Daniels v Klaasen; Keith Sheldon Attorneys v Daniels (A306/2018) [2019] ZAWCHC 99 (14 August 2019)
This case involves the possible liability of one or both of two attorneys for damage caused to a claimant who lodged a claim with the Road Accident Fund as a result of the death of her husband which was caused by a motor vehicle collision that occurred on 30 October 2003.Her claim prescribed in October 2008.The consequent inability to successfully claim against the Road Accident Fund was attributable to the legal assistance which she received during this period.
The crisp question for determination is whether either of the attorneys whose firms assisted her legally during the relevant period are liable for damages arising from this prescription of her claim.
Shortly after the passing of her husband, Daniels approached a firm of attorneys under the control of Mr David Nasson in order to prosecute her claim against the Road Accident Fund.On arrival at the offices of attorney Nasson she met Mr Richard Matthee.Mr Matthee was not an attorney but it appears that he was employed by Mr Nasson as general clerk.When Daniels arrived at Nasson’s offices, another employee, Mr Martin Green, introduced her to Matthee and asked Matthee to complete the necessary third party forms to prosecute a MVA claim.Matthee duly informed Daniels that he would institute the claim against the Road Accident Fund.On 10 March 2004, Daniels signed a special power of attorney appointing Nasson to represent her in her claim against the Road Accident Fund.At this time, Klaasen was employed by Nasson and he operated his Ceres office.
During 2004 Nasson was suspended by the Law Society from continuing to practice. Discussions then took place between the then director at the Law Society and Klaasen, as a result of which the latter was requested to take over and attend to the files which previously had been dealt with by Nasson or others in his office. From the available evidence there were some 120 files that were taken over by Klaasen who set up his own practice, one of which was the file involving the matter concerning Daniels. Matthee who now was employed by Klaasen as a paralegal continued to attend to this file. In evidence before the court a quo Klaasen confirmed that Matthee attended to these files under his supervision.
Although correspondence was signed by Klaasen, it appears to be common cause that Matthee dealt almost exclusively with the Daniels matter.In August 2006 Matthee left the employ of Klaasen and went to work for Sheldon.Under cross examination, Matthee testified that he had taken certain files with him from Klaasen’s office but only one of these had not been brought to the attention of Sheldon, namely the file in respect of Daniels’ claim. It is common cause that prescription of the claim took place while Matthee was in the employ of Sheldon.
Upon Matthee’s resignation, Klaasen had a conversation with Matthee who insisted that the files which he obtained previously from Mr Green when he was employed by Nasson, involved matters with which he had continuously dealt and that he intended to take these files and work with them while employed by Sheldon.Following this request, Klaasen requested his secretary, Ms Collins, to contact Sheldon’s offices ‘to get some confirmation whether as what Mr Matthee had said that he had discussed it with Mr Sheldon and then is it okay for Mr Matthee to take the files over with him to Mr Sheldon’s.’Accordingly, to Klaasen, Collins initiated the conversation which took place in Klaasen’s presence as well as in the presence of Matthee.According to Klaasen, as a result of this conversation ‘at that stage I was then satisfied that I did not foresee any problems because the files have been taken over to another attorney who would then be able to address those files with the necessary skills’.Ms Collins testified that it was Matthee who spoke to Sheldon and confirmed ‘dat ek die leers wel saam kan bring want Mnr Klaasen vereis dit.’
The question that the court had to deal with is that of with whom the mandate lied, or put better, with whom did the plaintiff, Daniels, have Power of Attorney. The court found that the Plaintiff, Daniels, worked with Mr. Matthee and that it is clear evidence that Daniels regarded Matthee as her representative, and that the Power of Attorney was with Sheldon whom had the responsibility of insuring that his paralegal was able and adequately monitored and or supervised to unsure the claim of Daniels was filled timeously and correctly as well as the subsequent summons against the Road Accident Fund.
C.M. Schietekat (B. Com Law & LL. B); source: https://www.lexisnexis.co.za/
LEXISNEXIS SUMMARY:
Daniels v Klaasen and a related matter
Case Number: | A306/2018 and A307/2018 |
Judgment Date: | 14 / 08 / 2019 |
Country: | South Africa |
Jurisdiction: | High Court |
Division: | Western Cape, Cape Town |
Bench: | Davis, Le Grange and Cloete JJ |
Keywords:
Legal Practice – Claim against attorneys – Claim for damages – Prescription of claim against Road Accident Fund
Mini Summary:
A widow (“Daniels”), shortly after the passing of her husband, approached a firm of attorneys in order to prosecute her claim against the Road Accident Fund. She was assisted in completing the necessary forms by a general clerk (“Matthee”) in the firm. In 2004, the controlling member of the firm was suspended from practice by the Law Society. Discussions took place between the Law Society and the respondent (“Klaasen”) in the cross-appeal before the court – as a result of which Klaasen was requested to take over and attend to the files which previously had been dealt with by the suspended attorney. One was the file involving the matter concerning Daniels. Matthee who by then was employed by Klaasen as a paralegal, continued to attend to that file, under supervision.
In August 2006, Matthee left the employ of Klaasen and went to work for another attorney (“Sheldon”), who was the appellant in the main appeal before the court.
Although Matthee took certain files with him from Klaasen’s office, he testified that the Daniels file was not brought to the attention of Sheldon.
Daniels’ claim against the fund was allowed to prescribe and she sued Klaasen and Sheldon for damages. The trial court was only required to deal with the question of liability, and found that Klaasen had unilaterally acted as the attorney for Daniels at a time when the claim had not yet prescribed. By contrast, Sheldon had failed to exercise a reasonable duty of care and adequate supervision over Matthee, who was not a qualified attorney but who had dealt with the respondent’s claim previously. The court found that Sheldon had failed to put in place measures to prevent Daniels’ claim from prescribing. Accordingly, it ordered Sheldon to pay Daniels such damages as might be proved in due course. By contrast, Daniels’ claim against Klaasen was dismissed with costs. As a result, Sheldon appealed against the order and Daniels cross-appealed in respect of the dismissal of her claim against Klaasen.
Held that while there was no express termination of the mandate of the original law firm, the evidence indicated that, insofar as Klaasen was concerned, the mandate had terminated when he obtained confirmation from Sheldon via Matthee that the various files would be taken over by Sheldon’s practice. Further, Daniels regarded Matthee as her representative, despite him not being legally qualified, and she continued to approach him after he had left the employ of Klaasen and while he was employed by Sheldon. In other words, Daniels regarded the position as one where she was represented by Matthee and she knew that he was employed from 2006 by Sheldon, after he had left Klaasen’s employ. It was thus reasonable to infer that the authority which had been bestowed upon Klaasen by Daniels had expired once Matthee had taken the file and began his employment with Sheldon. Sheldon then held the mandate and it was he who bore the responsibility of insuring that his paralegal was adequately supervised in order to properly prosecute Daniels’ claim to fruition. Daniels’ claim for damages therefore lay against Sheldon.