After losing an opportunity to purchase a farm for a low price, a couple sued their previous attorneys after the firm failed to comply with formalities. However, before the high court trial started, the attorneys argued the couple's claim had been brought too late.
After appeals, the Constitutional Court ruled the couple could not, as non-lawyers, be expected to know the firm had acted negligently when f+ormalities were being finalised. Therefore, the couple were not out of time.
The judgment potentially allows anyone suing a lawyer to have more time to bring a case. Since most people are not lawyers, one would not know their lawyer was wrong until probably much later and from another lawyer.
The court said the time limit only starts when a client discovers, not when the lawyer was negligent.
In 2003, farmer Jan Steenkamp died. Earlier he agreed with Pieter and Johannes le Roux allowing them to buy his farm for R141,000 after his death. The Le Rouxs spoke to their attorney, DC Coetzee, who assured them there was nothing more to sign and he would attend to the transfer formalities.
However, Coetzee discovered that Steenkamp, before his death, had already transferred the farm. Steenkamp had done so without alerting the Le Rouxs. The Le Rouxs sued Steenkamp’s family, pointing out they (the Le Rouxs) had a prior agreement giving them first claim to the farm.
During the trial in 2007, under cross-examination Coetzee did not dispute the formalities for transfer had not been complied with.
In 2009, the high court dismissed the Le Roux's case on the grounds that Coetzee and his firm had not complied with the formalities of the relevant land transfer legislation.
In response to this, also in 2009, the Le Rouxs turned their sights on their (now previous) attorney Coetzee, arguing he breached his duties in not complying with the formalities.
Despite succeeding in their claim against Coetzee and his firm in the high court, appeals resulted in the matter going to the Constitutional Court.
Coetzee argued the matter should not be heard because the claim against him had been “prescribed” — that is, it was too late for Coetzee to bring it. Prescription law says you must bring a claim within three years of knowing you have a case. Coetzee said the negligent breach happened in 2003, when he was drawing up the transfer, and the Le Rouxs only sued in 2009.
On Monday, Constitutional Court judge Jody Kollapen disagreed. Writing for the majority, he noted clients are not legal experts. “It would be unrealistic,” he wrote, “for a layperson who has no knowledge of the law to know or reasonably suspect that the advice given by a legal practitioner or the manner in which a mandate was discharged was legally correct.”
He therefore created a limited exception, allowing clients, in professional negligence cases against lawyers, to not have court doors shut to them until they learn that the lawyer had made a mistake. For example, the Le Rouxs could not have known Coetzee had allegedly been negligent in not complying with land transfer formalities, when they told him to start in 2003. They only realised this in 2007, when they were suing the Steenkamps for the land.
Kollapen upheld the appeal by the Le Rouxs. They can now presumably continue the trial in the high court against Coetzee and the firm, unless the parties settle as a result of Tuesday’s judgment.
TimesLIVE.
ConCourt creates new limited space to sue lawyers for professional negligence
Image: 123RF/ rclassenlayouts/ File photo
After losing an opportunity to purchase a farm for a low price, a couple sued their previous attorneys after the firm failed to comply with formalities. However, before the high court trial started, the attorneys argued the couple's claim had been brought too late.
After appeals, the Constitutional Court ruled the couple could not, as non-lawyers, be expected to know the firm had acted negligently when f+ormalities were being finalised. Therefore, the couple were not out of time.
The judgment potentially allows anyone suing a lawyer to have more time to bring a case. Since most people are not lawyers, one would not know their lawyer was wrong until probably much later and from another lawyer.
The court said the time limit only starts when a client discovers, not when the lawyer was negligent.
In 2003, farmer Jan Steenkamp died. Earlier he agreed with Pieter and Johannes le Roux allowing them to buy his farm for R141,000 after his death. The Le Rouxs spoke to their attorney, DC Coetzee, who assured them there was nothing more to sign and he would attend to the transfer formalities.
However, Coetzee discovered that Steenkamp, before his death, had already transferred the farm. Steenkamp had done so without alerting the Le Rouxs. The Le Rouxs sued Steenkamp’s family, pointing out they (the Le Rouxs) had a prior agreement giving them first claim to the farm.
During the trial in 2007, under cross-examination Coetzee did not dispute the formalities for transfer had not been complied with.
In 2009, the high court dismissed the Le Roux's case on the grounds that Coetzee and his firm had not complied with the formalities of the relevant land transfer legislation.
In response to this, also in 2009, the Le Rouxs turned their sights on their (now previous) attorney Coetzee, arguing he breached his duties in not complying with the formalities.
Despite succeeding in their claim against Coetzee and his firm in the high court, appeals resulted in the matter going to the Constitutional Court.
Coetzee argued the matter should not be heard because the claim against him had been “prescribed” — that is, it was too late for Coetzee to bring it. Prescription law says you must bring a claim within three years of knowing you have a case. Coetzee said the negligent breach happened in 2003, when he was drawing up the transfer, and the Le Rouxs only sued in 2009.
On Monday, Constitutional Court judge Jody Kollapen disagreed. Writing for the majority, he noted clients are not legal experts. “It would be unrealistic,” he wrote, “for a layperson who has no knowledge of the law to know or reasonably suspect that the advice given by a legal practitioner or the manner in which a mandate was discharged was legally correct.”
He therefore created a limited exception, allowing clients, in professional negligence cases against lawyers, to not have court doors shut to them until they learn that the lawyer had made a mistake. For example, the Le Rouxs could not have known Coetzee had allegedly been negligent in not complying with land transfer formalities, when they told him to start in 2003. They only realised this in 2007, when they were suing the Steenkamps for the land.
Kollapen upheld the appeal by the Le Rouxs. They can now presumably continue the trial in the high court against Coetzee and the firm, unless the parties settle as a result of Tuesday’s judgment.
TimesLIVE.
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