SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document
in compliance with the law and SAFLII Policy
HIGH COURT OF SOUTH AFRICA
(GAUTENG DIVISION, PRETORIA)
CASE NO: 35459/2018
In the matter between:
M[…]2 M[…] Plaintiff
and
SELWYN BRIAN DROBIS ATTORNEYS Defendant
P[…] I[…] M[…] Third Party
Summary: Attorney – liability – breach of obligations to client - a claim for
damages against Road Accident Fund under -settled. The attorney
settled a claim instituted by him on behalf of the father of a minor in
a negligent fashion, without proper attention to his client’s case
and, as a result thereof, on a factually incorrect basis . Claim
further finalised after the minor had already attained age of
majority. The attorney’s attempt to rely on the alleged acceptance
(1) REPORTABLE: NO
(2) OF INTE REST TO OTHER JUDGES: NO
(3) REVISED.
DATE: 7 APRIL 2026
SIGNATURE
2
of the settlement by the erstwhile minor’s father by way of third
party proceedings, was rejected. On the separated issue of liability,
the attorney was found to be liable for whatever difference can be
proven between the actual loss suffered by the plaintiff and the
under-settled amount. The extent of the loss is still to be proven.
_______________________________________________________________
ORDER
________________________________________________________________
1. The defendant is declared to be liable for the difference between whatever
loss the plaintiff may prove to have suffered in respect of a claim against
the Road Accident Fund pursuant to a motor vehicle accident which had
occurred on 30 May 2007, and the amount of R30 000.00.
2. The determination of the quantum of the above loss is postponed sine die.
3. The defendant’s claim against the third party is dismissed.
4. The defendant is ordered to pay the costs of the plaintiff and the t hird
party on the scale as between attorney and client , including costs
previously reserved. Counsel’s fees shall be taxable at scale B.
________________________________________________________________
J U D G M E N T
3
________________________________________________________________
The matter was heard in open court and the judgment was prepared and
authored by the judge whose name is reflected herein and was handed down
electronically by circulation to the parties’ legal representatives by email and
by uploading it to the electronic file of this matter on Caselines. The date of
handing-down is deemed to be 7 April 2026.
DAVIS, J
Introduction
[1] On 30 May 2007 two 13- year-old twin brothers, M […]1 and M […]2
were injured in a motor vehicle accident. They were both passengers in a
vehicle when a minibus taxi (driven by the insured driver) collided with the
vehicle conveying the brothers, resulting in an accident.
[2] A claim was instituted against the Road Accident Fund (the RAF) by the
defendant, an attorney of this court, Mr Selwyn Brian Drob is, on behalf of one
of the brothers, the current p laintiff. The p laintiff, then still a minor, was
represented by his father and natural guardian. At all relevant times Mr Drobis
was practising as a sole practitioner. He features in that capacity as the
defendant in the current proceedings,
[3] The plaintiff alleges that his claim was negligently pursued by the
attorney and subsequently settled with the RAF on a factually incorrect basis.
This happened when the p laintiff had already attained the age of majority, but
without a mandate from him and without his knowledge. Moreover, the p laintiff
claims that his claim against the RAF was grossly under settled and he now
claimed the difference between the true value of his claim and the under- settled
amount from the attorney.
4
[4] The attorney in turn, claims an indemnity from the p laintiff’s father by
way of third party proceedings.
[5] By agreement between the parties, the issues of merit and quantum were
separated in terms of Rule 33(4) and this judgment accordingly only deals with
the merits of the plaintiff’s claim and the merits of the defendant’s claim for a
declaration against the third party.
Evidence
[6] The oral evidence led on behalf of the plaintiff consisted of his own
evidence and that of an attorney Jan Odendaal van der Westhuizen and a
medical practitioner, Dr Schutte. On behalf of the d efendant, his secretary at the
time, Ms Laurel Theron and the d efendant himself testified. The p laintiff’s
father testified as the third party.
The plaintiff’s evidence
[7] The plaintiff, who was 31 at the time of the trial, testified that on the day
of the accident he and his brother were passengers in a motor vehicle. Later
evidence indicated that the driver of this vehicle was his father’s neighbour.
The plaintiff was seated in the left front passenger seat and his brother in the
rear. They were travelling from Daveyton to Tsakane. On the way, when the
vehicle had passed Springs, a white minibus taxi approached from the opposite
direction. Without warning and without any use of indicators, the minibus
turned to its right across their lane of travel and an accident occurred. As a
result, the p laintiff became trapped in the vehicle as his door could not open.
