IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

Not Reportable
Case no: 1 5982/2021

In the matter between:

DONOVAN HADLEY MOOSE PLAINTIFF

and

W VAN DER SCHYFF ATTORNEYS DEFENDAN T

Coram: SIEVERS AJ
Heard : 5 JUNE 2025
Delivered: 23 JUNE 2025

Summary: Claim against an attorney for breach of mandate in respect of a
prescribed claim.


ORDER

1. The defendant is liable to the plaintiff for such damages as may
be proved or agreed.
2. The defendant shall pay the plaintiff’s costs of suit, as well as the
costs of counsel on scale B.


JUDGMENT


Sievers AJ :

Introduction

[1] The plaintiff, an adult male basic life support ambulance practitioner
instituted action against the defendant, a practising attorney, for the
recovery of damages which he suffered based on an alleged breach of
mandate. The plaintiff contends that the defendant negligently caused his
claim pursu ant to the provisions of the Road Accident Fund Act 56 of 1996
(‘the RAF Act’) to prescribe.

[2] The parties requested a separation of issues and that the merits of the
plaintiff’s claim be determined first. Accordingly, and at the request of the
Court, the p arties filed a joint practice note dated 25 November 2024,
setting out the issues to be determined.

[3] In accordance with the agreement re corded in the joint practice note, the
Court is called upon to consider the following issues to determine the
defendant’ s liability:

a. Whether the plaintiff had a valid claim against the Road Accident
Fund.

b. Whether an agreement was concluded between the plaintiff and the
defendant in terms whereof the defendant was mandated to lodge
and pros ecute a claim against the Road Accident Fund (‘the
mandate’).
c. Whether the defendant breached the agreement.

[4] The plaintiff testified in person and further relied on the evidence of one
further witness, Noma de Serfontein.

[5] The defendant , a sole practitione r William Arthur van der Schyff, testified
in person and called Ms Mush feequah van der Berg as a witness.

Background facts and pleadings

[6] The plaintiff alleges that he engaged the services of the defendant during
or about August 2014. In this regard, the p laintiff pleads that the
defendant , represented by Mr W van der Schyff , accepted instructions to
perform, inter alia, the following professional services as the attorney
acting on behalf of the plaintiff:

a. To lodge a valid RAF claim with the RAF timeously and within the
statutory time limit for such a claim, being three years from the date
of the collision on 9 August 201 1.
b. To prosecute the RAF claim by way of legal proceedings timeously
and within the statutory time limit of five years from the date of the
collision on 9 August 2011, should this be necessary.

[7] The plaintiff’s claim against the RAF arose from a motor vehic le collision,
which occurred at 18h30 on 9 August 2011 in Vanguard Drive, Athlone,
Western Cape, when a black Mercedes Benz (‘the insured vehicle’) at the

time driven by one Ronald Williams (‘the insured driver’) collided with an
ambulance driven by the plaintiff.

[8] The plaintiff alleges that the collision was caused by the sole negligence of
the insured driver and that he sustained serious bodily injuries as a result
of the collision. The plaintiff accordingly alleged that he had suffered
damages in the f orm of past medical expenses, future medical related
expenses, loss of earnings and general damages.

[9] The plaintiff pleaded that the defendant when accepting plaintiff as a client
undertook a legal duty towards plaintiff to execute his claim against the
RAF.

[10] The p laintiff further avers that during March 2020 he established that
because of the defendant’s breach of the agreement, alternatively the
breach of its legal duty to him, his RAF claim had prescribed as the
defendant had wrongfully and negligently f ailed to prosecute the RAF
claim timeously and within the statutory time period of five years.

[11] The defendant denied knowledge of the collision and the averment that
the collision was caused by the sole negligence of the insured driver.

[12] The defendant furt her denied the allegations made by the plaintiff in
respect of the agreement but averred that during the time that he was in
any manner dealing with the affairs of the plaintiff, he acted with the
requisite skill and without negligence.

[13] The defendant furt her pleaded that :

a. he at all times acted on the basis of instructions given to him by the
plaintiff whilst he was his client;

b. he could not take any further steps with regard s to the plaintiff’s
claim as the plaintiff , despite numerous attempts by the defendant ,
did not contact the defendant timeously or at all in order for the
defendant to proceed with issuing summons against the RAF;
c. he accordingly denied that the defendant did or omitted to do
anything for and on beh alf of the plaintiff which was in conflict with
his contractual duty towards to the plaintiff;
d. he could not proceed with issuing summons against the RAF, as no
information was furnished by the plaintiff in order to compute an
amount commensurate with injuries suffered by the plaintiff.

