steps in an attempt to obtain the
necessary information and documents for
the purposes of completing
the prescribed claim form. Put differently, the defendant contended
that it had done everything a reasonable
attorney would have done in
the circumstances to obtain the information necessary to lodge the
plaintiff’s third party claim.
[44] The plaintiff raised
a two pronged argument to meet the defendant’s aforesaid
contention, the main argument was that
the defendant should and could
in any event, have lodged the claim because it had sufficient
information to validly complete and
lodge the claim form. The
alternative argument was that, if it was found that the defendant did
not have sufficient information
to complete the claim form, which
primary contention the plaintiff still denied, the defendant
negligently failed to take reasonable
steps to obtain the required
information from the victim’s employer.
[45] The plaintiff’s
version in connection with the element of professional negligence was
narrated by Ms Yoliswa Eunice Mlenzana,
the plaintiff herself. Her
evidence was that she appointed the defendant on 17 August 2004 to
institute a third party claim on
her behalf. She testified that her
matter was handled by Ms Smith. She informed her that Zamile Eric
Mlenzana was her husband;
that he was employed as a truck driver;
that he earned R5 100,00 per month; that he was instantly killed in a
road accident; that
she suffered loss of support and incurred funeral
expenses in connection with his burial.
[46] She added that she
furnished the defendant’s representative with certain documents
such as her late husband’s identity
document, his salary
payslip, his marriage certificate, her identity document, his death
certificate, the funeral undertaker’s
account, her address and
contact number and the name of a certain Patrick, an eyewitness and
her late husband’s co-worker.
She complained that the attorney
was difficult to reach. She received no regular progress reports.
Every time she went to see her
attorney about the matter, she was
merely told that the matter was receiving attention or that her
attorney was not available.
[47] The version of the
defendant, in connection with the element of professional negligence,
was narrated by Attorney Stella Smith.
She testified that she held
the first consultation with the plaintiff on 17 August 2004 and the
last consultation on 28 February
2007. During that period she
received certain personal family documents from the plaintiff. By 18
January 2007 she had al the necessary
information concerning the
merits of the claim in her possession.
[48] From then on the
outstanding information necessary to complete the claim form and to
lodge the claim was limited to the amount
of the compensation to be
claimed. The plaintiff could give her no sufficient information
concerning contact details of her deceased
husband’s employer.
All she could provide was the name of the employer and that the
employer carried on business elsewhere
outside Bloemfontein. She
struggled to trace the employer, but eventually traced the employer
at Theunissen. However, the employer
was very uncooperative. He
refused to furnish her with the employer’s service certificate.
She wrote several letters to the
plaintiff in which she requested for
the necessary information such as her deceased husband’s salary
advice and bankstatement,
but she failed to provide the documents.
She required such documents in order to instruct an actuary. Without
such information
she could not appoint an actuary to compile an
actuarial assessment report.
[49] Since she was not
provided with sufficient information or documentation she could not
have the amount of the compensation calculated
by an actuary. As a
result of that she could not substantially complete the relevant
portion of the mva claim form. She was aware
that the plaintiff’s
personal claim would become prescribed on 21 June 2007. She asserted
that she was not furnished with
important documents such as the
salary advice of the plaintiff’s deceased husband, his contract
of employment, the employer’s
service certificate and various
other documents.
[50] During her
cross-examination, however, Ms Smith conceded that the plaintiff had
verbally informed her that her husband earned
R5 100,00 per month at
the time of his death. The first purported sworn statement which Ms
Smith obtained from the plaintiff during
the very first consultation
of 17 August 2004 showed that the plaintiff informed Ms Smith that
the deceased was the sole breadwinner.
Moreover, the plaintiff’s
evidence was that she also provided Ms Smith with her husband’s
salary advice on 17 August
2004. Ms Smith admitted that she indeed
received the salary advice but answered that she only received it
after the prescription
date which was on 21 June 2007 but before her
letter to Dr. Robert Koch dated 12 July 2007.
[51] Mr. Dutton submitted
that a rough estimate of an amount of compensation the plaintiff
wanted to claim for loss of support could
have been calculated by
multiplying the deceased annual income by x number of years where x
represented a number of years during
which her husband would but for
his premature sudden death have remained gainfully employed before he
retired at the age of 65.