The rear door where his brother was seated, could however open and the two
boys exited the vehicle from there.
5
[8] The plaintiff was aware that he was injured. His face was bleeding and
he had difficulty breathing. He was assisted by way of an oxygen mask
administered by ambulance personnel who had arrived on the scene later. He
was taken to the Far East Rand Hospital where he remained for a day.
Thereafter he was taken to the Pho losong Hospital from where he was
discharged.
[9] The plaintiff sustained facial scarring above his eye and on top of his
head, injuries to his cheek and jaw (also referred to in medical records and
pleadings as mandible injuries), loss of all his front teeth and lacerations to his
nose and forehead. He could not eat for some time. The p laintiff demonstrated
in court that he now uses a set of false front teeth.
[10] At the hospital a soft tissue neck injury and a wrist injury were also
diagnosed and the plaintiff’s arm was placed in a plaster of Paris cast.
[11] Afterwards the p laintiff visited a dentist in Springs and also the local
clinic where his stitches were later removed.
[12] Despite the visit to the dentist, the p laintiff had to endure going without
front teeth for about 7 years.
[13] The plaintiff was never told of the cause of a further injury (which did not
feature in the lodgement documents) being a persistent pain in his right knee,
making walking long distances painful.
[14] The plaintiff remembers going with his father to an attorney to institute a
claim on his behalf against the Road Accident Fund. He even remembers falling
asleep in the attorney’s office. It later appeared that this attorney was the
defendant.
6
[15] While the plaintiff was still in school, the family did not have money for
tertiary studies. Knowing about the lodgement of the claim, the p laintiff read
up about the RAF who he then contacted. He was told that his claim was an
“old” one, which could not be located.
[16] In the second half of 2015 the p laintiff found out that his claim was still
“open”. This was in addition to his father having told him of a lack of
communication from the defendant. On the telephonic advice from the RAF, the
plaintiff approached new attorneys, being Campbell Attorneys, who later
became his attorneys of record in this matter.
[17] Subsequently the plaintiff had completed school and eventually graduated
from University i n June 2018. By that time Campbell Attorneys had told the
plaintiff that the defendant has settled his claim and that it would be paid out.
[18] In cross-examination, the p laintiff was extensively cross -examined as to
when he had approached Campbell Attorneys and his subsequent complaint
about the conduct of the d efendant to the Legal Practice Council (the LPC), but
nothing much turns on this.
[19] Of much more substance, was the exploration of the d efendant’s pleaded
defence that the eventual settlement of the p laintiff’s claim had been discussed
with his father prior to the acceptance of the RAF’s offer.
[20] It is apposite at this juncture to note that the d efendant had instituted
action against the RAF on behalf of the plaintiff’s father, acting in turn on the
plaintiff’s behalf. It is also common cause that, upon having received a
settlement offer from the RAF, the defendant, had accepted the offer on 22 July
2025. The amount of the accepted settlement was for R30 000.00 plus
R8 000.00 contribution to costs.
7
[21] Of equal importance are the file notes made by the defendant’s secretary
at the time in the attorney’s office file labelled “M[…] , PI obo M v RAF”. The
file notes which formed the crux of cross-examination are worth quoting. They
are these:
“18/5/2015 - receives son’s id copy
18/5/2015 - emailed handler re: repudiation
2015/06/03 - emailed 4 follow up
08/07/2015 - received offer – confirmed with client and
advisers (sic) to accept
22/07/2015 - call Mputhi – he has acceptance to send for
payment”.
[22] The file notes were supported by a list of telephonic communications
which reflect particulars which read as follows:
“CLIENT NAME: M[… ], PI obo M
CALL MADE TO: RAF
CURRENT PHONE NUMBER: -
DATE AND TIME OF CALL: 16-1-2014
CALL DURATION: 11:03 AM
NOTES: Handler Justice//Still open//
CLIENT NAME: M[… ], PI obo
CALL MADE TO: 0[… ]//
CURRENT PHONE NUMBER:
8
DATE AND TIME OF CALL: 16-01-2015
CALL DURATION: 1 minute Asked him to call back
CLIENT NAME: M[… ],PI obo
(pedestrian- scratched out)
CALL MADE TO: 0[… ]
CURRENT PHONE NUMBER: 0[… ]
DATE AND TIME OF CALL: 2015-05-11
CALL DURATION: 5 minutes – Explained his
son
is 1st year (UJ) passenger
CLIENT NAME: M[… ], PI
CALL MADE TO: SMS claimant to send ID
CURRENT PHONE NUMBER: 0[… ]
DATE AND TIME OF CALL: 13-5-2015 @ 11:12 am
NOTES: SMS for ID copy of son
ID received
CLIENT NAME: M[… ]
CALL MADE TO: RAF
CURRENT PHONE NUMBER:
9
DATE AND TIME OF CALL: 1:12pm
NOTES: 2 minutes – confirmed
Handler. No Def. Attorney
on record”
[23] The plaintiff confirmed that the cellular phone number referenced above
was that of his father, but denied that he had been told by his father about either
the offer from the RAF, the call s from the d efendant’s office or any advice or
acceptance of any offer.
