Du Toit Smuts and Mathewa Phosa Attorneys and Others v Sibanyoni (A504/17) [2019] ZAGPPHC 553 (18 October 2019)

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG DIVISION, PRETORIA

CASE NUMBER: A504/17

DATE: 18 October 2019

DU TOIT SMUTS AND MATTHEWS PHOSA ATTORNEYS

AND SEVEN OTHERS

Appellants

V

OKIE MESHACK MANDLA SIBANYONI

Respondent

JUDGMENT

MABUSE J (TEFFO J and ENGELBRECHT AJ concurring)

[1] This is an appeal against the whole of the judgment and the order granted by Mavundla J on 2 March 2016. Leave to appeal to the Full Court of this Division was granted on petition by the Supreme Court of Appeal (SCA) on 7 September 2017.

[2] On 2 March 2016 the Court a quo had made and granted the following order:

“17. In the result this Court finds and orders that the Defendants are jointly and severally liable, the one paying the other to be absolved, to pay any proven damages of the Plaintiff occasioned by the under settling of his claim against the Road Accident Fund arising from the injuries he sustained in the motor vehicle collision which occurred on 19 February 2018 along N4 highway in Ngodwana, Mpumalanga Province, together with costs of this action.”

[3] It is the said order that the Defendants challenge on numerous grounds set out in their application for leave to appeal which constitutes part of the papers before us. For purposes of brevity and convenience the parties herein will be referred to by the appellations they chose to call themselves in the Court a quo, the Appellants as the Defendants and the Respondent as the Plaintiff.

THE OVERVIEW

[4] On or about 19 February 2008 and at approximately 20h45 on the N4 highway near Ngodwana in the province of Mpumalanga, a collision took place between motor vehicles CPK 167 MP, there and then driven by a certain M E Morota, and SXP 129 MP, there and then driven by a certain AP Lebongo. The Plaintiff was a passenger in motor vehicle SXP 129 MP (the second insured motor vehicle) at all material times thereto. It was alleged by the Plaintiff that the said collision was caused by the exclusive negligent driving of the driver of motor vehicle CPK 167 MP (the first insured motor vehicle) in that

he was negligent in several respects set out in the Particulars of Claim (POC).

[5] As a consequence of the said collision the Plaintiff sustained certain bodily injuries, namely, a fracture of the left acetabulum, fracture of the left femur and other injuries as a result of which he was hospitalised for medical attention, was disabled and suffered pain and loss of amenities of life.

[6] On 4 March 2008 the Plaintiff then instructed the Defendants in writing by way of a Power of Attorney to claim damages arising from the said injuries from the Road Accident Fund (“the Fund”). A copy of the relevant power of attorney was attached to the Defendants’ plea. It gave the Appellant wide powers including, inter alia, the power “to negotiate the settlement and settle the aforementioned claim as my attorney in his sole and absolute discretion and to sign the relevant settlement agreements and discharge forms which may be required to settle the matter.”

[7] the Defendants processed the Plaintiff’s claim and lodged it with the Fund. On 25 May 2011 the Fund made, on a without prejudice basis, an offer to settle the Plaintiff’s claim in the sum of R103,500. The said offer was accompanied by the Acceptance of Offer of Settlement, which either the Plaintiff’s attorneys, as so authorised and empowered by the said written Power of Attorney or the Plaintiff himself, had to sign if they were satisfied with the offer of settlement. The Defendants did not accept the offer despite being at large to do so. Instead they called the Plaintiff

into their offices, discussed the offer with him and advised him that it was too little and persuaded him to attend a medico legal

examination so that the amount could be increased. He agreed. They made proper arrangements with an orthopaedic surgeon for such

examination. He gave them an appointment date. The Plaintiff left.

