Mazibuko v Singer

• Jurisdiction: South Africa
• Judge: Colman J
• Judgment Date: 10 November 1977
• Citation: 1979 (3) SA 258 (W)
• Court: Witwatersrand Local Division

C Colman J:

This is an action for damages against an attorney, based on an alleged breach of his contract with his client. It is only right that I should at once make this observation: That, although the plaintiff's claim has been preferred against the defendant (and properly so), no act or default by the defendant personally is relied upon. In all matters D relevant to this action the defendant acted through his employee, one Makda. He accepts responsibility for what Makda did and failed to do: but if there was any incompetence, negligence, lack of diligence or the like, touching the plaintiff's affairs, it was that of Makda, not of the defendant personally.

The plaintiff, now a man in his early fifties, was knocked down by a motor E car in Orlando East on 13 December 1969. He was injured in the collision, and in about April 1970 he sought legal assistance in recovering the damages to which he was entitled. It is common cause that he engaged the services of the defendant (through the defendant's servant Makda) for that purpose, and that his mandate was accepted.

As to the terms of the mandate I have the evidence of the plaintiff only, F because Makda has suffered a serious illness and was not available to testify. But, subject to the difficulties of recollection which any witness would have after the lapse of 71/2 years, there is nothing to criticise in the plaintiff's evidence about the terms of the mandate, and I accept what he says.

G dge whatsoever. It is not surprising, therefore, that his contract with the defendant was expressed in simple terms. Speaking years after the event (and through an interpreter) the plaintiff told the Court about what passed between him and Makda in these terms:

"I said to Makda I was knocked down by a car and asked if it was H possible for him to lodge a claim on my behalf. He agreed to do it. He took a statement from me. I did not know what had to be done. I left everything in his hands because he said he would help me. He did not explain to me what had to be done. He said he would do it."

In a later passage the plaintiff said:

"When I first spoke to Makda I had no knowledge of whom to claim from. That is why I approached him. I didn't know about it but Makda said he would claim the third party insurance."

Later still, he said:

"I did not mention a court. I said he should help me about a claim. I did not

Colman J

say from whom he should claim. Only to help me with a claim... I asked him to help me with a claim. He said he would. He did not tell me what he would do".

A (These are not extracts from a verbatim record. They are my notes, taken during the evidence. They are not always verbatim, but I am confident that they reflect the substance of what was said).

There is confirmation of Makda's acceptance of the mandate in his correspondence file. He wrote many letters on behalf of the plaintiff, and B in several of them he referred to the plaintiff as the defendant's client, for whom the defendant was acting. By way of example, I would refer to a letter written to an insurance company on 27 January 1971 wherein Makda (over the name of the defendant) wrote:

"... we are instructed to handle a claim on behalf of our client Herbert Mazibuko in terms of the Motor Vehicle Insurance Act".

C I mention that because there was some debate as to the nature and scope of the contract between the plaintiff and the defendant. At one stage I put it to counsel for the defendant that his client, through Makda, had undertaken to do whatever was necessary and practicable to recover such damages as the plaintiff was entitled to receive, from the person liable D to compensate him. Counsel responded by saying that that was too wide an interpretation. He said, rightly in my view, that Makda would have been entitled, at any stage, to call upon the plaintiff for a reasonable amount in respect of fees, and to refuse to act further until payment was made. But that situation did not arise. The plaintiff's uncontradicted evidence, which I accept, was that he would have provided money if called upon to do so, but was never so called upon.

E Another comment made by counsel was that, if it became necessary to issue a Supreme Court summons, a power of attorney from the plaintiff would have been required. That is true, but it is irrelevant to this action because the matter never reached the stage when a summons could have been issued. In terms of s 11 bis (2) of the Motor Vehicle Insurance Act 29 of 1942 F (the statute in force at the material time), no claim against a registered insurer was enforceable by action unless, at least 60 days before service of the summons, a claim in statutory form (commonly styled MVA 13) had been sent by registered post, or delivered by hand, to the registered G insurer. Under s 11 (2) (a) of the Act a claim for compensation against a registered insurer became prescribed in two years from the date upon which that claim arose; but prescription was suspended during the period of 60 days referred to in s 11 bis (2). If the vehicle causing the damage was uninsured, so that an action against its owner or driver was appropriate (with possible recourse later against a statutory fund), it was likewise H essential, in terms of the relevant agreement, to serve a claim, in prescribed form (MVA 22), within the two year prescriptive period, upon the Motor Vehicle Assurance Fund.

Reverting to the contract between the plaintiff and the defendant, it will suffice if I say that the defendant's obligations thereunder were at least to do all that was necessary and practicable in order to ensure that, before the period of prescription ran out, form MVA 13, duly completed, was in the hands of the insurance company which had been the registered insurer, on the date of the collision, of the car which had struck the plaintiff. If it was ascertained that the car had been uninsured

Colman J

at that date, the obligation would be to do all that was necessary and practicable to ensure that, before the plaintiff's claim was prescribed, a A form MVA 22, duly completed, was in the hands of the Motor Vehicle Assurance Fund. If there was sufficient doubt on the question whether the car had been insured or not to justify action against two or more defendants in the alternative, the duty was to ensure, as far as was practicable, timeous delivery of each of the two forms to the person entitled to receive it.

B In some of the letters written by Makda, such as his letters to the police dated 20 September 1971, 19 October 1971 and 19 November 1971, it would appear that Makda took the same, or a very similar view, about the nature and...