[52] Ms Bester submitted
that a precise actuarial assessment of the plaintiff’s loss of
support was required before the applicable
portion, in other words
paragraph 8 of the claim form, could be validly completed. The
defendant’s contention was thus premised
on the erroneous
belief that any estimate of the amount claimed as compensation which
was unsupported by a precise actuarially
assessed calculation, would
not be substantial compliance. Ms Smith’s understanding of the
legal position was that once an
amount claimed as compensation had
being inserted in the claim form, it could only be decrementally but
not incrementally adjusted
at any stage subsequent to the date of its
lodging. The law was lamentably misconceived.
[53] The law which
governs the information to be included in the mva claim form is set
out in
section 24
of the
Road Accident Fund Act, 56 of 1996
.
Subsection 1 thereof provides:
“
24.
(1) A claim for compensation and accompanying medical report under
section 17
(1)
shall-
be set out in the
prescribed form,
which shall be completed in all its particulars
;
(b)
be sent by registered post
or delivered by hand to the Fund at its principal, branch or regional
office
, or to the agent who
in terms of
section 8
must handle the claim, at the agent’s
registered office or local branch office,
and
the Fund
or such agent
shall at the time of
delivery by hand acknowledge receipt thereof and the date of such
receipt in writing
.”
[54] It is also important
to bear in mind the provision of subsection 4 thereof which provides:
“
(4)
(a) Any form referred to in this section which is not completed in
all its particulars shall not be acceptable as a claim under
this
Act.
(b) A clear reply shall
be given to each question contained in the form referred to in
subsection (1), and if a question is not
applicable, the words ‘not
applicable’ shall be inserted.
(c) A form on which
ticks, dashes, deletions and alterations have been made that are not
confirmed by a signature shall not be regarded
as properly completed.
(d)
Precise
details shall be given in respect of each item under the heading
‘Compensation claimed’ and shall, where applicable,
be
accompanied by supporting vouchers.
”
[55] The author, H.B.
Kloppers:
The Road Accident Fund Guide – Service Issue 20
,
page A-117 summarises the requirements of a valid mva claim form and
makes commentaries on that section. An mva claim form which
discloses
the identity of the claimant; the particulars of the accident which
gave rise to someone’s injury or death; the
identity of the
driver or owner of the offending vehicle and the calculation and
composition of the amount of compensation claimed
substantially
complies with this section.
[56] It was undisputed
fact that the defendant had the necessary information about the
claimant, the accident, the offending vehicle(s)
and the drivers
involved. The dispute concerned the last of the requirements
mentioned in the aforegoing paragraph 8 – the
amount of
compensation. Moreover, it was also undisputed that the defendant
knew the deceased breadwinner’s age. The plaintiff
had placed
Ms Smith in possession of her deceased husband’s identity
document, marriage certificate and death certificate.
From any of
these documents the deceased date of birth could be ascertained.
[57] Ms Smith’s
evidence that she only received the deceased’s salary advice
after prescription was unconvincing. She
had no notes in her file
relating to the exact date of the specific consultation. On the
contrary, the plaintiff was certain that
she gave the salary advice
to Ms Smith during the first consultation on 14 August 2004. Her
version on the point was more probable
than that of the defendant’s
witness, Ms Smith. The very statement which Ms Smith took from her,
tended to give credence
to her version. However, precisely when the
defendant received the salary advice, was not really important. What
was crucial was
that the defendant knew within seven weeks after the
accident, that the deceased breadwinner earned R5 100,00 per month
(
vide
the plaintiff’s first statement) drawn up by the
defendant’s witness on 14 August 2004.
[58] The critical
question in this matter was therefore whether the aforegoing
information which the defendant had in its possession
sufficed to
unable the defendant to figure out an informed calculation and
composition of the quantum of compensation to be claimed
in order to
satisfy the requirements of substantial compliance.
[59] The plaintiff’s
argument was that as early as 14 August 2004 the defendant had
sufficient information necessary to quantify
her claim for
compensation. The defendant’s argument was that unless an
actuarial assessment report was annexed to the mva
claim form at the
time the mva claim form was lodged, the claim form was not
substantially completed in terms of
section 24.
