Nienaber N.O. and Others v Nelson Attorneys and Another (302/2017) [2022] ZAECQBHC 46 (22 November 2022)

Nienaber N.O. and Others v Nelson Attorneys and Another (302/2017) [2022] ZAECQBHC 46 (22 November 2022)

The court found that although it was convinced of the correctness of its previous judgment and order dismissing the plaintiffs' claims, there exists a reasonable prospect that another court may reach a different conclusion, particularly regarding the scope of the duty of care and the issue of negligence. The court acknowledged that the expert evidence of Daryl Burman, which was previously rejected, may be considered differently by another court if the scope of the duty of care is broadened. Accordingly, leave to appeal to the full court is granted against the whole of the judgment and order, with costs of the application to be costs in the appeal.

Citation
[2022] ZAECQBHC 46
Parties
Applicant: Linda Nienaber N.O.; Applicant: Antonius Gerhardus van den Berg; Applicant: Margie van den Berg; Respondent: Nelson Attorneys; Respondent: Pierre Kitching Attorneys
Court
Eastern Cape High Court, Gqeberha
Jurisdiction
South Africa
Judgment Date
22 November 2022
Case Number
302/2017
Procedural Posture
Leave to Appeal / Application for Leave to Appeal to the Full Court After Dismissal of Plaintiffs' Claims
Outcome
Leave to appeal to the full court is granted to the first, second, and third plaintiffs against the whole of the judgment and order delivered on 18 January 2022.
Judges
Rugunanan
Legal Topics
Duty of Care, Negligence, Wrongfulness, Leave to Appeal, Expert Evidence
Delict Civil Procedure Duty of Care Negligence Wrongfulness Leave to Appeal Expert Evidence

Case Brief

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Parties

Linda Nienaber N.O.

Applicant

Antonius Gerhardus van den Berg

Applicant

Margie van den Berg

Applicant

Nelson Attorneys

Respondent

Pierre Kitching Attorneys

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal to the Full Court After Dismissal of Plaintiffs' Claims

Legal Issues

  1. 1 Whether the court erred in its inquiry into wrongfulness as an element of delictual liability.
  2. 2 Whether the scope of the duty of care was properly determined and whether its broadened scope was adequately considered.
  3. 3 Whether the expert evidence of conveyancer Daryl Burman was wrongly rejected.

Ratio Decidendi

The court found that although it was convinced of the correctness of its previous judgment and order dismissing the plaintiffs' claims, there exists a reasonable prospect that another court may reach a different conclusion, particularly regarding the scope of the duty of care and the issue of negligence. The court acknowledged that the expert evidence of Daryl Burman, which was previously rejected, may be considered differently by another court if the scope of the duty of care is broadened. Accordingly, leave to appeal to the full court is granted against the whole of the judgment and order, with costs of the application to be costs in the appeal.

Court Disposition

Leave to appeal to the full court is granted to the first, second, and third plaintiffs against the whole of the judgment and order delivered on 18 January 2022.

Orders

  • The first, second and third plaintiffs are granted leave to appeal to the full court of this division against the whole of the judgment and order delivered on 18 January 2022.
  • The costs of this application shall be costs in the appeal.