Issues to be determined

[14] As appears from the above, the following issues are to be decided to
determine the defendant’s liability:

a. Whether the plaintiff had a valid claim against the Road Accident
Fund.
b. Whether an agreement was concluded between the plaintiff and the
defendant in terms whereof the defendant was mandate d to lodge a
prosecute a claim against the Fund .
c. Whether the defendant breached the agreement.

Plaintiff’s claim against the Road Accident Fund

[15] In establishing whether the plaintiff had any likelihood of success in a
claim to be instituted against the Roa d Accident Fund, it is necessary to
decide whether:

a. the plaintiff was involved in a motor vehicle collision;
b. the plaintiff suffered bodily injuries;

c. the bodily injuries were as a result of the negligent driving of the
insured driver.

The collision

[16] The plaintiff confirmed that he was involved in a collision but has no
recollection thereof because of the severe injuries that he sustained.

[17] Ms Nomade Serfontein testified on behalf of the plaintiff . She was a
passenger in the ambulance being d riven by the plaintiff at the time of the
collision. She testified that they had been called to assist a patient in
Bonteheuwel and were driving to New Somerset Hospital in Cape Town
with the patient who was in a critical condition.

[18] Serfontein te stified t hat they were on Jakes Gerwel Road turning onto the
offramp on to the N2 in direction of Cape Town, and that she was in the
patient compartment of the ambulance at the time. They drove onto the
bridge to go onto the intersection of the N2 when she suddenl y felt the
impact on the left side of the ambulance, which flipped over.

[19] Serfontein advised that the ambulance was not travelling at speed as
there was traffic at the time. She advised that the plaintiff would stop at
stop streets and only proceed if it w as sa fe to go over. She further
confirmed that the ambulance made use of both the lights and sirens
when it was travelling with a patient in a critical condition and gave an
explanation as to how she knew that both the lights and siren were
operating at th e time of the collision.

[20] Serfontein testified that upon exiting the ambulance after the collision, she
noted the plaintiff lying in the road in a critical condition.


[21] Serfontein stated that on the day of the collision she had felt , while sitting
in the rear of the ambulance, that the ambul ance had slowed down and
proceeded very slowly before the impact. She confirmed under cross -
examination that the ambulance had slowed down and that the plaintiff
pulled away slowly whereupon she felt the impact.

[22] Her evidence was not disputed under cross -examination and no contrary
version of the events that day were put to her .

Hearsay evidence

[23] The defendant brought an application , in terms of s 3 of the Law of
Evidence Amendment Act 45 of 1988 , to introduce an affidavit deposed to
by the insured driver, Williams , who had since passed away

[24] The plaintiff consented that the affidavit be admitted on condition that the
probative value thereof be considered on argument. Clearly, the plaintiff
was not able to cross -examine the deponent of the affidavit and
accordingly the reliability thereof cannot be determined.

[25] In the affidavit, Mr Williams stated that at the time of the collision he was
coming from Vangate Mall going to Bonteheuwel in the right lan e. He
stated that the robot s were green for him to proceed and that he did not
see any red lights or blue lights or sirens. He advised that he was driving
his black Mercedes and did not see the ambulance and only saw what had
collided with his vehicle when he ex ited his vehicle. He was not injured in
the collision. It is noted that Mr Williams did not deny that the ambulance
lights or sirens were activated at the time of the collisions but stated that
he did not see them.


[26] The defendant also called Ms Mushf eequah van der Berg to testify on his
behalf. This evidence came as a surprise as no reference was made to Ms
Van der Berg in the affidavit filed in support of the application to introduce
the hearsay evidence.

[27] Ms Van der Berg testified that on the day of the collision, she was a front
seat passenger in the insured vehicle. She testified that the ambulance did
not have any lights or siren on at the time of the collision and that the
insured vehicle was hit on the driver ’s side by the ambulance , which had
driven over a red traffic light. She stated that the traffic lights were green in
their favour.

[28] During cross -examination Van der Berg conceded that she saw the
ambulance approaching the traffic lights from the right -hand side. Van der
Berg confirmed that given the fact that the insured driver was a very
observant driver, he would similarly have noted the ambulance
approaching from the right -hand side. Van de r Berg conceded that the
insured driver, despite of having noted the ambulance, did not slow down
or apply brak es and continued at the speed that he was driving prior to
entering the intersection.