[60] A brief overview of
some caselaw appeared to be necessary.
Section 24
has received
judicial attention on a number of occasions.
[61] Where the appointed
agent, in other words, the third party insurance company had
repudiated the claim of the claimants on the
grounds that the mva
claim forms were not fully completed in all respects, the victims
appealed. On appeal the court reversed the
decision of the court
a
quo
whereby the repudiation was upheld and the claims dismissed.
Notwithstanding the omission relied upon by the insurer, the court
found that the claimants had substantially complied with the
applicable section since their mva claim forms contained, among
others,
vital information concerning the identity of each appellant
or claimant, particulars of the accident, a description of the
offending
vehicle involved, the driver thereof, the hospital where
they were medically treated, the police station where the accident
was
reported, the particulars of the employers of each claimant, save
for one of them, the amount of the compensation claimed and the
general description of the injuries. See
NKISIMANE AND OTHERS v
SANTAM INSURANCE CO LTD
1978 (2) SA 430
(A) at 435 H –
436 A for the minimum information that has to be supplied for
substantial compliance.
[62] The ratio of the
decision was that the purpose of the section was to ensure that
before a claimant sued for compensation, an
authorised insurer was
informed of sufficient particulars about the claim, afforded
sufficient time to consider it and to decide
whether to resist or to
settle or to compromise it before any costs of litigation were
incurred –
NKISIMANE
,
supra
, at 434 F - G.
The court held that injunctions, similar to those now set out in
section 24(4)
, that the claim form shall be completed in all its
particulars; that a clear reply shall be given to each question and
that precise
details shall be given in respect of each item claimed
as compensation – must be regarded as directory and not
peremptory
–
NKISIMANE
,
supra
, at 436 B –
D. Trollip JA cautioned, though, that claimants were well-advised to
do their best to comply fully with these
injunctions.
[63] In
SA EAGLE
INSURANCE CO LTD v PRETORIUS
[1997] ZASCA 107
;
1998 (2) SA 656
(SCA) the
plaintiff lodged a claim in good time. However, the names and the
addresses of the driver and owner of the other vehicle
involved in
the accident were not stated in the mva claim form. By the time the
claimant supplied such information the three year
prescriptive period
had already expired. The insurer repudiated the claim on the grounds
that the claimant’s right of action
had already prescribed. The
court
a quo
dismissed that special plea.
[64] The mva insurer
appealed. The appeal was dismissed and the decision of the court
a
quo
confirmed. The court held that such information as was
furnished before prescription relating to the one vehicle coupled
with the
information concerning the accident and the police station
to which it has reported, would reasonably have enabled the appellant
itself to make successful enquiries as to the identity of the driver
or owner of the other vehicle involved, whose particulars
were not
furnished in the mva form –
SA EAGLE INSURANCE CO LTD v
PRETORIUS
,
supra
, at 664F – H.
[65] The court found that
the claim form contained sufficient information which reasonably
afforded the appellant adequate opportunity
to consider its position
in relation to such claim and to carry out such further investigation
as it deemed necessary. The appellant,
the court found, had thus
effectively received the benefit the claim form was designed to give
it (
vide
PRETORIUS
,
supra
, par 665A –
C). Accordingly, the court held that the respondent had substantially
complied with the section. The court found
that the information
contained in the claim form reasonably afforded the insurer a proper
opportunity to consider its position
and to carry out such
investigation as it deemed necessary. The court held, further, that
the fact that the respondent might have
prudently done more than she
had actually done was, in itself, not sufficient to justify the
conclusion that her claim was inadequately
advanced and that the
claim was therefore invalid.
[66] The legal position
is, therefore, clear. An omission of information from the claim form
or the inaccuracy or inadequacy thereof
per se
does not
necessarily mean that there has been no substantial compliance with
the section in the completion of the claim form. A
mere failure by a
claimant to sufficiently and accurately answer questions of the kind
under consideration
in casu
(i.e. computation of compensation)
does not render a claim a nullity –
PRETORIUS
,
supra
, at 663 I – 664 A. Much depends on the nature
degree and significance of the omission or inaccuracy or inadequacy
as well
as the significance of the information already provided. For
this reason the claim form had to be fully and accurately completed
as far as practically possible before it is lodged with the Road
Accident Fund in order to avoid unnecessary objections or special
pleas based on lack of substantial compliance with the requirements
of
section 24.
