Hadebe v Mc Ntshalintshali Attorneys (D3229/2020) [2023] ZAKZDHC 103 (23 November 2023)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: Kwazulu-Natal High Court, Durban South Africa: Kwazulu-Natal High Court, Durban You are here: SAFLII >> Databases >> South Africa: Kwazulu-Natal High Court, Durban >> 2023 >> [2023] ZAKZDHC 103 | Noteup | LawCite sino index ## Hadebe v Mc Ntshalintshali Attorneys (D3229/2020) [2023] ZAKZDHC 103 (23 November 2023) Hadebe v Mc Ntshalintshali Attorneys (D3229/2020) [2023] ZAKZDHC 103 (23 November 2023) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAKZDHC/Data/2023_103.html sino date 23 November 2023 IN THE HIGH COURT OF SOUTH AFRICA KWAZULU-NATAL LOCAL DIVISION, DURBAN CASE No: D3229/2020 In the matter between: NCAMISILE  ZANDILE  ELZAINAH HADEBE                                                                                      APPLICANT and MC NTSHALINTSHALI ATTORNEYS                                         RESPONDENT ORDER In the premises the following order is made: Defendant is liable to pay 100% of the plaintiff’s proven damages. JUDGMENT Mathenjwa J [1]      The plaintiff in this case is Ncamisile Hadebe an adult female of 53 years old . The defendant is M C Ntshalintshali Attorneys, a practising law firm with its main place of business in Glenwood, Durban KwaZulu- Natal. [2]      The plaintiff has instated action against  attorneys for professional negligence in the conduct of her claim against the Road Accident Fund ( RAF) in failing to issue summons before the claim became prescribed and  failure to  timeously withdraw as  plaintiff’s attorneys before the claim become prescribed. [3]      On 23 September 2014 the plaintiff sustained injuries while she was a passenger in a motor vehicle that was involved in a collision  along the Umngeni Road, Durban. On 21 August 2017 she consulted  and instructed the defendant who accepted an instruction to institute and manage a claim for compensation against the RAF. The Plaintiff’s claim  would have prescribed on 22 September 2017 unless the plaintiff files the prescribed claim forms (RAF1) with RAF. Subsequently, on or about 22 September, the defendant filed RAF1 forms with RAF which extended the time on which the plaintiff’s claim would prescribe. RAF responded with a letter of no objection to the plaintiff’s claim form. On 27 December 20117 the defendant lodged the claim with RAF and  on 22 September 2019 the plaintiff’s claim prescribed. [ 4]     The issue for consideration in this case is  whether or not the plaintiff’s claim  for damages that was managed by the defendant became prescribed as a result of the defendant’s negligence. [ 5 ]    The plaintiff in her particulars of claim amplified by viva- voce evidence alleged that she consulted with Ms Nosabelo Mkhize at the defendant’s office about five times  in respect of her claim against RAF. During her evidence in chief she was referred to a letter  dated 12 September 2019 addressed by the defendant to her, wherein the defendant  allegedly advised her that their offices would no longer proceed with her claim based on the report by Dr Motebejane which, was allegedly discussed with her at the defendant’s offices on 11 September 2019.  Dr Motobejane is  a specialist neuroradiologist who examined the plaintiff and compiled a medico- legal report. In the said letter the plaintiff was further advised that she could approach other attorneys and the defendant would assist the other attorneys by providing them the contents of the  file. The plaintiff disputes that the defendant  informed her that she would no longer proceed with her claim and that the alleged letter was delivered to her. She contends that she was not satisfied with the progress of her case and consulted other attorneys, Mak Ameen & Company Attorneys. She contended that she had seen the letter for the first time at the offices of her new attorneys. [ 6]     Upon cross examination by the defendant’s counsel Mr Ndlela she explained that on 11 September  she went to the defendant’s offices because she was not informed by the defendant about the  progress of her claim. On that date she was informed by Nosabelo that she had to go home and consider whether she could secure  R100 000.00 as a security, because if she were to lose the matter the defendant would not be able to pay for legal costs, she denied that the defendant informed her that she  would not proceed with her claim. After her consultation with Nosabelo she formed the view that Nosabelo was not sure about what was happening in her matter, and  decided to consult another attorneys. [7]      Ms Nosabelo  testified for the defendant’s case. She was a candidate attorney when she received the instruction from the plaintiff in September 2017. When the plaintiff gave them the  instruction on 21 August 2017 it was about fifty-one days before the claim  would  become prescribed. On 22 September 2017 she delivered a claim to RAF  and RAF responded with a letter of no objection to their claim.  