[29] Van der Berg further conceded that generally speaking when approaching
an intersection, vehicles should give an ambulance the right of way and
that in spite of the aforesaid, the insured driver did not slow down at all
and kept proceeding at the speed at which he was approaching the
intersection.

[30] Van der Berg ha d made no statement at the time of the accident and
accepted that as the accident had occurred some time ago, this could
have affected her memory. She had read the insured driver’s affidavit
several times to refresh her memory.


[31] It is important to note that the evidence upon which the defendant wishes
to rely on in respect of the collision was never put to the plaintiff, nor to
Serfontein in cross -examination.

[32] In this regard, the evidence that the ambulance was driving with its siren
and lights on was never contested, neither was Serfontein’s evidence
challenged that the ambulance was moving very slowly and came to a
standstill , before proceeding just prior to the impact. It was also not put to
Serfontein in cross -examination that another witness would cont radict her
version.

[33] The implication of such a failure was identified in President of the Republic
of South Africa and others v Rugby Football Union and others 1 as follows:

‘The institution of cross -examination not only constitutes a right, it also
imposes certain obligations. As a general rule it is essential, when it is
intended to suggest that a witness is not speaking the truth on a particular
point, to direct the witness' s attention to the fact by questions put in cross -
examination showing that the imputation is intended to be made and to
afford the witness an opportunity, while still in the witness -box, of giving
any explanation open to the witness and of defending his or her character.
If a point in dispute is left unchallenged in cross -examination, the party
calling the witness is entitled to assume that the unchallenged witness ’s
testimony is accepted as correct. This rule was enunciated by the House
of Lords in Browne v Dunn and has been adopted and consistently
followed by our courts. ’


1 President of the Republic of South Africa and others v Rugby Football Union and others 2000
(1) SA 1 (CC) at para 61.

[34] Serfontein clearly should have been cross -examined upon the matters
which the defendant alleges makes her unworthy of credit. In this regard,
in Small v Smith 2, Claassen J said:

‘It is, in my opinion, elementary and standard practice for a party to put to
each opposing witness so much of his own case or defence as concerns
that witness and if need s be to inform him, if he has not been given notice
thereof, that other witnesses will contradict him, so as to give him fair
warning and an opportunity of explaining the contradiction and defending
his own character. It is grossly unfair and improper to let a witness ’s
evidence go unchallenged in cross -examination and afterwa rds argue that
he must be disbelieved. ’

[35] Accordingly, the evidence presented by the defendant, contrary to the
evidence of the plaintiff and Serfontein, which was not put to them under
cross -examination, cannot be accepted. See Maite v Borman Du ma Zitha
Attorneys 3.

[36] It is in any event common cause that the plaintiff was driving a pr ivilege d
vehicle in the execution of his duties at the time of the accident. Such a
driver may disregard the directions of a road traffic sign, which is
displayed in a p rescribed manner, provided that:

a. he or she shall drive the vehicle concerned with due regard to the
safety of other traffic; and
b. such vehicle shall be fitted with a device capable of emitting a
prescribed sound with an identification lamp, as prescribed, and
such device shall be so sounded, and such lamp shall be in

2 Small v Smith 1954 (3) SA 434 (SWA) at 438.
3 Maite v Borman Duma Zitha Attorneys (42064/2017) [2025] ZAGPJHC 183 (18 February
2025 ).

operation while the vehicle is driven in disregard of the road traffic
sign 4.

[37] Furthermore, a driver of a non -privileged vehicle will give immediate and
absolute right of way to a vehicle sounding a device or bell or displaying
an identification lamp 5.

[38] I am satisfied that the plaintiff has established that the ambulance’s
warning device s (the lights and siren) were activated at the time of the
collision. It does not avail the ins ured driver to state that he did not hear
the siren nor see the activate d lights. The insured driver was required to
drive at such a speed that he was able to react to the sound of the
privileged vehicle’s warning device in time to avoid causing damage to the
ambulance and the plaintiff 6.

[39] Based upon Serfontein’s evidence it is found that the collision occurred
because of the sole negligence of the insured driver.