[67] The case of
NONKWALI
v ROAD ACCIDENT FUND
2009 (4) SA 333
(SCA) is important.
Almost four years after the collision, on 10 June 2005, the appellant
amended her pleadings, without objection
by the respondent, to
include her claim for damages suffered consequent upon a head injury
allegedly sustained in the accident.
The head injury was not
previously listed among the injuries detailed in her claim form,
sworn statement or accompanying medical
report lodged in terms of
section 24.
The reason for the belated disclosure of the head injury
was that it was only detected subsequent to the lodging of the claim.
[68] The respondent filed
a special plea alleging that, since the head injury was not specified
in the claim form before it was
lodged, the claim form did not comply
with the provisions of
section 24.
The respondent also raised an
alternative special plea. It averred that the appellant’s
additional claim, based on the head
injury, constituted a new cause
of action which, in terms of
section 23
, had already become
prescribed in that it was instituted after the expiry of the three
year prescriptive period. The trial court
upheld the special plea.
[69] It was not an issue
in the court below that the head injury had not been diagnosed when
the claim form was completed and lodged
with the respondent. In the
special plea there was no allegation at all made to the effect that
the head injury was known at the
material time when the claim was
lodged. The case had clearly proceeded on the basis that the injury
was discovered in subsequent
medical examination. The court, on
appeal, found that the appellant had fully furnished the respondent
with all the relevant facts
available to her at the time her claim
was lodged. The court held that a supplementary claim in respect of
the additional head
injury, which injury was discovered after the
institution of the action for compensation in terms of
section 17(1)
of the
Road Accident Fund Act, 56 of 1996
, did not constitute a
distinct new cause of action, but merely a supplementary item of the
same original cause of action –
long since recognised to be a
single and indivisible caution of action –
NONKWALI
,
supra
, at par. [10]. I pause to point out that the inclusion
of the head injury necessarily entailed increasing the amount of the
compensation
claimed by addition of a further item.
[70] In these
circumstances I am persuaded that the defendant indeed had sufficient
information in respect of the plaintiff’s
claim to
substantially comply with the basic requirements of
section 24.
The
defendant had all the information necessary to complete the mva claim
form for about five months or so before the date of prescription.
The
defendant’s understanding of the legal position, as regards the
information necessary to complete the paragraph of the
claim form,
which deals with the breakdown and calculation of the amount of
compensation, was materially wrong.
[71] The defendant could,
as knowledgeable practitioners often do, have performed a rough
calculation of the compensation claimed
in order to lodge the claim
for the time being. Such a simple mathematical exercise would have
sufficed to prevent the extinction
of the claim by prescription.
Doing this sort of an estimation is a common practice. An inaccuracy
does not invalidate a claim.
After the lodging of the claim the
defendant could have proceeded to instruct an actuary to expertly
assess the plaintiff’s
claim. Once a fairly precise assessment
had been compiled, the original amount of the compensation claimed
could then had been
varied even after the expiry date of the three
year prescriptive period. The inexact amount originally claimed could
in that way
be substituted with the exact amount expertly and
mathematically determined by an actuary. It was clear and obvious
that Ms Smith
read too much into
section 24(4)(d).
The words precise
details and supporting vouchers for purpose of lodging an mva claim
include meaningful information statement
designed by the claimant or
an attorney acting as the claimant’s agent.
[72] Where legal
proceedings have not yet been initiated the variation of the mva
claim form is informally done by means of a letter
to the Road
Accident Fund to that effect. Needless to say that, a copy of the
actuarial assessment report, must then be annexed
to the letter of
variation. Where, however, litigation has already commended the
amount claimed can be formally changed by means
of an amendment to
the summons at any time before judgment on quantum. The purpose of
the variation or amendment may either entail
an incremental or
decremental adjustment of the original amount claimed. Ms Smith’s
opinion that an mva claimant was inextricably
bound by the original
amount claimed as the maximum compensation was a clear misconception
of the law.