On 27 December 2017 she delivered a lodgement letter to RAF. After  the lodgement of the claim  the defendant sent the plaintiff to the offices of RAF for medical examination. After sometime  they received a  medico- legal examination report on the examination of the plaintiff from Dr Motebejane, and subsequently an email from RAF advising them that RAF had repudiated the claim. ON 11 September she informed the plaintiff at their offices that the defendant would no longer proceed with her claim and  on 12 September the defendant wrote a letter to her re affirming  their position that they were no longer proceeding with her claim. [8]      Upon cross examination by the plaintiff’s counsel Mr Nel, Nosabelo  confirmed that she was admitted as an attorney on 16 September 2019; she confirmed that the defendant received Dr Motebejane’s medical report from RAF  on 28 January 2019 and that  the defendant was  informed that RAF  repudiating the claim on the same date.  Nosabelo further confirmed that   in accordance with the medico- legal report  the defendant would not claim general damages but they could still claim damages  for loss of earnings, past and future medical costs. When asked why did  the defendant not issue summons  immediately after RAF had repudiated the claim Nosabelo responded that  in a firm  with 1000 RAF files it would not make business sense to issue summons based on  one file. She was further referred to  paragraph 28 of the  Medico-legal report where it is recorded that the plaintiff had sustained whiplash, mild head injury and blunt chest and abdominal injuries, and to paragraph 30 of the report where it is recorded that “ progressive pain and weakness of  the right upper limb may be improved by anterior cervical diskectomies and cage fusions. She confirmed that  what was recorded in the report shows that the plaintiff had sustained  serious injuries. Nosabelo was further referred to paragraph 30 where  Dr Motobejane suggested that the plaintiff should  be referred for further medically therapy to assessment by industrial psychologist, occupational therapists, clinical psychologist. physiotherapist and orthopaedic surgeon.  She confirmed that the defendant did not refer the plaintiff to the specialists as suggested in the report. [ 9]   An attorney’s liability to  his or her client arises  out of contract which comes into effect when the attorney accept instructions to act on behalf of the client. By accepting instructions from the client the attorney professes to be vested with adequate legal knowledge and skills to advance the interests of the client. [1] Thus, the attorney owes a duty of care to conduct and manage  a client matter with requisite skills and expertise expected from a reasonably competent and diligent attorney. If the attorney unreasonably delayed in issuing summons before the claim become prescribed, he or she is guilty of the breach of care. [2] Furthermore, it is trite law that if the attorney causes loss or damage to his or her client owing to a want  of knowledge as he or she ought to possess or the want of such care he or she ought to exercise, he or she is guilty of negligence giving rise to an action for damages by his or her client against him of her. [3] Accordingly, making a value judgment, the defendant had a professional duty towards the plaintiff firstly to properly  read and advise her of the legal implications of Dr Motobejane’s medico- legal report’ to her claim, ensure that they issue summons before the claim prescribes and to withdraw timeously as her  attorneys  to enable her to secure  service of another attorney before the claim become prescribed. [10]    There is dispute between the plaintiff and the defendant about the nature of the advice that was given to the plaintiff by Nosabelo on 11 September. According to the plaintiff, she was advised that she needed to go home and consider whether she could secure R100 000.00 funds as a security for costs in case she were to lose the claim, she was not informed that the defendant would no longer proceed with her claim.  According to Nosabelo, she advised the plaintiff that she would need funds to refer the matter  to another expert for another opinion,  and she informed her that the defendant would no longer proceed with the matter. In my view   what is significant is  the nature of the advice that the defendant gave to the plaintiff about  the implication of the medico- legal report on her claim. During cross-examination  Nosabelo confirmed that in accordance with the  medico-legal report the plaintiff had sustained serious injuries,  although she was not entitled  to a claim for  general damages,  she could still claim for loss of support, past and future medical costs; the report suggested that she be  referred to other experts for further assessment and the defendant did not comply with that suggestion.  