Claim for damages – Action against attorney
Within the modern day’s fast paced legal profession clients are more often than not faced with betrayals by the very professional individuals paid to look after their best interest. As a layman you, the public at large, needs to be educated on the subject of professional negligence as to prevent physical, financial, emotional and legal comprised victimisation.
Professional negligence relates largely to the failure by an attorney or legal professional to act with the competence reasonably expected of ordinary members of the attorney’s or legal profession.
An attorney or legal professional’s liability arises out of contract and his or her exact duty towards his or her client depends upon what he or she is employed to do. In the performance of his or her duty or mandate, an attorney or legal professional holds himself or herself out to his or her clients as possessing the adequate skill, knowledge and learning for the purpose of conducting all business that he or she undertakes. If, therefore, he or she causes loss of damage to his or her client owning to a lack of such knowledge as he or she ought to possess, or the care he or she out to exercise, he or she is guilty of negligence giving rise to an action for damages by his or her client against him or her.
Compiled by: Yolandi Vosloo (LL. B); source: https://www.lexisnexis.co.za/
Van As v Kotze JOL 41713 (NCK)
Case Number: 1646 / 2015
Judgment Date: 05 / 04 / 2019
Country: South Africa
Jurisdiction: High Court
Division: Northern Cape, Kimberley
Bench: CJ Olivier J
Keywords: Personal Injury/ Delict – Claim for damages – Action against attorney – Alleged breach of mandate
The plaintiff’s parents owned a farm which had been in the possession of the family for 78 years.
In 2009, the farm was sold to an iron ore company (“Sishen”). The sale agreement provided that the sellers could carry on occupying the farm for a period of five years in terms of a lease and the farm could be bought back after the completion of building of a railway line, but within a period of five years of the conclusion of the sale agreement. Notice of the intention to exercise the option would have to be given to Sishen at least three months prior to the expiry of the five year period from the date of the conclusion of the contract. The plan was for the option to be ceded to the plaintiff and for him to eventually exercise it, and to become the owner of the family farm.
The defendant, an attorney, drew up a cession agreement, which provided for the cession of the option to the plaintiff. The option lapsed late in March 2014, without having been exercised. The plaintiff eventually had to vacate the farm. In August 2015, he issued summons against the defendant, claiming damages in an amount of R5 618 545.90. His main cause of action was that the defendant failed to execute an instruction to take steps to ensure the exercise of the option. In the alternative, the plaintiff relied on a breach of an alleged duty of care on the part of the defendant. The quantum of the damages was settled, and only the liability of the defendant remained in dispute.
Held that the version of the plaintiff, as corroborated by his mother, appeared to have been rehearsed. The court could not reject the defendant’s averment that the cession agreement was signed by all parties concerned on 20 April 2012.
The plaintiff’s main cause of action was based on the breach of a mandate allegedly given to the defendant expressly. However, the evidence showed that there was no meeting of the minds regarding the alleged mandate, and no enforceable mandate agreement would have come into existence.
Imposing a duty of care on the defendant in the circumstances of this case would be unfair and unreasonable.
The plaintiff’s claims were dismissed with costs.