[73] The question which
now arises is whether the defendant took reasonable steps to obtain
the information which the defendant
subjectively believed it still
required to lodge the plaintiff’s claim.
[74] The defendant’s
witness, Ms Smith, maintained throughout her testimony that the
plaintiff was very uncooperative and
that due to her lack of
cooperation her claim prescribed. The plaintiff’s contention
was that she did all she could, but
that her attorney did not
properly handled her mandate.
[75] The initial
consultation between the plaintiff and her ex attorney, Ms Smith, was
held in Bloemfontein on 14 August 2004, seven
weeks after the
accident. During that first consultation Ms Smith noted, among
others, that her client’s physical address
was 37739 Freedom
Square, Bloemfontein, 9300; that her cellular contact number was cell
073 205 4668; and that she was unemployed
at the time.
[76] Now Bloemfontein is
a very big city with many suburbs, street names and suburban post
offices and postal codes. Any physical
address without these features
rings a warning bell. Such was the address given to the defendant in
this matter. The defendant
would have known that its client was a
shack dweller and that postal deliveries to such informal communities
were notoriously unreliable
or completely non-existent. In
SLOMOWITZ
v KOK
1983 (1) SA 130
(AD) the trial judge, O'Donovan J, was
quoted as follows on appeal:
“
According to
evidence that was adduced in this case, and not challenged,
the
residents of Vanderbijlpark are a floating community
,
most of whom do not own the houses in which they reside.
Difficulties
and delays with regard to service are of frequent occurrence in any
Court. An ordinarily competent attorney having
a proper perception of
the importance to the plaintiff of her claim against the Fund, would
not needlessly have run the risk of
her claim being defeated on
account of possible delays
in effecting the service of a summons.
To
incur such a risk was negligent.
”
[77] Between the first
consultation (14 August 2004) and the second consultation (16
September 2005) Ms Smith wrote six letters
to the plaintiff. In the
first letter (20 August 2004) she required information concerning the
police from her client. The plaintiff
did not respond. Four and a
half months later (5 January 2005) Ms Smith wrote the second letter
to the plaintiff. Again she asked
her client to furnish her with
police information. In addition to that she also asked her to furnish
her with details of the employer
of her deceased husband. Despite
repeating her request for such information in four more similar
letters she received no such information
concerning the police and
the employer from her client or any reaction from her. (
Vide
5
exhibit b – 18 exhibit b)
[78] Seemingly the
plaintiff went to see her attorney again. The second consultation
apparently took place on 16 September 2005,
approximately twelve and
a half months after the first. There were apparently no notes of
significance kept by the defendant concerning
the second
consultation. By the look of things the serious and apparent problem
of communication brake down was not addressed.
Ms Smith obviously did
not ask her client to provide her with an alternative address which
was more reliable than the one she previously
provided. It seemed
doubtful whether she asked her client as to whether she was receiving
her letters and if she was, why she was
so uncooperative as she
claimed her to be. All we know about the second consultation was
through reference to it in Ms Smith’s
letter to her client
dated 11 October 2005.
[79] In that letter she
requested her client to furnish her with the birth certificates of
all her minor children in addition to
the outstanding information
about the police and the employer. On 2 December 2005 she repeated
the same request. A knowledgeable,
skilful and diligent attorney
would, herself, have applied to the department of home affairs
instead of sending her client for
copies of full birth certificates.
This can be easily done provided an attorney has a meaningful special
power of attorney signed
by his client, which authorises her or him
to represent the client by taking such steps and performing such acts
as may be reasonably
necessary to carry out the mandate to its
logical conclusion. I did not see such a document in this instance. I
am mindful of the
fact that children’s full birth certificates
were not relevant to these proceedings. However, the point indicated
that on
account of poor knowledge, skill and care, Ms Smith made such
onerous demands from her client that they would probably have
discouraged
and frustrated even a very prudent and cooperative
client. It must be borne in mine that the plaintiff was a woman of
little education
and no legal training whatsoever. She had no clue of
what a full birth certificate was which was why she again furnished
Ms Smith
the same copies of the abridged birth certificates of her
children.