Further, it  came out during cross examination  that  the defendant did not issue summons immediately after  RAF had repudiated the claim reason being that the defendant had about  1000 RAF files and  that would not make business sense to  take a decision on the issue summons based on one file. [11 ]   In casu it is not in dispute that RAF repudiated the plaintiff’s claim on 28 January 2019; the defendant did not immediately issue summons against RAF, was in active   for a period of  more than seven months and only informed the plaintiff on 11  September 2019 that they would not proceed with her claim, the plaintiff’s claim  prescribed on 22 September 2019;  the defendant’s decision to  withdraw   was  allegedly communicated to her about eight court days before  the claim became prescribed. In my view, the defendant owed the duty of care to the plaintiff as an individual, therefore, the volume of other related RAF files should not negate their duty  of care towards the plaintiff’s matter as an individual.  Furthermore, it  became clear during cross examination that, the medico-legal report reflects that the plaintiff could claim RAF for loss of earnings, past and future medical costs.  Thus, the slackness and failure by the defendant to immediately issue summons when RAF repudiated the claim and  to recognise the merits on the plaintiff’s claim  that she was entitled to  claim for loss of earnings, past and future medical costs was negligent and unreasonable. [ 12]   I now turn to consider the short-comings in the defendant’s withdrawal as  plaintiff’s attorneys . The duty of care imposed upon an attorney to conduct and manage  a client matter with requisite skill and diligently extend to  a stage when  an attorney terminates his or her mandate with the client. In Macdonald t/a Happy Days café v Neethling 1990 (4) SA30 (N) at31E-F  Didcot J stated as follows; ‘… it is quite plain that an attorney must, if he is going to withdraw from a case, withdraw from it timeously and inform his client that he is withdrawing so that the client can make other arrangements or, if there are none which he can make and if he wishes to do so, so that he may appear in person to argue his appeal…’ The fact that the defendant informed  the plaintiff merely seven court days before her claim became prescribed, deprived her of the right to secure another legal representatives. In my view there were no basis for the defendants to withdraw as plaintiff’s attorneys other than that they had realised that they had failed to prosecute the plaintiff’s claim before it became prescribed. It is apparent from the medico-legal report upon which the defendant based  their decision to discontinue with the plaintiff’s claim, that there were merits in her claim  in respects of loss of earnings, past and future medical costs. Furthermore,  it is not reasonable to expect the plaintiff to secure another legal adviser,  that the said legal adviser would request the file from the defendant, read the file , secure opinion  from counsel if necessary  and  institute an action within  seven days. It is clear that the plaintiff’s claim became prescribed because the defendant did not issue summons against RAF nor timeously withdraw as plaintiff’s attorneys to enable  her to secure another attorney  to procced with the claim before it became prescribed. Consequently, there is close enough relationship between the defendant’s conduct and its consequences. [ 13]   The conduct of the defendant does not only constitute a breach of contract; it offends the plaintiff’s constitutional right to have access to court. The plaintiff, a lay person  instructed the defendant who are trained lawyers to provide assistance and prosecute her claim against RAF. When  the RAF repudiated the  claim,  a dispute had arisen between RAF and the plaintiff.  Section 34 of the Constitution provides that:  ‘Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair  public hearing before a court or where appropriate in another independent and impartial tribunal or forum’. The essence of the right of access to court is that it does not only creates a right of access to court but , also requires  the  plaintiff’s dispute’s with RAF to be decided in a fair hearing before an independent and impartial forum. [4] In the present matter the prescription of the claim prevents the plaintiff from having her dispute with RAF decided  fairly by a court. Order [14] in the premises the following order is made: Defendant is liable to pay 100% of the plaintiff’s proven damages. Mathenjwa J Date of hearing: 6 November 2023 Date of Judgment: November 2023 Counsel for Applicant: J P Nel Instructed by: M.A.K  Ameen& company Durban Counsel for respondent: MV Ndlela Instructed by: Dludlu Attorneys Durban [1] Lekeur v Santam Insurance Co. Ltd 1969 (3) SA 1 ( CPD) at 6H – 7A [2] Mouton v die Mynwerkers unie 1977 (1) SA 119 (A) at 142-3. [3] Ramonyai v LP Molope Attorneys ( 2010/29310) [2014] ZAGPJHC 65 ( 27 February 2015) para 16 [4] Currie I and De Waal J “ The Bill of Rights Handbook ” 6 th ed ( Juta & Co. Ltd, 2013) 710. sino noindex make_database footer start