[24] The defendant’s counsel referred the p laintiff in cross -examination to a
power of attorney dated 2 July 201 5. He confirmed his signature but could not
make out his identity number on the illegible copy. This power of attorney was
for Campbell Attorneys.
[25] This led to some debate as to whether the p laintiff had approached
Campbell attorneys in 2015, 2016 or 2017. It is common cause that the
settlement amount was only paid in 2018.
[26] The next witness for the p laintiff was attorney Jan Odendaal van der
Westhuizen (Van der Westhuizen). He was at all relevant times a senior
associate at Campbell Attorneys.
[27] Van der Westhuizen testified that the p laintiff had contacted him in late
June 2015 and that they had consulted in 2015 to prosecute a possible claim
against the Road Accident Fund. He was told by the p laintiff that the latter’s
father had previously consulted with an attorney but that he “had no idea” what
had happened to the claim.
10
[28] Van der Westhuizen confirmed the power of attorney referred to above
signed by the p laintiff on 2 July 2015. This was at Campbell’s A ttorneys’
offices in Pretoria.
[29] Van der Westhuizen then testified as to the submission of a claim on
behalf of the plaintiff to the Road Accident Fund together with the RAF1 forms
(in terms of the then existing legislation ) which had been received by the RAF
on 2 February 2016. Upon the Fund’s failure to respond within the prescribed
120 days, Campbell attorneys instituted action against the RAF on behalf of the
Plaintiff on 25 October 2016.
[30] When, on 8 November 2016, the RAF emailed Van der Westhuizen that it
had settled the p laintiff’s claim, Van der Westhuizen wrote to the defendant on
9 November 2016. The letter to the defendant read as follows:
“Please note that we hold instructions to lodge a claim on behalf of
client in this matter with the RAF as a result of injuries sustained in
an accident on 31 July 2007. Indeed we have done so and we have
proceeded with summons. We have now been informed by the
Road Accident Fund that the matter has in fact been settled with
your offices. Please advise the following:
1. By whom were you instructed in this matter;
2. Whether you are in receipt of a written mandate/power of
attorney; and
3. Whether the matter has indeed been finalized and if so,
what the outcome is. We await your feedback.”
11
[31] When no response was received, a follow -up letter was sent on 9
December 2016. The response, dated 12 December 2016 only came to Van der
Westhuizen’s attention on 26 May 2017. As a result of the fact that the letter did
not come to Van der Westhuizen’s attention, he followed the matter up on 9
January 2017. This elicited a response dated 16 May 2017 which read as
follows:
“As advised in our correspondence dated 12 December 2016 we
accepted an offer made by the Road Accident Fund in the amount
of R38 000.00 all inclusive. Please send us latest contact details
for the client so we may arrange payment.”
[32] Van der Westhuizen then provided the defendant with Campbell
Attorney’s trust account particulars. Thereafter he continued to ask for proof of
payment.
[33] On 22 May 2018 Campbell attorneys, on the instructions of the p laintiff,
instituted the current action. By that time neither the p laintiff nor Campbell
Attorneys have received payment. The lack of payment continued being a
dispute between Van der Westhuizen and the d efendant’s attorneys, Hogan
Lovells, right up to a pre-trial conference on 12 February 2019.
[34] On 30 March 2019 Hogan Lovells reported to Van der Westhuizen as
follows:
“With regard to payment of settlement amount, we have reminded
our client to do so and hopefully payment will be effected in due
course. As indicated previously, our client has mobility and
functional impairments and as such, we implore on you and your
client to be patient in this regard.”
12
[35] It subsequently appeared that the RAF had authorized payment to the
defendant on 22 July 2015. Van der Westhuizen did not have any direct
evidence as to when the d efendant had received the payment , b ut Campbell
Attorneys only received the payment from the d efendant the day after it had
lodged a complaint on behalf of the plaintiff with the LPC on 19 March 2019.
