Croucamp v Schoeman Maree Inc. (4056/2006) [2009] ZAFSHC 3 (26 January 2009)

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[2009] ZAFSHC 3
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Croucamp v Schoeman Maree Inc. (4056/2006) [2009] ZAFSHC 3 (26 January 2009)

IN THE HIGH COURT
OF SOUTH AFRICA
(ORANGE FREE STATE
PROVINCIAL DIVISION)
Case
No.: 4056/2006
In the case between:
ELIZABETH
ADRIANA CROUCAMP
Plaintiff
and
SCHOEMAN
MAREE INC.
Defendant
_______________________________________________________
JUDGEMENT:
MOCUMIE, J
_______________________________________________________
HEARD
ON:
2 – 5 SEPTEMBER 2008
and
16 OCTOBER 2008
_______________________________________________________
DELIVERED
ON:
26 JANUARY 2009
_______________________________________________________
[1]
The
plaintiff is a 34 year old married woman. She instituted action
against the defendant, Schoeman Maree Incorporated, a firm
of
attorneys, for the recovery of damages she suffered based on breach
of contract. Plaintiff alleges that the defendant negligently
caused
her claim pursuant to the provisions of the
Road Accident Fund, Act
56 of 1996
(“the
RAF Act”)
,
to prescribe.
[2]
On
25 July 2001 plaintiff was involved in a motor vehicle accident
which took place in Bloemfontein as a result of which she sustained

injuries. The parties agreed that the collision was the sole
negligent driving of the driver of the motor vehicle with
registration
number BVJ579FS which was driven by a member of the
South African National Defence Force
(“SANDF”)
on a private journey. On 25 June 2003 plaintiff engaged the services
of the defendant, represented by Mr Jan Jacob Maree
(“Maree”)
a director, in the firm to recover damages she was entitled to in
terms of the provisions of the Road Accident Fund (
“the
RAF”
).
[4] It
was common cause or not disputed that:
4.1 The
plaintiff met with Maree on 25 June 2003 and gave him instructions
to recover damages from the RAF on her behalf and he
accepted the
mandate.
4.2 The
plaintiff although born and bred in Bloemfontein, South Africa
(
“SA”
),
was residing in the United Kingdom (
“UK”
)
at the time of the accident but gave instructions to the defendant
during one of her visits to SA;
4.3
The
plaintiff furnished the defendant with all the necessary documents
on 25 June 2003 to file and lodge her claim with the RAF;
4.5 the
plaintiff’s claim prescribed in July 2004 whilst she was still
resident in the UK.
Separation of
issues in terms of
Rule 33(4)
[5]
When
the trial commenced the parties agreed that the determination of the
merits and the quantum be separated. This agreement
was made an
order of the court. The case proceeded on the basis that paras 9,10
and 11 should be determined first and the issues
in para 8 will be
adjudicated at a later stage.
[
6] The
plaintiff was the only witness that testified in support of her
case. Maree testified in his defence.
[7] The
plaintiff testified that on the advice of her father, Advocate Paul
Heymans
(“Heymans”)
,
a member of the Bloemfontein Bar Council, she consulted Maree in the
late afternoon of 25 June 2003.She mandated him to lodge
her claim
against the RAF and pursue it to its finality. It was common cause
that Maree was an expert on RAF matters. Plaintiff
related to Maree
what had happened and Maree also asked questions and kept notes
during the consultation. Some documents pertaining
to the accident
and personal details were handed over to Maree. The consultation
lasted an hour or more. Of significance is that
plaintiff also gave
Maree her UK e-mail address to communicate with her whenever
necessary. It was common cause that she recorded
her e-mail address
in her own hand on the file cover of her personal file. Plaintiff
says that there was an understanding between
the three of them that
her father would be
“the
point of contact from a logistical point of view.”
She could not recall if she signed a power of attorney or any other
document that afternoon. Whilst she was in the UK, at some
point,
her father contacted her to obtain some medical information required
by Maree.She furnished the information.
[8] It
was further common cause that since she instructed Maree on 25 June
2003 he did not communicate with her on developments
on her matter
either in person, telephonically or electronically. It was also
common cause that plaintiff was a lay person and
placed her faith in
Maree to guide and advice her on what to do, what documents to
complete and sign and where and when her claim
had to be lodged as
prescribed by the relevant laws and rules.
[10] Maree
testified that he is a director
in
the defendant firm and an admitted attorney of the High Court since
1976. He has been dealing with personal injury and road
accident
civil litigation for the best part of his professional career. He
confirmed plaintiff’s evidence in all material
respects except
that he claimed that he had no independent recollection that the
plaintiff was present during the consultation
but maintained that he
was prepared to acknowledge that she was indeed present. Maree
further maintained that during the consultation
the parties agreed
that Heymans be appointed the plaintiff’s agent.
[1
0] By
30 June 2003, so Maree testified, he had also received the statutory
medical report from Dr Van Niekerk and another by Dr
Westmore
relating to their consultations with the plaintiff, their diagnoses
of her injuries and the medical treatment she received.
Maree
conceded that in five days from the day he was instructed (25 June
2003), he had all the prescribed documents necessary
to lodge the
claim with RAF. During cross-examination he identified the documents
he was provided with during consultation as
(a) the computation of
the
quantum
compiled by Heymans; (b) the sworn declaration by Mr Jean du
Plessis,an eye witness in the accident; (c) plaintiff’s identity