[8] In the meantime on 16 April 2011 and in the period during which the Defendants were pursuing his claim against the Fund, the Plaintiff instructed another firm of attorneys, Sekonya Attorneys, to pursue the same claim against the Fund. This is clear from the written special Power of Attorney dated 16 April 2011. On the same date, the Plaintiff signed, before Sekonya Attorneys, a Termination of Mandate, in which he stated that:

“I, the undersigned,

OKIE MESHACK SIBANYONI,

do hereby wish to confirm that I have irrevocably instructed Sekonya Attorneys to act on my behalf regarding a motor vehicle collision in which I was involved on 19 February 2008.

I further wish to confirm that I did not give Smuts Du Toit Attorneys, and if I did give the said attorneys mandate, I hereby cancel it ….”

A copy of the said Termination of Mandate was sent to the Defendants by the said Attorneys on 29 June 2011 under cover of a letter of the same date.

[9] On 2 June 2011 the Plaintiff signed the Acceptance of Offer of Settlement. Thereby he signified unequivocally his acceptance of the offer of settlement dated 25 May 2011 made by the Fund. On the same date the Defendants forwarded the Plaintiff’s Acceptance of the Offer of Settlement to the Fund. I will deal with the circumstances under which the offer by the Fund was accepted by the Plaintiff when I deal with the evidence of Scheepers.

[10] During June 2011, the Defendants received a sum of R103,500.00 in full and final settlement of the Plaintiff’s claim from the Fund. After the deduction of their fees of R23,500 from the said sum of R103,500.00, the balance of R80,000.00 was paid to the Plaintiff. It is of crucial importance to point out at this stage that there is no indication that when he received payment of the said amount of R80,000.00, the Plaintiff complained about the insufficiency of the amount offered or the amount paid to him. The circumstances under which the Plaintiff accepted the said payment will be set out in due course.

[11] On 29 June 2011 the Defendants received a letter from Sekonya Attorneys. In this letter Sekonya Attorneys sent a copy of the Termination of Mandate. The letter informed the Defendants that the Plaintiff had instructed them to pursue his claim against the Fund. On 5 July 2011 the Defendants responded to the letter and advised Sekonya Attorneys that they had already finalised the Plaintiff’s claim against the Fund and that they had already paid him his full amount.

[12] On 15 June 2012, Sekonya Attorneys demanded from the Defendants and on behalf of the Plaintiff payment of the sum of R1,550,000.00. The said claim was predicated on professional conduct of the Defendants. In the said letter the following allegations, inter alia, were made against the Defendants:

“9 Our client has become aware that you under settled his claim when he consulted with us in April 2011. We are instructed that in settling the matter with the Road Accident Fund in the manner in which you did, you under settled client’s claim in respect of quantum of the claim.

10 With regards to quantum, you failed to properly investigate the claim of loss of earnings, you failed to have client examined by an orthopaedic surgeon, you failed to have client examined by a neuro-surgeon, you failed to have client examined by a neuro-psychologist and occupational therapist as well as industrial psychologist.

11 Having regard to your failure as set out above, you did not institute a claim for future hospital and medical expenses, future loss of earnings and settled general damages aspect thereof in an amount of significantly less than the actual value.”

Payment of a further amount of R50,000.00 in respect of interest was also demanded in the said letter from the Defendants.

[13] The Defendants did not pay the amounts claimed as a consequence of which on 12 June 2012 Sekonya Attorneys caused summons to be issued against eight defendants, among them the Defendants, and claimed from them payment of the sum of R1,411,130.14. The claim that had been initiated by the said attorneys against the defendant was predicated on negligence. It was alleged in the Particulars of Claim (“POC”) that in many respects the Defendants had breached the mandate that the Plaintiff had given to them. In their plea, the Defendants denied the allegations of negligence and of breach of mandate levelled against them in the POC.

THE EVIDENCE

[14] Then on 17 March 2017 the matter went to trial. Two witnesses testified for the Defendants after which the Defendants closed their case. The Plaintiff did not testify although he was present at court and called no witness to testify on his behalf.

[15] The first of such two witnesses was a certain Joshua Joubert Scheepers (“Mr Scheepers”). Mr Scheepers was an attorney and a member of the Defendants. He testified that he handled, among others, the Plaintiff’s third party claim against the Fund. According to him, on 4 March 2008 the Plaintiff signed a Power of Attorney in which he instructed the Defendants to prosecute or pursue his third party claim. He did all that he was required to do and lodged the claim with the Fund per their letter dated 24 February 2009.

