“I have been involved in a motor vehicle accident, in which I was seriously injured during May 2015. In October 2015, I consulted an attorney, Mr X, who I properly mandated to institute legal action against the Road Accident Fund for damages suffered by me during the accident in May 2015. I have signed all the necessary documents to lodge a claim with the Road Accident Fund already in September 2016, but have received no confirmation from Mr X, if my claim was submitted. I have now in April 2019 contacted the Road Accident Fund itself and have learned that my claim was never submitted by Mr X. I have established that my claim for damages from the Road Accident Fund has no prescribed. What should I do?”
It should be noted that that the relationship between an attorney and client is based on a contract of mandate as set out in the matter of Mort N.O. v Chiat.
This contract imposes certain fiduciary obligations on the attorney which basically means that an attorney has a duty of care towards the client, the court, the opponent and the third parties.
The scope of the mandate depends on its express, tacit or implied terms, it need not be necessary that the mandate is in writing for example a mandate or instruction to institute an action or in this case to lodge a claim against the Road Accident Fund may well be given during the consultation with the attorney.
The liability of an attorney to a client for damages resulting from the attorney’s negligence is based on a breach of the contract between the parties. It is a term in the mandate that the attorney will exercise the skill, adequate knowledge and diligence expected of an average practising attorney. An attorney may be held liable for negligence even when the attorney committed an error of judgement on matters of discretion by failing to exercise the required skill, knowledge and diligence for example having the matter prescribed in his hands.
What you as client must allege and prove are the following:
- The mandate or instruction;
* Breach of the mandate;
* Negligence in the sense described above;
- Damages that you have suffered.
All attorneys in South Africa have insurance against claim of such nature and which claims regulated by the Attorneys Indemnity Fund of the AIIF.
The AIIF provides a primary layer of professional indemnity insurance to all practising attorneys in South Africa as such and in the event that a claim prescribes in the hands of an attorney, the AIIF will step in the shoes of the attorney like any other insurance company would do for example in a motor vehicle accident.
A distinction should however be made between instances where an attorney has misappropriated trust moneys and when a claim has prescribed in his/her hands. In the event that an attorney has misappropriated trust money, ( i.e. money of his/her client held in the trust account), the correct forum to contact will be the Attorneys Fidelity Fund, which is a fund like the Road Accident Fund, where a claim of such nature may be lodged.
Dealing with instances where a claim has prescribed, your course of action will be to approach the offices of another attorney, who you will then instruct to sue Mr X for your damages suffered due to his negligence in handling your matter and allowing your matter to prescribe.
The AIIF policy does not provide any rights directly to a claimant and therefore you cannot claim directly from the AIIF.
If you have suffered damages as a result of the manner in which an attorney has dealt with your claim, then you need to claim damages directly from that attorney.
You can either demand payment of your damages by sending a letter of demand or instituting proceedings action in a South African court.
You, as a claimant, cannot notify the AIIF of the claim against the attorney, even if you have instituted action against the attorney. The notification of a claim has to come directly from the attorney. You are not a party to, and can thus not claim any rights from, the insurance relationship between the AIIF (as insurer) and the attorney (as insured).
Your new attorney will then address a letter of demand to Mr X setting out the bases of your claim and the amount of damages suffered by yourself. It is advised that the same letter of demand is sent to the Attorneys Indemnity Fund for their records and that in the said letter of demand, Mr X is made aware of the fact that he should immediately contact the Attorneys Indemnity Fund to lodge his claim.
It is the duty of the attorney in this case Mr X to lodge the claim with the AIIF and should he fail to do so, no assistance financial or otherwise, will be obtained from the AIIF, thus your claim will then paid only by Mr X.
If the attorney does not notify the AIIF, then no indemnity will be afforded under the AIIF policy.
It needs to be mentioned that the AIIF will only settle a part of your claim depending on the amount of damages suffered by yourself, and that it will be expected from Mr X to cover the difference.
It is advised that in the event that your claim prescribes, you should urgently contact the offices of an attorney to institute action against the attorney due to the fact that your claim against the attorney will arise the moment that you become aware of the fact that your claim had prescribed.
- Mort N.O. v Chiat  2 All SA 515 (C), 2001 (1) SA 464 (C);
- Amler’s Precedents of Pleadings, Ninth Edition, Harms, LexisNexis;