document; and (d) photos which depicted plaintiff’s injuries.
This evidential material served as exhibits in this trial.
[1
1] According
to Maree there was only one consultation with plaintiff and her
father (Heymans) and that subsequent to this one
and only
consultation he sent an MMF1 form to Heymans in order for him to
sign it as plaintiff’s agent. He requested Heymans
to provide him
with the signed power of attorney which he furnished him with. Maree
maintained that the MMF1 claim form was hand-delivered.
The letter
dated 8 October 2003 was produced by Maree as an exhibit. He says
that Heymans did not react to this letter.
[1
2] Maree
testified that on 10 November 2003 he wrote a letter to Heymans in
which he requested him to return the signed MMF1 form
and the power
of attorney as a matter of urgency. That on 21 January 2004 he once
more wrote to Heymans stating that: “
Dit
is werklik noodsaaklik dat ons die eis by die fonds ingedien kry
deurdat verjaring ‘n faktor begin word. Ek verneem dus
graag
dringend van jou”
as
the claim would prescribe in 2004, counting from the date of the
accident. However no prescription date or even the year appears
in
the cited letters.
[13] An
entry dated 29 April 2004, thus three months before the claim was
due to prescribe, was made by Maree on plaintiff’s
file that he
spoke to Heymans telephonically and informed him that the claim is
in danger of prescribing. He says Heymans undertook
to sign the
claim form that very week. On 21 June 2004 Heymans phoned his
office in his absence and left a message. He returned
the call later
that day. Heymans once more undertook to sign the form. On 28 June
2004, a month before the claim was due to prescribe,
he made a note
after talking to Heymans which note reads:
“Bel
Paul, ek deel mee dat hy werklik nou ‘n plan moet maak om te
teken.
Vra of
ek ’n klerk kan stuur. Hy sal bel, wil eisdokument/MMF1 nagaan.”
According to Maree
Heymans did not return the claim form or return the power of
attorney as promised. That was the last time
the two ever
communicated.
[14] Maree corroborates
plaintiff’s version that she sent him an email to enquire about
her claim as she had been informed by
an independent source that her
claim had prescribed. It was only then upon enquiry via email that
plaintiff learned first hand
from Maree of the prescription of her
claim.
[15] Emanating from the
diametrically opposed versions of the parties on some aspects the
following issues need to be resolved:
15.1 Whether plaintiff
appointed her father as her agent and consequently that Heymans
would provide Maree with all the necessary
information to process
and file the claim with due diligence and circumspection. If this
issue is decided in favour of the defendant
that would be the end of
the matter and plaintiff’s action must be dismissed with costs;
15.2 Whether Maree was
obliged to communicate with the plaintiff as the principal, more so
in that Maree alleges that Heymans
failed or refused to provide him
with the information or documents requested knowing fully well that
plaintiff, and not Heymans,
was their client, that her interests
needed to be protected, that they owed her a duty of care;
15.3 Whether what Maree
did until 28 June 2004 was sufficient to protect plaintiff’s
interests and to defeat plaintiff’s claim
against Schoeman Maree
Inc.
Was the
relationship between plaintiff and defendant one of contract or
delict?
[16] It is common cause
that the relationship between plaintiff and respondent, that of
attorney and client, falls within the
purview of an agent and
principal. This relationship is defined and regulated in terms of
our common law of agency as derived
from English law. See
De
Villiers & Macintosh, The Law of Agency in South Africa 3