[16] Then the Fund did not immediately respond as a consequence of which the Defendants sent several reminders to the Fund. On 25 May 2011, the Fund sent its response to the Defendants. In that response the Fund had made an offer of settlement in respect of the Plaintiff’s claim. I have already referred to the said offer somewhere supra.

[17] He testified furthermore that on 25 May 2011, after receiving the offer of settlement from the Fund he caused the Plaintiff to be called into his office with the sole purpose of discussing the offer with him and obtaining his reaction to it. On 31 May 2011 the Plaintiff came to see him. He had consultation with him over the offer on the table. He asked him how his injuries were. The Plaintiff told him that he was still struggling and furthermore that he did not work at that moment. It is not clear whether he was struggling financially or in terms of health. He showed him the offer and told him that in terms of their fee agreement, of the sum of R100,000.00 the Plaintiff would only be entitled to, and would

be paid, R80,000.00. He advised him though that the offer was too little and that he should not accept it. He proposed that he, the Plaintiff, should go for medico-legal examination. At first the Plaintiff did not want to attend the medico-legal

examination. He insisted on accepting the offer but the witness persuaded him to go for medico-legal examination. This was obviously for the purposes of increasing the amount of claim. One can only assume that, having told him that the offer was too little and having dissuaded him from accepting it, he must have told him that the offer would be increased if he, the Plaintiff, went for a medico-legal examination. A report from the expert would have set out an amount that would have increased the amount for compensation.

[18] I agree with Mr Labuschagne’s submission that an attorney should submit all settlement offers to his client. In this regard he found support in Goldschmidt and Another v. Folb and Another 1974(3) SA 778 T. In this matter the Court had to decide an issue involving review of taxation. The crucial issue there was whether the costs of consulting on a settlement offer which had been rejected, were recoverable as party and party costs. Botha J, as he then was, had the following to say:

“In my view an attorney would be failing in his duty to his client if he did not consult with his client on a proposal for a settlement coming from the other side, before answering such proposal; his answer to the proposal (rejection) appears to me to be a reasonably necessary and proper step in connection with the conduct of the action, and the preceding consultation with his client stands on the same footing.”

[19] We are therefore satisfied that Mr Scheepers had properly and professionally consulted with the Plaintiff and had put him in a position where he could make an informed decision. The Court a quo incorrectly found that the Plaintiff was not put in a position to make an informed decision as to the true value of his claim, when he was informed of the offer. It was not necessary that Mr Scheepers should have forced his advice down the Plaintiff’s throat. It was enough if he had advised him on the offer.

[20] May I pause here to point out that it does not matter how much compensation a party claims from the Fund in his RAF1 form or Claim Form. What is of paramount importance is that a claimant must claim a certain amount on his claim form and even more importantly, his claim must be lodged with the Fund before the prescriptive period. The amount claimed on the Claim Form may be increased from time to time as and when reports of experts are received and the situation changes. Where expert reports are required, the duty to obtain such reports falls squarely upon the shoulders of the attorney, provided he discusses the issue with his client so that his client understands the situation and makes an informed decision upon which his instructions to obtain such reports are predicated or he uses the power conferred upon him in the Power of Attorney to take his client for medico-legal examination.

[21] He convinced the Plaintiff to attend a medico-legal examination and appraised him of the reasons thereof. The Plaintiff accordingly understood the explanation and allowed the witness to make the necessary arrangements for such an examination. So he advised the Plaintiff that he would go for the said examination.

[22] On the same date he instructed his secretary, a certain Ms Annatjie van Eeden, to make an appointment for the Plaintiff with a Dr AWD Kean (“Dr Kean”), an orthopaedic surgeon, in Nelspruit. The said Dr Kean gave the secretary the appointment of 11 July 2011.