[80] On 27 February 2006,
over eighteen months since the contract of mandate was concluded, the
defendant out of the blue wrote
to advise the plaintiff that letters
had been addressed to the police and the employer for the necessary
information. That was
the only letter the defendant ever sent to the
plaintiff giving her progress report. The rest were demands for
information. Now
perusal of the notes which Ms Smith took during the
first consultation (14 August 2004) a year and a half earlier, showed
that
the plaintiff had furnished her with the following vital
information concerning the police: that the accident was reported to
Bethal
Police in Mpumulanga; that the crime administration system was
CAS112.06.2004 and that the collision reference was AR15.06.2004.
[81] From the perusal of
the initial consultation one can see that it took Ms Smith a
considerable period of time to realise that
all along she had the
necessary information concerning the police in her possession. Her
repeated demand for police reference would
certainly have left her
client wondering as to what information about the police she was
still required to give to her attorney.
[82] From day one (14
August 2004) Ms Smith was informed by her client that her deceased
husband was in the employ a certain business
enterprise called Ancor
Vervoer on a certain farm in the Theunissen district. Now Theunissen
is approximately 100 kilometres away
from Bloemfontein. Although the
employer’s further particulars such as contact numbers and
postal address were not given,
they could have been readily
ascertained. In the first place Telkom could have been contacted. In
the second place the deceased’s
co-worker by the name of
Patrick could have been of assistance. In the third place a tracing
agent could have been instructed.
In the fourth place the Bethal
police probably had some constructive information about the
particulars concerning the owner of
the truck which the plaintiff’s
deceased husband was driving. In the fifth place the defendant could
have sent a messenger
to Theunissen to look for and find the required
information about the employer. None of these steps were taken by the
defendant.
[83] The accident report
showed that one of the passengers involved in the accident was a
certain Mr. Alfred Mene of Leliesdal Plaas,
Theunissen whose cellular
contact number was given as 083 303 0212 – (
vide
61D
exhibit b). The gentleman was probably a co-worker of the plaintiff’s
husband. He would probably have given Ms Smith some
constructive
information about the employer. The point is this: Had the defendant
immediately and properly investigated the accident
the employer would
have been identified and traced way back in 2004, much earlier than
he eventually was in 2006. Once again one
can see just how much
valuable time Ms Smith practically wasted writing one letter after
another to the plaintiff requesting for
the information she had in
her possession all along.
[84] The defendant’s
letter (27 February 2006) to Bethal Police for copies of the accident
report, accident plan and witness
statement apparently yielded no
immediate response. The same applied to the defendant’s first
letter of the same date which
was addressed to the employer for the
deceased workman’s certificate of employment. An ordinarily
competent attorney with
a proper perception of the importance of the
claim to her client, would have written such a letter to Bethal
Police before 31 August
2004 or within one month, at the very latest,
after the conclusion of the mandate agreement –
SLOMOWITZ
,
supra
.
[85] Instead of taking
the matter up directly with the police and the employer, Ms Smith,
once again, wrote three more letters to
her client between 27
February 2006 and 4 December 2006 asking her to furnish her with the
documents she, the attorney, could not
readily get from the police
and the employer. Her evidence was that it was the responsibility of
her client to provide her with
such documents. Therefore, so she
testified, she expected her to travel to Theunissen and Bethal, far
away from Bloemfontein, to
get the required documents. And the poor
client did.
[86] I was amazed. It
begged the question: What was really the point of appointing and
paying an attorney if the poor client, a
widow at that, still had to
travel to such far away places where she probably had never been
before to investigate and to gather
the required information. Ms
Smith’s second letter to the police was dated 4 December 2006,
approximately 10 months after
the first. A cheque of R75,00 was
attached. The third letter was dated 18 January 2007. Official proof
of payment of R51,20 was
attached.
[87] On 1 February 2007
the defendant wrote to ask the plaintiff to visit her offices.
Shortly after that letter the required accident
report and witness
statements were annexed to a letter from the police to the defendant
dated 14 February 2007.
[88] The last letter (30
March 2007) from the police informed the defendant that a case of
culpable homicide was opened following
the accident. The defendant’s
last letter to the plaintiff was dated 10 March 2007. Yet again the
plaintiff was called upon
to provide the outstanding documents from
the police, the employer and the Department of Home Affairs.
