Magongo v Dercksens Incorporated

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Adhikari AJ
• Judgment Date: 09 June 2023
• Citation: 2023 JDR 2168 (WCC)
• Docket Number: 5087/2017
• Court: Western Cape High Court, Cape Town

Adhikari AJ:

[1]

The plaintiff issued summons against the defendant for damages arising from an alleged failure by the defendant, Dercksen's Incorporated, its member or employee ('the defendant') to timeously prosecute a claim on her behalf against the Road Accident Fund ('RAF').

[2]

Dercksen's Incorporated, is a firm of attorneys based in Knysna, in the Western Cape.

[3]

In the particulars of claim the plaintiff pleads that during or about September 2009 the defendant accepted instructions from her to institute a damages claim against the RAF on her behalf in respect of injuries sustained by the plaintiff in a motor vehicle accident which occurred on 11 July 2009. The plaintiff further pleads that the defendant negligently failed to lodge her claim with the RAF and that as a result her claim prescribed.

2023 JDR 2168 p2

Adhikari AJ

[4]

At the close of the plaintiff's case, the defendant applied for absolution from the instance on the basis that there was no evidence that the plaintiff had instructed the defendant to act on her behalf.

THE TEST FOR ABSOLUTION AND APPLICABLE LEGAL PRINCIPLES:

[5]

The correct approach to an absolution application is conveniently set out in Gordon Lloyd Association v Rivera and Another: [1]

'The test for absolution to be applied by a trial court at the end of a plaintiff's case was formulated in the case of Claude Neon Lights (SA) Ltd v Daniel . . . .

'When absolution from the instance is sought at the close of plaintiff's case, the test to be applied is not whether the evidence led by plaintiff establishes what would finally be required to be established, but whether there is evidence upon which a Court, applying its mind reasonable to such evidence could or might (not should, nor ought to) find for the plaintiff. The plaintiff has to make out a prima facie case in the sense that there is evidence relating to all the elements of the claim. [footnotes omitted]

[6]

The Court has a discretion to grant or refuse absolution and, in the exercise of this discretion, the Court would normally not have regard to credibility of witnesses unless there was a serious issue regarding the credibility of such witnesses to the extent that the Court was unable to place any reliance upon them and the Court may also have regard to the possibility that the plaintiff's case may be strengthened by evidence emerging during the defendant's case. [2]

2023 JDR 2168 p3

Adhikari AJ

[7]

At the absolution stage the plaintiff's evidence should hold a reasonable possibility of success for her and in the event that the Court is uncertain as to whether the plaintiff's evidence has satisfied this test, absolution ought to be refused. [3]

THE ISSUES IN DISPUTE:

[8]

The two primary issues in dispute are whether the plaintiff's claim against the defendant has prescribed and whether on the merits the plaintiff has proven that the defendant accepted an instruction to act on her behalf to prosecute a claim against the RAF.

[9]

The defendant bears the onus of adducing evidence in respect of the question as to whether the plaintiff's claim against the defendant has prescribed and the plaintiff bears the onus in respect of all other issues in dispute.

[10]

The plaintiff was thus required to first call her evidence on the issues in respect of which she bears the onus. It was then open to the plaintiff after leading her evidence to call on the defendant to lead its evidence in respect of the issue of prescription in respect of which the defendant bears the onus, [4] or to close her case after leading her evidence. [5]

[11]

The plaintiff in this matter elected to close her case after leading her evidence, and the defendant as it was entitled to do, sought absolution from the instance on the basis that the plaintiff had failed to make out a prima facie case that she had been accepted as a client by the defendant.

THE EVIDENCE:

[12]

The plaintiff was the only witness that gave evidence. The plaintiff testified in isiXhosa with the assistance of an interpreter. The plaintiff testified that she has a good memory and that she had attended school up to Grade 10.

2023 JDR 2168 p4

Adhikari AJ

[13]

The plaintiff testified in chief that she was injured in a motor vehicle accident that took place on the N2 near Tsitsikamma on 11 July 2009 while enroute to a funeral in Lady Frere.

[14]

According to the plaintiff's evidence in chief, she was travelling with seven other people as a passenger on the back of a bakkie. Aside from the eight passengers on the back of the bakkie, there were two other persons in the cab of the vehicle, one being the driver of the vehicle and the other a passenger seated inside the cab of the vehicle. The plaintiff testified that the vehicle was swerving in and out of the road and that she was thrown around on the back of the vehicle, sustaining injuries to her back and pelvis and that as a result of her injuries she was hospitalised.

[15]

The plaintiff testified that she was hospitalised from 11 July 2009 to 20 August 2009 and that after she was discharged from the hospital, she approached attorneys to assist her as she had been advised by neighbours and by her doctors to approach an attorney for advice on seeking compensation for her injuries.

[16]

The plaintiff testified in chief that in November 2010 she approached the defendant together with another passenger who...