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Legal Opinion & Particulars of Claim
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Legal Opinion & Particulars of Claim
To: Ms Ferekane
From: MN Attorneys
Re: Breach of professional legal duty
Date: 20th August 2017
Statement of facts
Ms Ferekane (the plaintiff) had paid a lump sum of money (R2.5 million) into Green Attorneys trust account on 1st July 2017. The money served as a deposit to reserve property she intended to buy from Pro-Properties, in which she had also completed particular documentation pertaining to such property. She was instructed to invest her deposit in terms of Section 78(2A) of the Attorneys Act 53 of 1979.
The property was to be registered in the Plaintiff’s name on 29th June 2018, and the defendant, Mr Green had requested her to pay transfer costs a week prior to this date. Naturally, the Plaintiff was confused, as she was of the opinion that the interest earned from such an investment would be adequate to cover such costs. To her dismay, she was informed by the defendant that her deposit was never invested, and that she had to pay a further amount before they could proceed.
Has Ms Ferekane suffered any damages, and if so, does she has a claim against Mr Green?
Application of legal principles to the set of facts
To be successful in any claim, you will need to prove that; firstly, the professional attorney owed you a legal duty of care, secondly, that such duty of care has been breached by the respective attorney, and lastly, you have suffered damages as a result of such breach.
In terms of the trustee code of conduct and statutory provisions, attorneys (being experts who attain the duties of a trustee), are required to deliver a service to his/her clients with the reasonable skill, care, diligence and good faith. In this instance, Mr Green’s conduct fell well below the subjective standard of the reasonable expert test, which entails that such a person in the same profession as the defendant, who has the necessary knowledge and skill would have exercised his discretion and acted in accordance with the prescribed moral norms. Ms Ferekane had trusted the defendant with her deposit and he did not fulfil his reciprocate duty, and therefore his conduct amounted to an omission as he failed to comply with his legal duty as an attorney.
According to the Margalit v Standard Bank case, the judge stated: “Like any other professional, a conveyancer may make mistakes. But not every mistake is to be equated with negligence, and if a claim against a conveyancer is based on negligence, it must be shown that the conveyancer’s mistake resulted from a failure to exercise that degree of skill and care that would have been expected by a reasonable conveyancer in the same position.” Drawing principles from this case, an attorney is ought to exercise his knowledge and skills with a reasonable duty of care. In terms of the maxim Imperitia Culpae Adnumeratur, Mr Green lacked a diligent control of his skills and breached his duty of care with regard to the proper control of Ms Ferekwane’s deposit, therefore he is negligent.
As a result of Mr Greens’ gross negligence, Ms Ferekane has suffered harm in the form of economic loss where patrimonial loss does not result from damage to property or impairment of personality. A factual causing of the abovementioned loss does not have to be prima facie wrongful, therefore the element of wrongfulness is satisfied simply because Mr Green has breached his duty of care, which adversely infringed on the plaintiffs legally protected interest in a legally reprehensible way. The defendant ought to have the knowledge and foresight of any possible harm resulting from his conduct, and has the duty to do everything in his power to avoid the occurrence of such harm.
There is a casual link between Mr Greens conduct and the harm suffered by Ms Ferekane, in that, had it not been for such conduct, the Plaintiff would have not suffered harm, which includes R162 500 (R2 500 000 x 6.5% int. p.a.) of interest that she would have earned had her money been invested and R4400 (R40 000 x 11% int. p.a.) interest on the loan she had to borrow to cover the transfer costs.
Conclusion and Recommendation
Ms Ferekanes claim for patrimonial loss will be successful because all the elements of delict have been satisfied, and the defendant cannot escape liability because he does not have any ground of justification at his disposal.
There are 3 main delictual actions, you are advised to claim on the basis of the Actio legis Aquilie action, because you have incurred patrimonial loss through the infringement of your immaterial property rights. You will be able to claim damages from Mr Green in the amount of R131 300. The arrival at this total amount is as follows: R162 500 + R4400 – R35600 (transfer costs) = R131 300.
It must be noted, that where harm reveals the precise monetary value, the plaintiff must produce ample evidence in order to make a correct evaluation. Where damages cannot be quantified, a court may apply its own judgement. Therefore, with that being said, it is your duty to provide me with certified copies of particular documents pertaining to the matter at hand.
Please contact me telephonically or via email should you wish to proceed and issue a summons against the defendant in respect of the above.