[23] On 2 June 2011 the Plaintiff came back to the offices of the Defendants. He insisted that the appointment with Dr Kean should be cancelled. He told a certain Mr David Nkosi (“Mr Nkosi”), an interpreter attached to the office of the Defendants that he was prepared to accept the offer because he was desperately in need of money. On 2 June 2011, when he had called at the Defendant’s office, he spoke to the said Mr Nkosi. The Plaintiff, accordingly, instructed his attorneys to cancel the appointment they had arranged with Dr Kean and more importantly instructed them that he was prepared to accept the offer of settlement by the Fund.

[24] The mere fact that he was prepared to accept the offer means that he had been fully informed how much it was; how much of it would be paid to him and had assessed its sufficiency for his purposes and was satisfied that it was enough for his needs. He was prepared to accept it. He was not prepared to wait longer for the appointment. So on 2 June 2011, he himself signed the Release or accepted the Offer of Settlement made by the Fund. The acceptance of his offer resulted from his own conduct. Although he had authorised the Defendants to settle the matter in any way they deemed fit, he was the one who accepted the offer.

[25] The witness sent the acceptance of the offer of settlement back to the Fund in a letter dated 2 June 2011. The Fund paid the sum of R103,500.00 to the Defendants, who in turn paid the Plaintiff R80,000.00 while they retained the rest as their fees.

[26] The Plaintiff never advised him that he had consulted with, and had instructed, another attorney in April 2011. He also never advised the Defendants that he had terminated the Defendants’ mandate and had instructed another attorney to deal with his third party claim. But after receiving the letter of termination of mandate he, Mr Scheepers, informed Sekonya Attorneys that the Defendants had finalised the Plaintiff’s claim against the Fund and that the Plaintiff had been paid out.

[27] The witness:

27.1 testified that he had obtained the Plaintiff’s clinical records from Rob Ferreira Hospital;

27.2 denied that the Defendants breached the mandate given to them in any way;

27.3 denied that the Defendants had failed to obtain the Plaintiff’s instructions with regards to the offer of settlement made by the Fund. He was adamant that he had a thorough consultation regarding the said offer with the Plaintiff and that he had advised the Plaintiff not to accept it;

27.4 denied that the Defendants accepted the offer of settlement, let alone without proper or adequate instructions from the Plaintiff. He testified that the offer was accepted by the Plaintiff much against his advice. This is clear from the signature of the Plaintiff himself on the said acceptance of the offer. Strictly speaking the offer of settlement was accepted by the Plaintiff and not by the Defendants. Accordingly, any allegation that the offer of settlement was accepted by the Appellant is flawed. The offer of settlement was only accepted by the person who signed where it is written “claimant/representative”. The signature that appeared there is of the claimant, in other words, the Plaintiff himself. It is therefore unfounded to accuse the Defendants of having under settled the Plaintiff’s claim against the Fund. In my view, and on this point alone the appeal must succeed.

[28] Mr Nkosi was the Defendants’ second witness. His evidence supported the evidence of Mr Scheepers in all material respects. Therefore, I do not deem it necessary to repeat it. Mr Nkosi testified that a few days after 31 May 2011, the Plaintiff first called him and told him that he was prepared to accept the offer of settlement. This evidence has not been disputed. Mr Nkosi requested him to come to the office and inform a lawyer that he wanted to accept the offer. The Plaintiff came to the office. Mr Nkosi drew his file and gave it to Mr Scheepers. The Plaintiff then said that it was irrelevant whether he saw Mr Scheepers or not or whether or not they talked telephonically. He made it clear firstly, that he did not want to go for the medico-legal assessment and secondly, that he wanted to buy a bakkie.

[29] He testified furthermore that he spoke to the Plaintiff and told him that the Attorney, I think here he referred to Mr Scheepers, thought that he might have sustained severe injuries and that he could get better compensation. According to his further testimony the Plaintiff told him that he did not want better compensation and that he just wanted to accept the offer; he did not want to attend any medico-legal assessment; he wanted the money so that he could buy a bakkie that he could use to sell vegetables.