[36] Van der Westhuizen’s evidence in chief concluded with him confirming
having taken photographs of the p laintiff at his first consultation in Campbell
Attorneys’ offices and had supplied them to a medical practitioner , Dr Schutte
for purposes of assisting in the completion of a new RAF4 form.
[37] Cross-examination of Van der Westhuizen started out by debating the
differences between the RAF1 and RAF4 form s and the application of the
narrative test for purposes of determination of seriousness of injuries would be
explored in order for the plaintiff to qualify for general damage s when he had
already qualified automatically in terms of the predecessor to the Road Accident
Fund Act. Nothing much turns on this as the parties were ad idem that the
plaintiff had at all relevant times been entitled to claim non -patrimonial
damages.
[38] A lot of time in cross -examination was also spent on where Van der
Westhuizen would have obtained instructions or found source documents from
whence he had drafted the particulars of claim and, if he only had regard to the
hospital records, from where he would have obtained any indication of the
plaintiff’s broken teeth. Van der Westhuizen answered as best as he could
without his file notes that he referenced the p laintiff himself, the hospital
records and Dr Schutte’s report as his sources. What was also important of Van
der Westhuizen’s evidence and that extracted in cross- examination, was that
there were two sets of hospital records, one for the p laintiff and one relating to
his twin brother. The latter had been provided by the defendant.
13
[39] Dr Schutte testified on a virtual platform by agreement between the
parties. He was in private practice when he saw the plaintiff on 17 May 2016 at
his medical offices. These were in Kempton Park where he had practiced as a
General Practitioner for many years before moving t o Funda Medical in
Midrand. He had completed the RAF4 form before his move to Midrand.
[40] He explained the contents of the RAF4 form and the changes in
legislation which required a whole person impairment (WPI) determination
after 2008. He confirmed the contents of the report as correct except for a
discrepancy regarding the date of the accident. He also confirmed that the
plaintiff was first admitted to the Far East Rand Hospital and then transferred to
Pholosong on 30 May 2007. He explained the WPI summary and the references
to the AMA guidelines. He confirmed that he obtained information from the
plaintiff himself and from hospital records available to him at the time of
examination. The relevant portion of his report was read into the record and
read as follows:
“4.1 Describe the nature of the motor vehicle accident: Passenger in
vehicle, involved in accident, ambulance to Far East transferred to
Pholosong Hospital.
4.2 Medical treatment rendered from date of accident presen t: Treated
for fracture L wrist, radius, multiple lacerations, facial abrasions,
loss of teeth, POP applied.
4.3 Current symptoms and complaints: P ainful L wrist, forearm,
struggles with heavy objects, work, AODL, facial scarring,
disfigurement bothers him.
14
4.4 Diagnosis: L fracture, L wrist, radius, multiple symptoms, facial
disfigurement.
4.5 Conclusion regarding physical examination: Rom L wrist, forearm,
mild muscle atrophy, 4/5… power, facial disfigurement. ” (AODL
and Rom were explained as abbreviations for “activities of daily
living” and “range of movement” respectively).
[41] In cross-examination Dr Schutte was queried about why he had asked for
a radiology report. His medical reason was that the p laintiff was 13 years old at
the time of the accident and that was a fast growing age. With any fracture close
to the wrist and any inter- articular injury, one would see damage or
degeneration. Here there was a restricted range of motion or atrophy which
indicated a risk of future problems. The fracture may act as a baseline to
compare the condition thereof in future. The main reason was medically
indicated and in order to examine pathology on a next date. The suggestion was
that the radiology report indicated no abnormalities and Dr Schutte conceded
that the healing was successful and that there was no displacement. He also
indicated that although he had mentioned Far East Rand Hospital, the
documents were illegible and incomplete and only the Pho losong records were
legible. As the hospital records only included a reference to the mouth area but
did not refer to any loss of teeth, he obtained details therefrom from his
observation on the day and from the plaintiff.
[42] The above evidence concluded the plaintiff’s case.
[43] Ms Laurel Theron was the d efendant’s first witness. She had worked at
Selwyn Drobis Attorneys from January 2013 to July 2015. She was not legally
trained and worked as the office administrator. Her responsibilities were getting
documents from clients and other parties and liaising with the RAF and with
15
clients. She reported on all her activities to the d efendant. She was the one who
saw to the obtaining of accident reports and copies of identity documents. She
would also “organise” offers received from the RAF. This she would give to
the defendant to check . He would then either instruct her to accept the offer or
to “push forward”.