Plaintiff’s bodily injuries

[40] The plaintiff testified that he was hospitalised following his injuries and that
they consisted of bilateral chest injuries, a fractured humer us on the right -
side of the upper arm and fractures of L1, L2 and L4. The plaintiff further
confirmed the medical report obtained from Dr Elmi n Steyn, a surgeon,
which sets out the polytrauma that he sustained as testified.

[41] The defendant admitted during cross -examination that the plaintiff was
injured because of the collision.


4 Section 58 of the National Road Traffic Act 93 of 1996.
5 Regulation 308 of the National Road Traffic Act 93 of 1996.
6 S v Phillip 1968 (2) SA 209 (C) at 261 C-D and E -F.

[42] I accordingly find that there would have been a likelihood of success in
proceedings against the Road Accident Fund.

The agreement between the parties (‘the mandate’)

[43] The defendant testified that he was a sole practi tioner who had been in
practice since 200 0 to the present.

[44] The plaintiff testified that he met the defendant at his house where the
defendant agreed to assist him with a RAF claim. The plaintiff testified that
Van der Schyff requested him to provide him with several documents
relating to his hosp italisation, as well as the merits document from the
Athlone Police Station. The plaintiff confirmed that he provided the
defendant with all the requested documents.

[45] The plaintiff further testified that Van der Schyff had visited him in Caledon
in 2014 and requested him to sign a special power of attorney in terms of
which the defendant was appointed inter alia to do all things necessary to
finalise the claim for compensation and to do or to have done whatsoever
was requi red. The plaintiff further signed a so-called medical authority.

[46] The defendant in his evidence admitted that he received a mandate from
the plaintiff to proceed with the claim against the Road Accident Fund, and
that the claim was timeously lodged within the three -year period. He was
referr ed to the lodgement letter dated 7 August 2014 sent by him to the
claims manager of the Road Accident Fund in which he recorded that the
sole cause of the accident and the relevant injuries were due to the
insured driver’s negligent driving. Van der Schyff further confirmed that
following the lodgement, he received correspondence from the Road
Accident Fund confirming that the claim was lodged timeously.


[47] Van der Schyff further testified that on the 25th of February 2015, he wrote
to the Road Accident Fund confirming that he was acting on behalf of the
plaintiff and request ed an update as to the progress regarding the claim.
He advised that he received no further correspondence from the Road
Accident Fund and acknowledged that it was a valid claim and there had
been no objection made regarding it.

[48] The plaintiff has established that the defendant was properly manda ted to
lodge a claim against the Road Accident Fund and to institute action
timeously .

Did the defendant breach the agreement?

[49] The defendant in his plea conceded that summons was not issued against
the Road Accident Fund timeously. Mr Van der Schyff further admitted
during cross -examination that he knew that proceedings had to be
instituted against the Road Accident Fund within the five-year period a s
regulated by s 23 of the Road Accident Fund Act.

[50] Mr Van der Schyff further accepted that his mandate was to pursue the
claim to its fullest and that he had not issued summons against the Fund
within five years of the accident or at all.

[51] Accordingly, th e plaintiff has established that the defendant failed to
prosecute his claim by way of legal proceedings ( by issuing a summons)
timeously and that this was a wrongful and negligent breach of the
agreement and the defendant ’s duty of care.

The defendant’s defences


[52] The defendant pleaded that he was unable to take further steps regarding
the plaintiff’s claim as the plaintiff, despite numerous attempts by him, did
not contact him timeously in order to proceed with issuing of summons
against the Road Accident Fund.

[53] The defendant further pleaded that the plaintiff failed to inform him of a
lost of earnings and that he did not possess the necessary funds to
appoint and actuarial scientist to compute the plaintiff’s losses and
expenses.

[54] The defendant, in the result, pleaded that he could not proceed with
issuing a summons against the Road Accident Fund as no information
was furnished by the plaintiff to compute an amount commensurate with
the injuries suffered.

[55] Under cross -examination, h owever, Van der Schyff conceded that he was
able to deal with the four elements of the quantum of the plaintiff’s claim.
He firstly conceded that he was in a position to estimate the past medical
expenses and similarly, the future medical expenses. Regardi ng the
general damages component, given the fact that the defendant had
knowledge of the injuries sustained, he accepted that he was able to
provide an estimate of the general damages cl aim. Thirdly, Van der Schyff
accepted that he had various employer’s reports in his possession and
that the details of the employer were included in the RAF 1 Form and
accordingly, he was able to obtain sufficient information with regard to loss
of earnings. With reference to Rule 18 of the Uniform Rules of Court, it
was p ut to the defendant that a claim for loss of earnings is an estimate
and that he could have provided such an estimate in the particulars of
claim. Van der Schyff conceded that he could have contacted the plaintiff’s
employer to obtain whatever necessary de tails were required to proceed.


