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[2001] ZASCA 131
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Shapiro & De Meyer Inc v Schellauf (215/00) [2001] ZASCA 131 (27 November 2001)
THE
SUPREME COURT OF APPEAL
OF SOUTH
AFRICA
CASE NO. 215/00
In
the matter between
SHAPIRO
& DE MEYER INCORPORATED Appellant
-and-
RUDOLPH
SCHELLAUF Respondent
Coram:
Vivier, Marais, Streicher, Mpati, JJA and Froneman AJA.
Heard:
20 November 2001.
Delivered: 27 November 2001
JUDGMENT
FRONEMAN AJA
[1]
The history of this matter is an unhappy one. Many reckless
allegations of incompetence and dishonesty on the part of various
attorneys, advocates and judges have been made by one of the parties
in the course of these and related proceedings. They are, however,
irrelevant to the only material issue on appeal, namely to what
extent the respondent (an erstwhile client) is liable to reimburse
the appellant (a firm of attorneys) for fees paid to counsel by the
appellant for the preparation of heads of argument in another
appeal
on behalf of the respondent.
[2]
The appellant succeeded in obtaining judgment
for the full amount it claimed from the respondent in the Pretoria
magistrates’
court. On appeal to the Transvaal Provincial
Division of the High Court (before Claassen and Smith AJJ) the
respondent succeeded
in having that amount reduced. Both parties were
granted leave to appeal to this court, but the respondent failed to
prosecute
his appeal and consequently the only appeal properly before
this court is that of the appellant.
[3]
The sorry tale started when a farm venture arising from the purchase
of a farm by the respondent and some acquaintances of his
went awry.
The dispute landed up in court, but was eventually settled. The
respondent brought an unsuccessful application to set
aside the
settlement agreement. Leave to appeal was refused by the court
hearing the application, but granted to the respondent
by this court
to the Full Bench. Counsel who was originally involved in the matter
was not available to do the appeal and efforts
were made to obtain
the services of another. Senior counsel from Pretoria was then
briefed to prepare heads of argument and to
argue the appeal. He
asked for a consultation with client because he considered two of the
four points to be raised on appeal to
be without merit. The
respondent, his wife and Mr. Shapiro, an attorney of the appellant
firm, attended the consultation where
counsel informed them of his
views. Afterwards the respondent and his wife expressed their
unhappiness at this turn of events to
Shapiro. Some two weeks later
the appellant’s mandate to act for the respondent was
terminated. By that time counsel had
drafted the heads of argument.
Appellant paid counsel’s account and sought to recover the
balance still owing to the appellant
by the respondent, from him. The
respondent refused to pay, which led to the present round of
litigation.
[4]
Much colourful detail has been left out of
this brief account of the background to the matter. What matters for
the purposes of
this appeal, however, is what transpired at the
consultation with counsel and thereafter, from the time that
respondent, his wife
and Shapiro left the consultation until the
appellant’s mandate to act on behalf of respondent was
terminated.
[5]
In my view it is important to emphasize this
relatively narrow ambit of the issue on appeal. After the appellant’s
mandate
was terminated a bill of costs was duly drawn up by the
appellant and presented for taxation. Respondent had the opportunity
to
contest the reasonableness of the fees on taxation and, if not
satisfied with the outcome, to apply for a review of the taxation.
The taxation was not taken on review. When the matter came to trial
in the magistrates’ court the only issues on the pleadings
were
(1) whether counsel had in fact spent the number of hours reflected
on his statement of account in reading the record and
(2) whether the
respondent had terminated or suspended the appellant’s mandate
to require the senior counsel concerned to
prepare the heads of
argument, prior to counsel having worked on the heads of argument.
The first issue was a non-starter: the
taxation process had
effectively disposed of that question. Nevertheless, it was a point
persisted in even on appeal, on the premise
that correspondence
between Shapiro and counsel showed that counsel only received the
appeal record after the date his account
records that he read the
record. There is no merit in the point. The letter from Shapiro
refers to the petition (more accurately
the application) for leave to
appeal, not the actual record of the appeal. Another red herring was
respondent’s assertion
in evidence at the trial that counsel
was only briefed for advice and not on appeal. The magistrate rightly
rejected this evidence
and there are no grounds on record to justify
interference on appeal with that finding. What remains is the second
issue, the determination
of which depends on what effect the
consultation and the events following upon it had on the earlier
mandate given to the appellant
to brief counsel for the appeal and
for counsel to prepare heads of argument.
[6]
Shapiro testified that at the consultation on 12 March 1996 counsel
was given the go-ahead to prepare for the appeal on the basis
of the
two points he considered arguable. After the consultation the
respondent and his wife went to a coffee shop where they expressed
reservations about counsel’s advice to Shapiro. Shapiro
indicated that if they were unhappy they should let him know whether
they still wanted the other two points to be argued and whether
another advocate should be instructed or not. On 12 March the
respondent sent a fax to Shapiro in which he stated that it was not
possible for them to make such a quick decision and in which
he
requested clarification on a number of matters. On 14 March he sent
another fax complaining that Shapiro had not replied to
his queries.