rd
ed; Gibson, South African Mercantile Law and Company Law …ed .
See
too
Mason
v Vacuum Oil Co of SA (Pty) Ltd
1936 CPD 219
at 223.
An agent is defined by
De
Villiers & Macintosh
in Article I p8 as
“a
person who has authority to act for and on behalf of another (called
the principal) in contracting legal relations with third
parties,
the agent represents the principal and creates, alters or discharges
legal obligations of a contractual nature between
the principal and
third parties.”
From this definition
three things are evident. First, the relationship is contractual.
Secondly, the contract is between the principal
and the agent.
Thirdly, the agency relates to the principal’s contractual
relations with third parties.
[17]
De
Villiers & Macintosh
at p 120 under Article 13 maintain that two or more persons may be
appointed as agents by one principal. If it be intended that
all of
them should act in concert in carrying out the mandate their
authority becomes joint. In that event only by way of their
joint
action can they bind the principal. They are liable
in
solidum
for the due execution of the authority, the one paying the other to
be absolved.
[18] The court in
Goodriche
& Son v Auto Protection Insurance Company (Pty) Ltd
1967
(2) SA 501
(W) at 503G-H states:
“
The services an attorney
renders to his client are mainly…those which an agent renders to
his principal. Although the relationship
between an attorney and his
client is of a very special character with certain aspects peculiar
to itself, the legal principles
which apply to that relationship are
those of the law of agency…”
On the basis of these
principles I am of the view that the relationship between plaintiff
and defendant was of an agent and principal
and therefore
contractual.
Did plaintiff
appoint Heymans as her agent?
[19] The plaintiff was
emphatic that she never appointed or intended to appoint her father,
Heymans, as her agent. She merely
supplied Maree with all the
necessary information as well as her e-mail address to be contacted
whenever necessary. Her understanding
that she had was that her
father, because of the proximity will be the contact person or the
mail box but this was never meant
to eliminate her from the process.
During cross-examination she maintained the same view when it was
put to her that
“…if
an attorney asks for facts and instructions and information and that
is not given, the attorney cannot lodge the claim,
do you agree? ---
It is for the very reason that before I left that night, I made sure
that Mr Maree had a very good way of communicating
with me and that
is my email address because I check that on a daily basis. Because I
specifically said to Mr Maree it is very
important that we must be
able to communicate should he wish to get further information from
me. I offered to give him my email
address.”
Further on the following
was put to her: “
Let
me put this to you for your comment.Mr Maree communicated on
numerous occasions with the person whom you had nominated to
provide
information regarding your claim whilst you were in the United
Kingdom and that person did not provide the information.---
At that
consultation Mr Maree and my father agreed that from a logistical
point of view, because I am not physically …here
in South Africa
,it is useful to have a point of contact. At no point was my father
going to do everything on my behalf.”
[20] In its plea the
defendant initially denied all the allegations made against it
including the fact that the collision was
due to the sole negligent
driving of the soldier who drove the insured vehicle. The defendant
nevertheless pleaded that
“it was further an implied or alternatively tacit term of the
mandate that the defendant would exercise due care and diligence,