[89] The defendant wrote
one letter only in three years to the employer. This was a chronicle
of procrastination and neglect on
the part of the defendant. Ms
Smith’s explanation was that besides the one letter she also
called the employer, Mr. J.A.
Smith and his wife in connection with
the certificate of employment. The evidence revealed very scant
details of the alleged cellular
calls. Her efforts, she said, were to
no avail. She admitted that she did not give the employer any written
warning that he was
legally obliged to furnish her with the required
information. When Mr. Dutton put it to her that she could have
instituted an urgent
court application against the employer to compel
him to provide the documents or to obtain an
ex parte
Anton
Pillar order against the employer, it seemed that Ms Smith was
unaware of such legal remedies.
[90] The plaintiff’s
claim prescribed on 21 June 2007. About three weeks later Ms Smith
wrote to Dr. Robert J. Koch for a
certificate of values. To that
letter were annexed, among others, what Ms Smith described as work
agreement of the deceased together
with a salary advice. The
information on the salary advice confirmed that the plaintiff’s
husband worked for Ancor Vervoer
and that he earned a basic salary of
R4 500,00 plus a subsistence allowance of R600.00 per month which
brought his total monthly
income to R5 100,00.
[91] All in all Ms Smith
wrote 14 letters to her client before the claim prescribed. That was
not good enough. All of those letters
apparently went astray. But
even if they did not, they were useless. As I have already indicated
Ms Smith repeatedly demanded from
her client information which she,
in the first place, was obliged in terms of the contract of mandate
to assemble. Her lawfirm
was appointed within two months after the
fatal accident. Therefore, she had 34 months to investigate the
circumstances of the
accident, to gather the necessary information
and to lodge her client’s claim in good time. She failed to
perform any of
those vital obligations.
[92] Not a single
statement by an eye witness was obtained. The hearing had already
commenced when, on 28 May 2011, the defendant,
for the first time,
held consultation with Ms M.J. de Villiers. The scene of the accident
was never visited. There were no scenery
photographs taken. The fact
of the matter is that Ms Smith, on behalf of the defendant, did not
take reasonable steps not only
to obtain the information she believed
she required, but, and this is very important, also to exercise the
necessary skill, knowledge
or diligence expected of an average
attorney. As a result of such disturbingly shocking lack of skill,
knowledge, diligence and
care she failed to appreciate the value of
the vital information her client had supplied almost three years
before the expiry date
of the prescriptive period.
[93] I have to say, and
it is not pleasant saying it at all, that the plain truth about this
whole problem was not of Ms Smith’s
own making. She was
admitted as an attorney in 2003 and on 2 October 2003 she was given a
huge responsibility to run not only the
mva department of the
defendant but also the conveyancing department. She was a virtual
novice in the legal profession at the time.
She was put in the deep
end and left all by herself to navigate the stormy waters of the deep
ocean. She was not at all equipped
to do such intricate work. Her
legal knowledge was still very limited. Since then she has hardly
ever attended one mva seminar.
Yet she regarded herself as an expert
in the field. Her evidence was that a two day practical training
course she was compelled
to attend as a candidate attorney was the
only meaningful training she ever received. That, in brief, explained
why the plaintiff’s
claim prescribed.
[94] The last letter she
wrote to her client was on 10 March 2007. She probably forgot about
the matter. Her computer system probably
did not remind her about the
looming danger. Perhaps it did but she was simply overwhelmed by the
magnitude of the problem. If
a skilful, knowledgeable and diligent
attorney received on 10 March 2007 the sort of instructions Ms Smith
received on 14 August
2004, the plaintiff’s claim would not
have prescribed.
[95] In
MOUTON v
DIE MYNWERKERSUNIE
1977 (1) SA 119
(A) at 142 G – H
Wessels JA said the following:
“
Appellant
sou op grond van nalatigheid aangespreek kon word indien hy nie oor
die nodige kennis of vaardigheid beskik het nie of,
by die uitvoering
van sy opdragte nie dié mate van sorg aan die dag gelê
het, wat redelikerwys van die deursnee-prokureur
verwag kan word nie.
