An adversarial system of dispute resolution, in which the parties at dispute present their cases and a neutral factfinder attempts to resolve the dispute based on the parties’ representations, naturally leads to a victor and loser. Hence, this system allows for an appeal (focus is on the factfinder’s decision on the merits of the dispute) and a judicial review (focus is on the factfinder’s approach to the procedural aspects of the dispute). Another less conventional avenue is that of a losing client building a case against their legal practitioner with a view to proving a case of negligence in the execution of their mandate. The loser (if successful) is then able to claim for relief against the legal practitioner who will in all likelihood claim from the Legal Practitioners’ Indemnity Insurance Fund NPC (LPIIF).
In the latter cases, courts have to walk a thin line between –
In this article, I revisit the legal mechanics relating to the construction of a case against a legal practitioner for alleged negligence in the execution of their mandate to provide guidance on the manner in which courts have walked the thin line between these two extremes.
As a general rule, the action against a legal practitioner for professional negligence should be based on the contract between the client and the legal practitioner. By accepting the client’s instruction and undertaking to provide them with the legal services necessitated by such instruction in exchange for a fee, a contract is formed between the client and the legal practitioner. It is implied in such contract that the legal practitioner represents to the client that they have the necessary skill, knowledge and diligence to perform their duties as would be expected of a legal practitioner with ordinary skill (see Honey and Blanckenberg v Law 1966 (2) SA 43 (R) at 46E-F). The legal practitioner will be guilty of negligence if they lack such skill, care and diligence as would be expected of a legal practitioner with ordinary skill and such lack of skill, care and diligence causes harm to their client (see Honey and Blanckenberg at 46F). Goldin J set out two riders to these principles in Honey and Blanckenberg (see 46H):
Goldin J went on to point out the inherent difficulty in making the value judgment of whether the legal practitioner has used reasonable skill, care, and diligence – the conclusion on this point was that it is ultimately a matter of degree (see Honey and Blanckenberg at 47A). A good illustration of the degree at which the legal practitioner’s conduct will not be accepted as being of ordinary competence is available in the case of Mazibuko v Singer 1979 (3) SA 258 (W), where an legal practitioner had allowed a client’s claim to prescribe and Colman J concluded that ‘no attorney of ordinary competence and diligence’ would allow a client’s claim, which was clearly of importance to such client to become prescribed (Mazibuko at 264G-H). It can, therefore, be argued that a legal practitioner will be guilty of negligence for harm caused to a client owing to the lack of skill, care, and diligence only where such negligence is manifestly clear from the facts of the case.
It should be noted that the existence of a contractual relationship between the legal practitioner and the client must be proved before the court (see Broderick Properties (Pty) Ltd v Rood 1964 (2) SA 310 (T) at 314A-B). In this regard, the client must either have a documented contract with the legal practitioner or demonstrate circumstances that prove the existence of an implied contractual relationship (Broderick Properties (Pty) Ltd at 314A – B).
Should the client fail to prove the existence of a contract or to discharge the onus of proof to succeed in the contractual claim, then a claim in delict may be made in the alternative. In this regard, the client will have to prove the existence of all the elements of delict – conduct, damage, causation, negligence and wrongfulness. While it is important to prove all the elements of delict to succeed, I will only look at some of these elements that have received attention from the courts in cases relating to an legal practitioner’s liability for negligence in executing their mandate.
The aggrieved client must prove on a balance of probabilities that the legal practitioner’s negligent conduct caused the harm suffered (see for example Broderick Properties (Pty) Ltd at 315E-F). That is, the harm must ‘fairly and reasonably’ be considered to flow naturally from the legal practitioner’s conduct and the legal practitioner must have foreseen such consequences for them to be considered as flowing naturally from their conduct (see Bruce, NO v Berman 1963 (3) SA 21 (T) at 24A).
Negligence is the ‘failure to observe that degree of care which a reasonable [person] would have observed’ (Broderick Properties (Pty) Ltd at 314H). In particular, the client must prove on a balance of probabilities that the legal practitioner foresaw the harm their conduct would cause but failed to guard against it – the establishment of the duty to care (see Broderick Properties (Pty) Ltd at 315A).
Moreover, the client must prove on a balance of probabilities that the negligent conduct of the legal practitioner amounted to a failure to exercise the level of skill, care and diligence as would be expected of a reasonable person (see Broderick Properties (Pty) Ltd at 315D-E).
One needs to take notice of the potential concurrence of action that might be present in these cases – at face value it seems that the client has a choice between a contractual action or delictual action. In a seminal judgment on the issue of concurrence of action, Grosskopf AJA concluded that delictual liability should not be imputed for a breach of contract (Lillicrap, Wassenaar and Partners v Pilkington Brothers (SA) (Pty) Ltd 1985 (1) SA 475 (A) at 501G-H). The Supreme Court of Appeal later clarified the principle set in the Lillicrap case in that it only applies to cases based on the breach of a contractual duty and is not teaching us that delictual liability cannot be imputed in general where a contractual claim exists (Holtzhausen v Absa Bank Ltd 2008 (5) SA 630 (SCA) at para 7). It is, therefore, clear that at the first instance the legal practitioner’s liability for negligence in executing their mandate must be based on the breach of the contract between the legal practitioner and their client, only in cases where the existence of such contract cannot be proved should the delictual claim be made. It might be good practice to make the delictual claim in the alternative even if the contractual claim seems to have prospects of success.
Odwa Golela LLB (UFH) LLM (Wits) Cert BA Dip MA (CIMA) Cert in Compliance Risk Management (UCT) is a Research Assistant at Lelaka Attorneys in Johannesburg.
This article was first published in De Rebus in 2021 (May) DR 10.