and not act negligently in performing its mandate. Further that it
was an implied, alternatively tacit term of the mandate that
the
defendant would only be liable to the plaintiff for breach of
mandate if it did not exercise due care and diligence, and
acted
negligently in the performance of its mandate.”
In
its amended plea at para 6 defendant pleaded that
‘in
amplification … the defendant pleads that it exercised due care
and diligence, and denies that it acted negligently in
the
performance of the mandate.”
[21] It is noteworthy
that the defendant shifted wholesale ground when the trial was due
to commence when, through the backdoor,
its main case and defence
shield became one of agency. In its plea defendant did not raise the
issue or the defence of agency.
This issue only came to light in
response to the list of the pre-trial enquiries in terms of
rule
37(4)
, and later during cross-examination by defendant’s counsel
of the plaintiff. Maree claimed that it was on the strength of

Heyman’s appointment as agent that he communicated from the onset
and at all times with him. He maintains that when Heymans failed
to
sign the prescribed MMF1 form and provide him with the power of
attorney he stopped communicating with him on 28 June 2004
and the
claim prescribed as a result.
[22] It is not in
dispute that the defendant had all the crucial information necessary
to file the claim with the RAF. Nor is
it in dispute that had the
claim been filed with the RAF timeously it would have been in
substantial compliance with the regulations
even if it was not
signed. In
SA
Eagle Insurance Co Ltd v Pretorius
1998(2) SA 656 (SCA) at 663A-D the Supreme Court of Appeal
pronounced that:
“
Notwithstanding the wording of
art 62(d)(i) and the corresponding wording of its predecessors, in a
long line of decisions in
this and other Courts pre- and post-1978
it has been held that (1) the submission of a claim form is a
peremptory requirement;
(2) the prescribed requirements in regard to
the completion of the form are directory; and (3) what is required
is substantial
compliance with such requirements. (See Rondalia
Versekeringskorporasie van Suid-Afrika Bpk v Lemmer
1966 (2) SA 245
(A) ; Nkisimane and Others v Santam Insurance Co Ltd
1978 (2) SA 430
(A) , particularly at 435F--436E; AA Mutual Insurance Association
Ltd v Gcanga
1980 (1) SA 858
(A) at 865B-F; Evins v Shield Insurance
Co Ltd
1980 (2) SA 814
(A) at 831B-F and Guardian National
Insurance Co Ltd v Van der Westhuizen
1990 (2) SA 204
(C) , where
the relevant principles are conveniently and concisely set out at
210B-211F, and Moskovitz v Commercial Union Assurance
Co of SA Ltd
1992 (4) SA 192
(W)).In Nkisimane's case supra at 436E-F, Trollip JA
doubted that it was ever the intention that a defectively completed
form
could be relied upon as an additional defence to a claim for
compensation.”
The court went on to say
at 663E:
“
It also appears from the
authorities to which I have referred that
the test for substantial compliance is an objective one
(AA Mutual Insurance Association Ltd v Gcanga (supra at 865H)).
Broadly speaking, the question must be posed whether sufficient

particularity has been furnished to enable a reasonable insurer to
consider its position in relation to the claim before it becomes

involved in litigation, and to enable it to investigate the claim,
if necessary. Differently put, would a reasonable insurer
have been
prevented by any omission or inaccuracy in the claim form from
properly investigating the claim and determining its
attitude
towards it?”
(My
underlining)
From these authorities
it is clear that an apparent failure to sign an MFF1 form which was
duly and properly completed in all
respect such as in the present
matter is considered to be in substantial compliance with the
regulations of the Act. See
Mogape
v Netherlands Insurance Co of South Africa Ltd
1978 (4) SA 609
(W) at 613 and cases quoted therein. The position
that the defendant is adopting is contradictory. It blows hot and
cold. Maree
says he is unable to recall whether plaintiff was
present at the one and only consultation on 25 June 2003 at which he
received
his mandate to represent the plaintiff and instructions to
recover damages from the RAF. In an effort to convince the court
that
he did not remember her presence he states that he was prepared
to accept that she must have been present during the consultation.

The contradiction lies in the fact that he claims a vivid memory
that plaintiff appointed her father, Heymans, as agent because
this
could only have happened
inter
partes
.
It should be borne in mind that Heymans’ appointment could not
have been made telephonically, by post or via email because
it was
common cause that plaintiff and Maree had never directly
communicated with each other after 25 June 2003 (the consultation

date). I can hardly envisage that Maree,with his knowledge of and
expertise in RAF matters, the ethical rules, the laws and

regulations pertaining to an attorney’s practice, would deal with
plaintiff’s matter by proxy and remote control as he suggests
in
his defence.
[24] In my view the
belated agency defence is an afterthought and a fabrication. That is
why agency was not even pleaded. There
is no doubt that plaintiff
was present with her father during consultation as the objective
evidence shows. I refer
inter
alia
to the documentation furnished to Maree during consultation and the
fact that plaintiff recorded her forwarding address (the
email
address) on the cover of her file that remained in the custody of
the defendant throughout. Maree’s play to shift all
or most of the
blame and responsibility to plaintiff’s father who did not owe the
plaintiff a duty of care, is unconvincing
and hollow.
[25] It is important to
note that after plaintiff had issued summons against the defendant
Maree wrote to plaintiff’s father,
Heymans, that Schoeman Maree
Inc are jointly liable for the damages suffered by the plaintiff and
urged him, in terms of the
Apportionment of Damages Act No 34 of
1956 to join as a party or risk being joined upon his failure or
being sued should plaintiff’s
action succeed. Tellingly Maree
wrote:
“
Te
alle tersaaklike tye het u teenoor skrywer vermeld dat u ‘n
algemene volmag het om die eis dokumente namens en ten behoewe
van u
dogter te onderteken. Die eisvorm is aan u gelewer vir
ondertekening en ondanks verskeie aanmanings daartoe en ‘n