[30] At the end of the evidence of Mr Nkosi, the Defendants indicated that they had no more witnesses to call. The Plaintiff’s counsel, Mr Uys, subsequently closed the Plaintiff’s case without testimony.

[31] Although the Court a quo had ruled in terms of Rule 33(4) of the Uniform Rules of Court that it would proceed to deal with issues relating to paragraph 20 of the Particulars of Claim (“POC”) in its entirety and the Defendant’s plea in paragraphs 8, 8.1 to 8.8, it could not, in my view, deal with paragraph 20 of the POC without referring to paragraph 19 thereof. In this Appeal we will deal with paragraph 19 because it is intrinsically linked to paragraph 20 of the POC.

[32] The issues that the Court a quo should have dealt with were firstly, whether the Defendants settled the Plaintiff’s claim or advised the Plaintiff to do so, and secondly, whether the Defendants breached the mandate given to them by the Plaintiff. The other question that the Court had to decide was whether an attorney who advises his client that the offer of settlement was too little and who takes practical steps to increase the amount of the offer should be held personally liable if the client himself under settles his claim. In my view the issue that the Court a quo should have dealt with was, considering the allegations made against the Defendants in the POC and denied vehemently by the Defendants in their plea, whether the Defendants settled the Plaintiff’s claim against the Fund or not. The Court a quo wrongly, in my view, dealt with the matter on the assumption that the Defendants or Mr Scheepers, settled the Plaintiff’s claim. It is for that reason that the Court a quo referred to the cases that dealt with the under settlement of third party claims.

[33] It is important that where a Court identifies the issues to be decided, it should confine itself to the allegations in the papers. The Court should distil the core allegations made by one party against the other, in other words, the core allegations made by party A against party B and find out in the plea what the reaction of party B to the allegations made by party A against it is. Those are the allegations that constitute the dispute that the Court is called upon to resolve. For instance, in this case, the allegations that were levelled against the Defendants by the Plaintiff in his POC were that the Defendants had settled the issue of liability and the issue of quantum, and that the Defendants had breached the mandate given to them by the Plaintiff in various respects. In their plea the Defendants denied these allegations. They alleged and testified that it was the Plaintiff who settled his own claim. The Court a quo should have found that it had to identify the person who under settled the Plaintiff’s claim and whether or not the Defendants had breached the mandate that had been given to them by the Plaintiff. I will deal with these aspects later.

[34] The Court a quo correctly pointed out that the Plaintiff’s claim was under settled. This was common cause between the parties. It continued and stated furthermore that the defence proffered was that the Plaintiff had instructed them to settle and to accept the offer put on the table by the Fund. This was an error for Mr Scheepers did not testify that the Plaintiff had instructed them

to settle his claim. The Plaintiff could not instruct them as neither Mr Scheepers nor a member of the Defendants was present when the Plaintiff settled his claim.

[35] There is a crucial issue that was not properly investigated by the Court a quo and upon which the success or failure of the Plaintiff’s claim was predicated. In the POC at paragraph 9.1 the allegation was made that:

“On or about November 2011 the Defendant settled the issue of liability and the issue of quantum on the basis that the Road Accident Fund would pay to the Plaintiff the amount of R103,500.00 on the basis of concession of the merits.”

Further allegations were made in paragraph 20 of the POC by the Plaintiff against the Defendant that:

“20. In breach of the mandate given to the Defendant by the Plaintiff:

20.1 the Defendants failed to investigate the Plaintiff’s claim properly, inter alia;

20.6 failed to obtained (sic) the Plaintiff’s instructions as regard to the offer of settlement made by the Road Accident Fund;

20.7 accepted the offer of settlement aforesaid without proper or adequate instructions from the Plaintiff;

20.8 settled the Plaintiff’s claim for the amount far less than the proper or reasonable value of the Plaintiff’s claim;

20.9 generally failed to act in the manner which a responsible attorney in the Defendant’s position would and should have done so.”