[44] When an offer was deemed to be acceptable by the d efendant, she would
call the client, inform him/her of the offer and t ell the client that she had
discussed this with the d efendant. She would then relay to the client that the
defendant thought the offer to be acceptable and when the client accepted the
offer she would revert back to the defendant.
[45] She could not recall any of the relevant documents in the present matter
but recall that mostly the d efendant would sign the documents. She had never
come across a case where a client had not accepted the offer on the advice of the
defendant.
[46] Ms Theron confirmed the list of telephone conversations referred to in
paragraph [22] above as one of the documents that she had compiled to record
calls to the RAF and to the plaintiff. All the notes on that list were completed in
her handwriting and her signature appears of the bottom thereof. She had also
made the following notes on a separate blank page:
“ Two sons in car → Pholosong →* cell →→→first year (UJ)”
[47] Ms Theron also confirmed a file update note which read as follows:
“CONCLUSION: AWAIT RESPONSE FROM FUND
UPDATE ON FILE REQUESTED - OFFER
SUMMONS DONE (2012/GVDL)
16
PHONED FUND, TO SOURCE HANDLER: n[… ]
DATE: 2015-06-04
CLAIMANT: M[… ], PI obo M
SIGNED OFF: LAUREL THERON (signature)”
[48] As to the actual offer and the acceptance thereof she didn’t know who
wrote her name on the acceptance document and who ostensibly signed on her
behalf but she confirmed that the offer was actually accepted on behalf of the
plaintiff.
[49] In cross-examination Ms Theron testified that the defendant was not often
at the office during 2015 as he was wheelchair bound. They mostly
communicated by phone. She also confirmed that the RAF had initially
repudiated the claim, incorrectly not having taken into account that the p laintiff
was a minor at the time. This was corrected in writing by a letter from the
defendant dated 25 May 2015 which read as follows:
“The aforementioned matter was repudiated by yourselves on the
grounds of the matter being lodged late, however it obviously did
not come to their attention that the claimant was a minor at the
time of the accident and has only just turned 21 this year, I have
therefore amended the RAF1 as per request and attach it hereto,
please we could receive an offer on this matter as it was wrongly
repudiated and needed to get it settled ASAP.
Kind regards.
17
Laurel Theron
(SELWYN DROBIS)”
[50] It was after receipt of this letter that the RAF made the offer which was
accepted as already explained.
[51] Counsel for the third party (the p laintiff’s father) also cross-examined Ms
Theron. This started by the explanation in the d efendant’s letter of 12
December 2016 to Van der Westhuizen that they had last spoken to the client in
May 2015. This was contrasted with Ms Theron’s notes who indicated that she
had spoken to their client on 8 July 2015. She could not explain the difference
but also could not identify the signature on the letter of 12 December 2016
which was sent after she had already left the defendant’s office. She was
confronted with the plaintiff’s father’s version that he never spoke to her about
the settlement of the claim and that his power of attorney to the d efendant had
lapsed when the plaintiff had reached the age of majority in 2012.
[52] By agreement between the parties, t he defendant testified by way of an
arranged virtual hearing of his evidence . He was wheelchair -bound but his
evidence was clear. He testified that he had been a practicing attorney for 42
years and only handled claims against the R AF (or its predecessor). He
practiced in Sandton and always had staff working for him , mostly
administrative and secretarial. He could not recall having had any other
attorneys in his office and has been a sole practitioner since 2008. He has been
suffering from multiple sclerosis for a number of years and was confined to a
wheelchair. He also had difficulty in using his hands and over the years his
physical condition had deteriorated but his memory remained good.
18
[53] He recognized the power of attorney provided to him by the p laintiff’s
father which gave him the obligation to execute a claim on behalf of the
plaintiff. He could not however recall having ever met the plaintiff or his father
and the signature at the bottom of the power of attorney might have been that of
Ms Theron. He was not present when it was signed.
[54] As to the customary process in his office, he testified that ordinarily, a
client would “come in”. Either he or a staff member would question the client
and would present him or her with a power of attorney and explain the contents
thereof to the client. Ms Theron was very experienced and he delegated the duty
of obtaining powers of attorney to her. He could not however remember who
his secretary was in 2008. He reiterated however that he would have
remembered the p laintiff and his father as he remembered most of the clients
that he had personally consulted with.