[56] In the witness box, Van der Schyff contended that he would have
instructed counsel to assist with the drafting of the particulars of claim, but
that he did not have a mandate to instruct counsel.

[57] In surprising testimony Va n der Schyff stated that he had informed the
plaintiff that the claim was going to prescribe and that a summons had to
be issued. He stated that he had informed the plaintiff of this
telephonically. This had never been put to the plaintiff in cross -
examina tion.

[58] Van der Schyff testified that he spoke to the plaintiff telephonically during
2015, at which point in time he informed the plaintiff that his claim was
going to prescribe. He acknowledged that the plaintiff was a layperson and
had no knowledge of th e regulations and time limits in respect of the Road
Accident Fund , and as a result was relying on Van der Schyff’s guidance
in that regard.

[59] Van der Schyff conceded that a reasonable attorney in his circumstances
knowing that a claim was going to prescrib e had a duty to ensure that the
matter did not prescribe.

[60] As a result, the only defence offered by the defendant in the
circumstances was that there was no mandate to brief counsel to draft the
particulars of claim. In answer to a question by the Court, V an der Schyff
answered that he informed the plaintiff telephonically that the claim was a
high court claim and that they were required to proceed with summons
and as a result, needed to instruct or brief counsel. Van der Schyff then
acknowledged that the plaintiff had during the telephone conversation in
2015 , instructed him to proceed to issue summons in the high court.


[61] Accordingly, the defendant failed to sustain any defence that he was not
able to institute the action prior to the prescription of the claim.

Conclusion

[62] The defendant accepted a mandate from plaintiff to pursue a claim against
the Road Accident Fund. The claim was lodged timeously within the three -
year period by the defendant, how ever, summons was not issued within
the prescribed five-year period and resultantly the claim against the Road
Accident Fund prescribed.

[63] The defendant had the necessary information about the plaintiff, the
accident, the offending vehicle, the driver s invo lved, as well as the injuries
to proceed with the issuing of summons.

[64] Clearly the information which the defendant had in his possession was
sufficient to enable an in formed calculation and composition of the
quantum of compensation to be claimed to satisf y the requirements of
Rule 18 of the Rules of Court.

[65] An attorney who undertakes a mandate is considered to hold himself out
as possessing the necessary skills and to discharge such mandate
diligently and is accordingly liable for damages occasioned by his or her
negligence in the discharge of the duties emanating from such trust.
(Mlenzana v Goodrick & Franklin 2012 (2 ) SA 433 (FB) paras [96] to [101 ])

[66] Van der Schyff testified that he is a practising attorney and has been in
practice since the year 2000. He further testified that he is familiar with
Road Accident Fund claims and had knowledge of the fact that the claim
would prescribe within five years’ time if the summons was not issued. No
attorney o f ordinary competence and diligence, more so with the

experience of the defendant in these types of matters, would have allowed
the claim to become prescribed.

[67] It is to be noted that whilst it was open to t he defendant to withdraw from
the case for lack of instruction s or proper instructions, no such option was
ever exercised.

[68] Accordingly, as the defendant failed to exercise the skill, knowledge and
diligence expected of an average attorney, it follows that the defendant
acted negligently and that his negligence makes him liable to the plaintiff.

[69] Accordingly, and for the reasons set out above, I have come to the overall
conclusion that the plaintiff has established, on a balance of probabilities ,
all the essentialia of his claim against the defendant. I accordingly find that
the defendant is liable to the plaintiff for such damages as may be proved
or agreed, plus costs.

[70] It is accordingly ordered that:

1. The defendant is liable to th e plaintiff for such damages as may be
proved or agreed .
2. The defendant shall pay the plaintiff’s costs of suit, as well as the
costs of counsel on Scale B.


_____ ________________________
F S G SIEVERS
ACTING JUDGE OF THE HIGH COURT


Appearances


For plaintiff : Adv E Benade
Instructed by: Mr J Potgieter (DSC Attorneys)

For defenda nt: Adv S Banderker
Instructed by: Mr W Van der Schyff