[36] The Defendants pleaded as follows to the said allegations contained in paragraphs 19 and 20 of the Plaintiff’s POC:

“8.4 Notwithstanding the aforegoing, the Plaintiff on 2 June 2011 attended at the First Defendant’s offices, insisted on accepting the Fund’s offer, and consequently signed the acceptance as per Annexure “C” hereto, being a copy of the Fund’s offer and acceptance form included therein as signed by the Plaintiff on 2 June 2011.

8.5 Neither the First nor the Second Defendant, nor any of the other Defendants, had the right to prevent the Plaintiff from acting as aforesaid, in the premises on June 2011 ….”

In terms of our law he who asserts proves and not he who denies, for a denial cannot be proved. This principle of our law was clearly set out in Pillay v Krishna and Another 1946 AD 946 at p. 952, and here I wish to quote copiously from the said authority to demonstrate the duty that lay on the Plaintiff and the fact that he failed to discharge the onus that lay on him at the trial of the matter:

“But there is a third rule, which Voet states in the next section as follows:

He who asserts, proves and not he who denies, since a denial of a fact cannot naturally be proved provided that it is a fact that is denied and that denial is absolute. This rule is likewise to be found in a number of places in the Corpus Iurus: I again give only one version: ‘ei incubit probatio qui dicit, non qui negat’ (D: 22.3.2). The onus is on the person who alleges something and not on his opponent who merely denies it. This rule is stated by Matthews, de Prob. (8.1) to be lippis at tonsoribus nota, that is to say, known to everyone, but in fact if application is, as pointed out by Best (10th Ed., Sec.270), a subject of much misconception. He particularly remarks that it is not universal, but that “in the ordinary course of things” the burden of prove is not cast on the party who merely denies an assertion.”

[37] The incident of burden of prove decides which party in any litigation proceedings should fail. In my view, the Plaintiff has failed to prove that:

37.1 the Defendants settled the issue of liability and the issue of quantum.

37.2 the Defendants or any member of the Defendants failed to obtain the Plaintiff’s instructions as regards the offer of settlement;

37.3 the defendants or any member of the Defendants accepted the Fund’s offer of settlement, let alone without proper or adequate instructions from the Plaintiff;

37.4 the Defendants or any member of the Defendants accepted the offer of settlement.

The Plaintiff did not contradict Mr Nkosi’s evidence that when he returned on 2 June 2011 he, the Plaintiff, had made up his mind that he did not want the “better compensation” but was determined, and much against the advice of Mr Scheepers, out of sheer desperation, to accept the offer. In my view, no fault can be laid at the feet of the Defendants. There is no iota of evidence that Mr Scheepers:

37.4.1 was present, or communicated with the Plaintiff, when he came to sign the offer; or

37.4.2 had in any manner whatsoever influenced the Plaintiff’s decision to accept the offer.

With regard to the argument that the Plaintiff has failed to prove any negligence on the part of the Defendant, Mr Labuschagne referred this Court to the case of Steyn N.O. v Ronald Bobroff and Partners 2013 (2) SA 311 (SCA) at paragraph [27] where Bosielo JA, as he then was, stated the following:

“In the absence of clear evidence to prove what a reasonable attorney in the position of the respondent, faced with a similar case under similar circumstances, would have done, I am unable to conclude that the respondent failed to act with the necessary care, skill and diligence which would ordinarily be expected from a reasonable attorney. It is axiomatic that the conduct of a reasonable attorney concerning a case that he/she handles will primarily be determined, amongst others, by the facts and circumstances of the case, the investigations which had to be done, the nature and extent of the injuries suffered and the complexity of the matter. It would in my view be unwise to attempt to determine the conduct of a reasonable attorney in vacuo.”

In the circumstances I am compelled to conclude that, much against the advices of Mr Scheepers, on 2 June 2011 the Plaintiff settled his claim against the Fund by accepting the offer that the Fund had made. A claim of this nature is in the scheme of things settled by the person who accepts the offer. The offer made by the Fund is accepted by the person who signs the Release or Discharge that constitutes part of the Offer of Settlement.