[55] When asked about his personal involvement in the matter, he
remembered having seen medico legal reports and having received the offer
from the R AF. He remembered having considered it and telling Ms Theron to
phone the client to say that he (the d efendant) thought the offer reasonable and
that the client should accept it. He did not make notes in the office file but his
secretary or admin staff did so. Despite this , he maintained that he was actively
involved in his practice except when he got tired during the day , when he would
leave early and go and have a rest.
[56] When asked on what basis he came to the conclusion that the offer was a
reasonable one he stated that “ those days that was a reasonable offer ”. He
testified that after having received the offer he looked at a few reports on similar
injuries contained in Quantum of Damages by Corbett & Buchanan (which he
referred to as the “ Bible”) and, based on this, he considered that the offer was
reasonable.
19
[57] When he was referred to documents indicating that the p laintiff was one
of a set of twins, he stated that it never came to his knowledge that there were
two sons and he did not know that at the time of the acceptance of the offer. He
was not aware of Ms Theron’s note in the file that there were two sons in the
motor vehicle that was involved in the accident.
[58] The defendant was asked whether he knew at the time of the acc eptance
of the offer that the plaintiff was a major and he said “ ja, I think I did”. He
could however not recall whether he told Ms Theron to also engage with the
plaintiff when she spoke to the father. He could not recall who wrote the letter
in December 2016 indicating that last contact with the client was in May 2015
but conceded that it does seem to be a mistake as the claim was only finalised in
July 2015.
[59] The defendant confirmed that the offer was accepted on his advice and
that his particulars and practice number was reflected on the acceptance of the
offer. Whoever may have signed the acceptance had been authorized by him at
the time although he could not remember who did so. If he was not in the office
he usually asked “a legally qualified colleague”.
[60] In respect of the issue of the p laintiff being one of a set of twins the
defenant was referred to admission documents of both M[…]1 M[…] and
M[…]2 M[…] . The d efendant responded that he thought the former was a
shortened name of the latter and that he did not know that they were twins.
[61] The defendant was also quizzed about why, if he had already received a
power of attorney in 2008, the claim was only lodged with the RAF in 2011.
His answer was that it was “possible” that “we” were waiting for certain things
or did not hear from the client.
20
[62] When asked about the delay from when Campbell A ttorneys had
approached him in 2016 to the eventual payout in March 2019, he stated that he
was waiting for instructions from his client before paying out. When doing so
he apparently still regarded the plaintiff’s father as the client.
[63] Following on the above, the d efendant was quizzed about the letter sent
by him on 25 May 2015 protesting against the RAF’s repudiation of the claim.
This is the letter wherein the d efendant stated that the p laintiff “has only just
turned 21 this year”. When confronted with the fact that, once the p laintiff had
reached the age of majority, the power of attorney obtained from his father fell
away, the defendant’s response to this anomaly in his conduct was that he was
“trying to think if he actually knew of this letter”. He conceded that he must
have been aware of it but could not recall it. He stated however that after he had
written to the RAF about the incorrect repudiation he asked for an amended
offer and sent an “amended MMF1 form” wherein the plaintiff was reflected as
the claimant.
[64] Pursuant to the above, the defendant was confronted with the fact that, at
the time of acceptance of the offer, the plaintiff and no longer his father, was the
actual client. When asked why the defendant then attempted to obtain
instructions from the father, he said “ I must be honest, I can’t remember what
happened at the time … we did it on the basis that we thought was correct ”.
[65] The defendant was also cross -examined by counsel for the p laintiff’s
father. When told that the p laintiff’s father would deny that anyone phoned him
about any settlement offer on 8 July 2015 and that he gave an instruction to
accept the offer, the d efendant simply denied these statements. He also
however, denied that he would not have been entitled to rely on any power of
attorney by the p laintiff’s father after the p laintiff had become a major on 6
February 2012.
21
[66] That concluded the evidence for the defendant.
[67] The plaintiff’s father testified that he was still employed at Ferro
Industrial Metals in Brakpan as he had been at the time of the accident. On the
day in question, he had received a call at his place of employment that his
children had been involved in an accident and taken to hospital. Upon his
arrival at the Far East Rand hospital he found the insured driver, being a family
friend and both twins. The p laintiff was lying in a ward on a bed with his left
wrist in a bandage and his face “damaged”. The plaintiff’s brother M[…]1 was
not as injured as the plaintiff although he had “bumped” his head. The next day
the plaintiff was transferred to Pho losong Hospital from where he was
discharged. He was approached by “people” who said they would “help” him to
claim. Through these “people” he had made contact with the defendant’s office
where he spoke to a lady and signed documents at her request.