This letter again set out a litany of complaints that respondent had
about the litigation process. On 18 March Shapiro
replied, explaining
in some detail what options were available to the respondent, and
suggested that if respondent was dissatisfied
with the advice given
by counsel then respondent should instruct appellant to brief another
counsel (respondent avers that he only
received this letter on 30
March). On 24 March, the respondent terminated appellant’s
mandate to act for him in the appeal.
By then counsel had already
spent considerable time in preparing the heads of argument and sent
an account to the appellant for
payment of his fees in connection
with the preparation of the heads of argument. Appellant paid him
and, as noted earlier, the
only real issue in the appeal to this
court is whether in doing so it acted within its mandate from the
respondent.
[7]
In the court below Claassen AJ held that in circumstances outlined
above there was a duty on Shapiro to convey the respondent’s
misgivings to counsel and that “the original mandate to
continue with the appeal was withdrawn or at least temporarily halted
and Mr. Shapiro was not entitled to accept that he had a mandate to
continue without [respondent’s] express authority”.
In my
view this conclusion is not supported by the evidence on record, nor
by legal principle.
[8]
The respondent had, in October 1995, given
the appellant a written power of attorney to do whatever was
necessary to proceed with
the appeal. In none of the two faxes sent
to Shapiro after the consultation did the respondent expressly inform
Shapiro that the
mandate was withdrawn or suspended. In my view their
contents also do not justify any such implication. Although the
respondent
and his wife are lay people they were, by that stage, well
aware that they could end an attorney’s mandate if they wished
to do so (they had done it previously). As a matter of practical
reality legal practitioners can hardly be expected to stop work
whenever their clients express some doubt about a specific aspect,
but fail to instruct them to do anything about it.
[9]
The relationship between attorney and client is a contractual one,
said to be based on
mandatum
,
with some features particular to this kind of agency (
Goodricke
& Son v Auto Protection Insurance Co Ltd
(in liquidation) 1968(1) SA 717 (A) at 722 H). There is no general
principle of the law of contract that allows a party to a contract
to
suspend or terminate the contractual relationship merely by
expressing some doubt or dissatisfaction with aspects of that
relationship.
Nor is there any feature of the attorney and client
kind of mandate that justifies such a particular rule. It is true
that an attorney
must act according to the instructions of the client
and report to the client when it is reasonable and necessary
(
Goodriche & Son v Auto Protection
Insurance Co Ltd
(in liquidation) 1967(2) SA
501 (W) at 504E-F), but “[t]his duty on the part of an attorney
is not a servile thing; he is
not bound to do whatever his client
wishes him to do” (Van Zyl,
Judicial
Practice of South Africa,
4
th
ed, at 33). Although this was stated in the context of explaining
that an attorney may only carry out legal and proper instructions
of
his client, it underscores the point that clients engage attorneys
not only to do their bidding, but to benefit from their professional
expertise. I am appreciative of the fact that there is a crisis in
access to legal services in this country and that established
traditions and rules must be subjected to scrutiny in the public
interest (compare
De Freitas v Society of
Advocates of Natal
2001(3) SA 750 (SCA),
para. [5], at 762B), but sensitivity to the needs of a client does
not translate into a legal duty to stop
or suspend professional work
as soon as a client expresses some reservation about a particular
course of conduct. Circumstances
may call for an explanation of the
proposed conduct and necessitate the client being informed of other
options in case of continued
dissatisfaction. That is exactly what
the attorney did here.
[10]
At the start of this judgment I alluded to the unhappy history of
this matter. The respondent and his wife are clearly aggrieved
by
what they perceive as the unjust treatment they received at the hands
of our legal system. That there are imperfections in the
administration of justice and that individuals on occasion suffer as
a result of it is an unfortunate fact of life. One can never
be
complacent about such a reality, but that does not justify unbridled
attacks on the integrity of all those involved in the legal
system.
Shortly before the hearing of this appeal the respondent’s wife
indicated that she wished to bring an application
to be joined as a
party to the proceedings. At the hearing neither she nor the
respondent had legal representation. She was allowed
to argue the
joinder application in person and in the course of that to deal with
the merits of the appeal. The respondent himself
did not wish to
present his own case but nothing prevented him from doing so. The
application is formally defective. There is no
notice of motion or
supporting affidavit. It is also defective in other respects. The
application was a ploy to enable the respondent’s
wife to
appear and argue the appeal on the respondent’s behalf. This
she is not entitled to do (compare
Volkskas
Motor Bank Ltd v Leo Mining Raise Bone CC
1992(2) SA 50 (W);
Yates Investments (Pty) Ltd
v Commissioner for Inland Revenue
1956(1) SA
364 (A) at 365C). The application should thus be dismissed, but
something more needs to be said about the respondent
and his wife’s
conduct in the matter. In this court
the
latter was, allowed to have her full say. In the course of doing so
she again recklessly cast allegations of impropriety and
dishonesty
upon a number of people. This has been a consistent pattern
throughout. I think it is necessary to express displeasure
at the
abuse of these proceedings for those purposes.
[11]
In the result the following order is made:
The
application for joinder of Mrs.Schellauf as a party to the appeal is
dismissed.
The
appeal is allowed with costs.
The
order in the court below is set aside and replaced to read:
“
The appeal is dismissed with costs.”
----------------------------------------
J.C.FRONEMAN
ACTING JUDGE OF APPEAL
VIVIER
JA )
MARAIS
JA ) CONCUR
STREICHER
JA )
MPATI
JA )