[38] Taking into account the fact that the last time that Mr Scheepers consulted with the Plaintiff was on 31 May 2011, I find nothing wrong in the conduct of the Defendants. It is the conduct of the Plaintiff that is reprehensible. The Court a quo found that the fact that the Plaintiff did not testify was of no great moment, regard being had to the concession already made by Mr Scheepers that the claim was under settled. It would appear that the Court a quo assumed that an admission of under settlement by Mr Scheepers meant that the Defendants had failed to discharge their mandate. Yes, the claim was under settled but the next question is by whom? The Court a quo failed to investigate properly the circumstances under which the claim had been settled. If it had done so it would have found differently.

[39] The fact that the Plaintiff did not testify did not, as the Court a quo found, work in the favour of the Plaintiff. The Court a quo should have found, as I hereby do, that the Defendants had raised a valid defence which required the Plaintiff to put his version before Court. As a result of such failure to testify, the Defendants’ evidence stood unchallenged. In our view,

the Court a quo erred in not making an adverse finding against the Plaintiff’s failure to testify.

[40] In paragraph 14 of the judgment the Court a quo stated that:

“In casu, the Defendants contend that they settled the claim as a result at the instance of the Plaintiff.”

No evidence exists of any admission by the Defendants that they settled the Plaintiff’s claim. Their unwavering version was always that the Plaintiff settled his own claim. Accordingly, the Court a quo had no basis in law or fact to make such a statement.

[41] There was another statement by the court a quo that:

“The failure to obtained (sic) sufficient evidence for almost three years, is telling against Scheepers. The Plaintiff was not placed in a position to make an informed decision as to the value of his claim, when he was informed of the offer on the table.”

Mr Scheepers made it very clear that he first needed to obtain medical reports. Without expert reports a legal practitioner is incapable of quantifying his client’s claim. No other version was placed before the Court a quo.

[42] I have already pointed out somewhere supra that the amount of claim can always be amended where circumstances change and where it becomes necessary and when expert reports become available. But it is something different if a party overrides his mandate to his attorneys. All that Mr Scheepers had to do was to have a thorough consultation with the Plaintiff over the offer received; to advise him whether in his view the offer was reasonable and acceptable; and if he was of the view that it was on the lower side, to advise him accordingly and to give him advice as to how the offer could be increased. I agree with Mr Labuschagne’s argument as set out in his heads of argument that an attorney has a duty to warn his client of the risks. I am satisfied that Mr Scheepers executed his duty to warn the Plaintiff of the risks involved in accepting the offer that was on the lower side to perfection. In support of his argument Mr Labuschagne found support in Fennel v Johns Eliot [2008] PNLR12 (QB) Northern Ireland, where Gillen J at par [48] had the following to say:

“A solicitor has the duty to advise on the legal hazards of a transaction but no more.” The said Judge went on to quote Dutfield v Gilbert H Stephens and Sons (1988) 18 Fam Law 473 in which Lincoln J, as he then was, said that:

“It was the duty of the solicitor to inform and advise, ensuring that the information advised was understood by the client. It was not part of his duty to force his advice on the client.”

The Court a quo should have found that Mr Scheepers had discharged his duty as an attorney. It erred in finding that he had breached his

mandate. The Plaintiff acted contrary to the mandate he had given to his attorneys:

“To negotiate the settlement and settle the aforementioned claim as my attorney in his sole and absolute discretion and to sign the relevant settlement agreements and discharge forms which may be required to settle the matter.”

It must be borne in mind that the file and its contents belong to the clients, in casu, the Plaintiff. The Power of Attorney that a client gives to an attorney is not irrevocable. The Power of Attorney is always subject to the overriding authority of a client. A client can always revoke or cancel or override the instructions he has given to his attorney. He retains always the power to act for his own account even if it means overlooking or overriding his attorney’s legal advice or power. He cannot be faulted for taking control of his matter if he deems it fit to do so. When the client acts outside the scope of his attorney’s advice, to which he is entitled to do, such conduct should not be imputed to his attorney. His attorney should not be blamed for any misfortune that may befall the client because of the client’s conduct. The following expression is apt in these circumstances. The Plaintiff must “lie on the bed one has made.”