waarskuwing dat u dogter se eis die potensiaal het om te verjaar,
het u nagelaat om die ondertekende dokumente aan ons te lewer.”
The letter does not say
Maree knows as a fact that during consultation on 25 June 2003
plaintiff appointed Heymans as agent, but
says that Heymans at all
material times represented that he has a general power of attorney
from his daughter to do what his
daughter should have done.
[26] I am satisfied that
plaintiff was an honest witness and gave credible evidence. I am
satisfied that Maree was less than frank
on a number of material
aspects in this case. Where he came up with a probable explanation,
most of the time extracted under
cross-examination, such concession
to a large extent corroborated the version of the plaintiff. On a
conspectus of the entire
evidence I have no doubt that the evidence
of the plaintiff must be preferred to that of Maree where conflicts
in their evidence
appear.
[27] An attorney who
undertakes a mandate, whether it be gratuitous or not is considered
to hold himself out as possessing the
necessary skills to discharge
such mandate diligently and is liable for damages occasioned by his
or her negligence in the discharge
of the duties emanating from such
trust. See
De
Villiers & Macintosh
at
326. In carrying out his mandate the defendant was personally or
through others, expected to exercise the knowledge, skill
and
diligence to be expected of an average practising attorney. See
Slomowitz
v Kok
1983(1) SA 130 (A) at 132;
Mouton
v Die Mynwerkersunie
1977 (1) SA 119
(A) at 142 – 143.
[28] A prudent attorney
acting carefully, particularly one of Maree’s professed skill and
expertise would at the least have
put Heymans on terms to perform
his alleged obligation or part of his bargain by a specified date.
The last conversation that
Maree had with Heymans was on 28 June
2004.The red lights were flickering because plaintiff’s claim was
due to prescribe in
less than a month’s time on 24 July 2004.
Maree did nothing more and the claim became prescribed. Having
regards to what was
at stake Maree had negligently allowed the claim
to prescribe. His conduct cannot be excused. It amounted to
dereliction of
duties and a breach of his mandate. If necessary he
should have walked across to the advocates’ chambers, which was in
close
proximity, during the final month or even a few days or a day
before the claim lapsed for advice or else he should have filed the

claim without the MMF1 form having been signed. In our law it would
have been substantial compliance with the regulations. As
I have
pointed out I doubt very much that Maree, the RAF expert, was
unaware of some of the cited authorities. He could even
have sought
a senior colleague or an advocate’s opinion. In my view this was
not even necessary as there was nothing complicated
about lodging
the claim timeously.
[29] It was submitted
on behalf of the defendant that:
“
It is completely untenable to
expect an attorney to engage in any activity that is unlawful, that
is upon suggestion of plaintiff
that Maree should have taken a
chance and signed the MMF1 form in an effort to protect plaintiff
(to prosecute his client’s
claim).”
I agree with
Colman
J
who
said in
Mazibuko
v Singer
1979 (3) SA 258
(W) at 264 – 265 that:
“…the
far greater evil was to allow the plaintiff's claim, which was
manifestly of enormous importance to him to become prescribed.”
[30] I am satisfied that
no attorney of ordinary competence and diligence, let alone one of
more than 20 years experience in
this type of matters, would have
allowed this claim to become prescribed. It was open to the
defendant to withdraw from the case
for lack of instruction or
proper instructions. However, such option had to be exercised
timeously and in terms of the rules
of court to ensure not only that
the Notice of Withdrawal reach the client but also to allow her time
to engage another attorney
to prosecute her claim. See Rule
16(4).This was not done. I consequently hold that there was a breach
of contract or mandate
entitling plaintiff to recover damages from
the defendant.
[31] There is no reason
why the costs should not follow the results.
[32] In the
circumstances I make the following order:
ORDER:
Judgment is granted
against the defendant in respect of plaintiff’s damages to be
determined.
Defendant is ordered
to pay the plaintiff’s costs of this trial.
________________
B. C. MOCUMIE, J
On
behalf of the plaintiff: Mr.
K
M Röntgen (Snr)
Instructed by:
Lovius – Block
BLOEMFONTEIN
On behalf of the
defendant: Advocate Green
Instructed by:
Schoeman
Maree Inc
BLOEMFONTEIN