[68] The plaintiff’s father confirmed his signature on the power of attorney
dated 24 October 2008. He was also subsequently told that there were
documents “short”. He was the one who had obtained the accident report ,
which he took to the attorneys. He spoke to the attorneys as and when he was
contacted for further documents such as copies of identity document s. He was ,
however not contacted about the R38 000.00 offer and knew nothing about it.
[69] The plaintiff’s father was taken through the various hospital records from
the Far East Rand Hospital and Pholosong Hospital relating to both the p laintiff
and his brother. These documents were however obtained by the d efendant’s
offices and it is not clear when they were received.
[70] Although the p laintiff’s father was adamant in his denial of the
acceptance of an offer, he was somewhat uncertain about when he last spoke to
22
the attorneys and when he last told his son that he had not heard from them for
“a long time”.
[71] That concluded the evidence for the third party.
Evaluation
[72] Before dealing with the issues regarding breach of contract and lack of a
mandate as pleaded by the plaintiff, it is apposite to state the following objective
facts as gleaned from the documents relating to the claim/s instituted by the
defendant against the RAF:
72.1 The first claim form lodged by the defendant’s office with the RAF
on 12 August 2011 indicated the plaintiff’s father as the claimant .
The plaintiff was in turn indicated as the injured person. Referring
to him, the form initially read “ passenger” but this was later
deleted and in manuscript the word “pedestrian” was added. In the
medical report which accompanied the form, the injured person
was however indicated as M […]1 M[…] with only lower limb
injuries, save for a soft tissue injury which resulted in a painful left
elbow and an abrasion of the left hand. The medical report was
completed on 19 January 2009 by a medical doctor at the Far East
Rand Hospital.
72.2 Summons had been issued by the defendant on 5 April 2012 and it
was served on the RAF on 13 April 2012. In the summons the
plaintiff’s father was indicated as acting on the plaintiff’s behalf in
his capacity as father and/or natural guardian. The injuries
sustained by the plaintiff were indicated in paragraph 6 of the
particulars as “injury to the left elbow … injury to the left hand ”.
Based on this, general damages of R80 000.00 were claimed.
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72.3 In the “amended” claim form submitted by the d efendant to the
RAF for purposes of settlement, the claimant was indicated therein
as being the plaintiff and he was described as having been a
passenger. No new medical report accompanied this claim form.
72.4 The only power of attorney ever issued to the defendant, was that
of the plaintiff’s father dated 24 October 2008. At the time that the
RAF’s offer was accepted, t he plaintiff had already become a
major on 6 February 2012 upon attaining the age of 18. Despite the
defendant erroneously referring to 21 years as age of majority in
his subsequent letter to the RAF, he had not obtained any power of
attorney from the plaintiff (at any age ) nor had he or his staff ever
consulted with the plaintiff.
[73] It is trite that an attorney who undertakes a mandate such as the one in
question is considered to hold himself out as possessing the necessary skills and
to discharge such mandate diligently. Such an attorney is liable for damages
occasioned to by his/her negligence in the discharge of the duties emanating
from such a mandate.
1 Once the defendant had accepted the power of attorney,
his mandate was, in the words of the document , to “ … investigate the
circumstances relating to [the] accident … proceed after the initial statutory
time period of 120 days from date of lodgment with issuing of summons against
the Road Accident Fund [and] to take the necessary action … to recover …
payment from the Road Accident Fund”.
[74] The acceptance of the mandate furthermore constituted an agreement
between the plaintiff’s father, acting on the plaintiff’s behalf, and the defendant
as their attorney. This obliged the defendant, either personally or through others
1 Mlenzana v Goodrick & Franklin 2012 (2) SA 433 (FB) at paras [96] to [101].
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under his care “… to exercise the knowledge, skill and diligence to be expected
of an average practicing attorney … ”.2
[75] It is quite clear from the evidence that the d efendant has breached the
terms of the abovementioned agreement and negligently discharged his
obligations as an attorney, in the following respects:
75.1 he failed to properly consult with the plaintiff and his father;
75.2 he failed to properly exercise care over the secretarial and
administrative staff dealing with the claim;
75.3 he failed to properly lodge a claim reflecting the p laintiff’s injuries
(and not that of his brother);
75.4 he failed to properly pursue a claim for the recovery of the
plaintiff’s loss when instituting action in the Magistrates Court. He
incorrectly reflected the plaintiff’s injuries in the particulars of
claim;
75.5 he clearly relied on these incorrect facts when considering the offer
made by the RAF, resulting in an under-settlement of the claim;
75.6 he failed to obtain a power of attorney from the p laintiff who had
attained age of majority prior to the purported settlement which fact
was or must have been known to the defendant.