Kyk, Bruce, N.O. v Berman,
1963 (3) SA 21
(T) op bl. 23G; Honey &
Blanckenberg v Law,
1966 (2) SA 43
(R) op bl. 46E - 47B; Tonkwanê
Sawmill Co. Ltd. v Filmalter,
1975 (2) SA 453
(W) op bl. 454H -
455C.”
[96] That, in brief, is
the test. I have to judge the conduct of Ms Smith in the light of
what she knew and could reasonably have
ascertained. She knew very
little and solicited very little help from the defendant’s
senior directors or any knowledgeable
colleague. Her last letter to
the plaintiff evoked no response whatsoever. A normally prudent
attorney would have felt it wise
to lodge the claim on the strength
of the available information, however inadequate she or he reckoned
it to be. What she did,
was to throw in the towel and surrendered.
She made no constructive and vigorous efforts to resolve the
perceived problem. She
did not have to have absolutely accurate
information about every component of the compensation the plaintiff
was entitled to claim
–
NONKWALI
.
[97] In
S MAZIBUKO
v SINGH
1979 (3) SA 258
(W) Coleman J said the following at
261 C – D:
“
In the
carrying out of his contractual obligations the defendant was obliged
(either personally or through others) to exercise knowledge,
skill
and diligence to be expected of an average practicing attorney. See
Mouton
v Die Mynwerkersunie
1977 (1) SA 119
(A) at 142 – 3 and the authorities there cited.
It is the plaintiff’s case that the defendant fell short of
that standard.”
Indeed that is my finding
in the instant matter.
[98] Although the end of
the prescriptive period was looming large on the horizon, Ms Smith
did virtually nothing effective. She
had enough information to lodge
the claim. All she did in almost three years was to write to her
client, who lived in an informal
shack setting asking her to provide
information. Those letters failed to reach her client. The evidence
of the plaintiff in that
regard must be accepted. Ms Smith last
letter to her client was on 10 March 2007. It was not far too late at
that stage to do something.
However, Ms Smith did nothing
constructive. The prescriptive period was not perilously close. In
the circumstances Ms Smith acted
negligently, having regard to what
was at stake, the available information and the time she had at her
disposal before the date
of prescription.
[99] The vagaries of
postal deliveries to shack communities are well-known. An ordinarily
competent attorney would have foreseen
that letters mailed to a shack
dweller were quite as likely to be delayed as to go astray. But even
if the plaintiff had received
the last letter, Ms Smith’s
remissive conduct in allowing the prescription to run out could not
be excused. There comes a
time when a diligent attorney has to leave
the comfort zone of his or her air-conditioned office and venture out
to do some fieldwork
in order to safeguard the interests of a client.
In the light of all this I can see no sound excuse for Ms Smith’s
conduct.
See
MAZIBUKO
,
supra
, at 264 A –
H.
[100] I had to judge the
conduct of Ms Smith in the light of what she knew and could
reasonably have ascertained. Her conduct was
chronicled by hopeless
acts of procrastination and utter neglect. A prudent, skilful and
knowledgeable attorney would have done
and handled the plaintiff’s
claim in a completely different way. Therefore, the plaintiff has
established the final element
as well.
[101] Since Ms Smith
failed to exercise the skill, knowledge and diligence expected of an
average attorney, she acted negligently
and her negligence made the
defendant liable to the plaintiff. In my view the defendant neglected
to lodge the plaintiff’s
claim. Its omission was due to the
fact that its representative did not have the requisite degree of
knowledge, skill and diligence
which, as an attorney, she was
supposed to have.
[102] In the
circumstances and for the reasons already given, I have come to the
overall conclusion that the plaintiff has established,
on a balance
of probabilities, all the
essentialia
of her cause of action
against the defendant. The defendant’s plea is dismissed
in
toto
. In my view no negligence whatsoever could be detected
against the plaintiff’s conduct.
[103] Accordingly I find
that the defendant is liable to the plaintiff for such damages, as
may be proved or agreed, plus costs.
______________
M. H. RAMPAI, J
On behalf of plaintiff:
Adv. I.T. Dutton
Instructed by:
Nonxuba Attorneys
BLOEMFONTEIN
On behalf of defendant:
Adv. A. Bester
Instructed by:
Goodrick & Franklin
BLOEMFONTEIN
/sp