[43] There is no merit in the rest of the allegations that the Defendants breached the mandate that had been given to them by the Plaintiff. What is of paramount importance was that:

43.1 the Plaintiff’s claim was lodged by the Defendants timeously with the Fund;

43.2 the Defendants had taken initial steps to ask for expert reports, for instance he had secured an appointment with Dr Kean, an orthopaedic surgeon, for a medico legal examination. This evidence was not disputed. In my view, it renders nugatory the allegation by the Plaintiff that the Defendants failed to have the Plaintiff examined by specialists or doctors and or medical experts for purposes of obtaining medico-legal reports in order to substantiate the Plaintiff’s claim.

43.3 there was still time to obtain further reports;

43.4 it is in fact the Plaintiff who stopped the Defendants in their tracks from effectively executing the mandate he had given them. Therefore, the allegation that at all material times the Defendants failed to execute the duty of care to the Plaintiff or failed to act with reasonable skills in rendering their professional services is baseless. We find that the Defendants executed their professional duty to the Plaintiff to perfection.

[44] Therefore the allegations made by the Plaintiff that the Defendants failed to have him examined by specialists or doctors or medical experts for purposes of obtaining medico-legal reports in substantiation of his claim are therefore unmeritorious and unfounded.

[45] In paragraph [11] of the judgment, the Court a quo stated that:

“In casu, it is not in dispute that the claim was under settled. The defence preferred by the Defendants was that the Plaintiff

instructed them to settle and accepted (sic) the offer put on the table by the Road Accident Fund.”

This statement, in our view, is not based on the evidence:

45.1 firstly, in his opening address where he set out the Defendants’ case, Mr Labuschagne told the Court that:

“Now M’Lord, the evidence that the Defendants will present is that an offer was received in approximately May 2011 and it was accepted by the plaintiff against advice on the 2nd of June 2011 and he received a cheque on the 26th of June 2011.” (page 68 lines 8-21 volume 2);

45.2 secondly, he told the Court, still in his opening statement, that:

“Now your Lordship will hear in the course of the evidence that the defendant having advised the plaintiff not to accept the settlement

on 31 May persuaded him to go for an expert investigation with an orthopaedic surgeon a doctor Kean and thereafter the appointment was made and it would have been for the 11th of July. Three days later the plaintiff arrived at the defendants’ offices and insisted on signing the acceptance and did so.”

45.3 thirdly, he told the Court that:

“M’Lord obviously on the facts that we have put to you it was the plaintiff who accepted the offer against advice it was not the defendant who settled the matter on his behalf.”

45.4 “M’Lord the evidence that will be presented will be that the plaintiff is a fruit vendor and he wanted a bakkie and that seems to be the reason why he was insistent on accepting the offer and he subsequently bought the bakkie.”

45.5 During his entire evidence-in-chief Mr Scheepers denied that the Plaintiff had instructed them to settle the claim. He was adamant that it was settled by the Plaintiff and not the Defendants.

[46] In conclusion I find that an attorney who advises his client not to accept an inadequate offer of settlement, may not be held responsible if the client, having made an informed decision, accepts such inadequate offer of settlement, much against the advices of the attorney. Furthermore, I find that the Plaintiff failed to prove his case against the Defendants in the Court a quo. His claim therefore fell to be dismissed with costs.

THERFORE, we make the following Order:

[1] The appeal is upheld.

[2] The order of the Court a quo is hereby set aside and in its place is substituted the following:

“The Plaintiff’s claim is dismissed, with costs.”

PM MABUSE

JUDGE OF THE HIGH COURT

MJ TEFFO

N ENGELBRECHT

ACTING JUDGE OF THE HIGH COURT

Appearances:

Counsel for the Appellants: Adv EC Labuschagne (SC)

Instructed by:

Savage Jooste & Adams

Counsel for the Plaintiff: Attorney IF Barkhuizen

Instructed by:

Sekonya Attorneys

Dates heard:

9 October 2019

Date of Judgment:

18 October 2019