[76] Even if the version of the defendant and that of Ms Theron we re to be
accepted, they erroneously relied on the telephonic acceptance of the offer by
2 See: Mazibuko v Singer 1979 (3) SA 258 W at 261C with reference to Mouton v Die Mynwerkers Unie 1977 (1)
SA 119 A at 142 to 143.
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the plaintiff’s father, who only did so by relying on the erroneously based
advice given by the defendant.
[77] The ineluctable conclusion is that the p laintiff has established that the
defendant has acted negligently and has breached his obligation s. On all
probabilities, the indications are that the actual amount of damages suffered by
the plaintiff in the motor vehicle accident exceed the amount of the purported
settlement. The defendant should be liable for the difference.
[78] The defendant cannot rely on the alleged consent given by the p laintiff’s
father at the time when the father was no longer entitled to do so. There was no
evidence of any authority given by the p laintiff to his father after he had
attained the age of majority to still represent him in the claim. The fact that the
defendant had accepted this to be the position, is evinced by his lodging of a
second claim form with the RAF wherein he reflected the plaintiff, as a major in
his own right, as the claimant. The claim for an indemnity against the third party
is therefore unsustainable. The d efendant has not, as initially pleaded in h is
third-party notice, provided any evidence that the mandate or power of attorney
obtained from the plaintiff’s father, was anything else than the written power of
attorney. The notice, insofar as it alleged a partly oral mandate, was not
therefore supported by any evidence and cannot be upheld.
Costs
[79] In the particulars of claim, the plaintiff simply claimed costs of suit. By
default, this would mean on a party and party scale. In the p laintiff’s futher plea
to the third-party notice, the dismissal of the claim against him was also claimed
simply with reference to costs (being party and party costs). In the heads of
argument submitted on behalf of the p laintiff, however, the argument was made
out that both these sets of costs should be on the scale as between attorney and
26
client. For this reliance was placed on SA Druggists v B eecham Group (Pty)
Ltd3.
[80] Punitive costs may be warranted when a party’s conduct in respect of the
claim itself and “throughout the procee dings” justify the award of such costs or
where it is awarded to display the disapproval of a court.
[81] It is clear that the d efendant has manifestly and at various times and in
various instances failed to uphold the honour and dignity of the attorneys’
profession to always diligently and scrupulously discharge a duty to a client. In
my view and in the exercise of the court’s discretion, such conduct justifies the
expression of a court’s disapproval by way of a punitive costs order.
[82] The same applies to the d efendant’s attempt to hold the p laintiff’s father
liable in the same circumstances. Whilst it is correct that the power of attorney
authorized the defendant to settle the case “in his own discretion ” (and without
even going into the issue of whether such a clause is morally justifiable or
contra bonos mores) , it cannot be gainsaid that such a discretion could only
properly have been exercised upon true and correct facts, diligently established.
The defendant has not done so. In fact, up to the point of delivery of closing
submissions, the defendant still maintained that he was “… mandated to accept
the offer without prior approval … ”. In my view this conduct also justifies the
reflection of disapproval by way of a punitive cost order.
Orders
[81] In the premises the following orders are made:
1. The defendant is declared to be liable for the difference between
whatever loss the plaintiff may prove to have suffered in respect of a
3 1987 (4) SA 876 T.
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claim against the Road Accident Fund pursuant to a motor vehicle
accident which had occurred on 30 May 2007, and the amount of
R30 000.00.
2. The determination of the quantum of the above loss is postponed sine
die.
3. The defendant’s claim against the third party is dismissed.
4. The defendant is ordered to pay the costs of the plaintiff and the
Third Party on the scale as between attorney and client. Counsel ’s
fees shall be taxable at scale B.
______________________
N DAVIS
Judge of the High Court
Gauteng Division, Pretoria
Date of Hearing: 17, 18 and 19 November 2025
Judgment delivered: 7 April 2026
APPEARANCES:
For the Plaintiff: Adv G Jacobs
Attorney for the Plaintiff: Campbell Attorneys, Pretoria
For the Defendant: Adv L Segeels-Ncube
Attorney for the Respondents: Eversheds Sutherland South-Africa Inc.,
Johannesburg
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c/o Pretoria
For the Third party: Adv H R du Toit
Attorney for the Third party: Van den Berg Attorneys, Pretoria