THE AGREED FACTS
In the court a quo, as
before this Court, the parties were agreed that the action instituted by the
appellants arose out of the improper issue, by the respondent's legal
practitioner, of a writ of ejectment and attachment against the first
appellant. Indeed, before the court a quo,
it was common cause that, ...
THE AGREED FACTS
In the court a quo, as
before this Court, the parties were agreed that the action instituted by the
appellants arose out of the improper issue, by the respondent's legal
practitioner, of a writ of ejectment and attachment against the first
appellant. Indeed, before the court a quo,
it was common cause that, in order to execute upon the judgment granted in
its favour, but which had been appealed against, the respondent required the
leave of the court to execute that judgment. This, the respondent's legal
practitioner had not applied for, apparently out of a lack of appreciation of
the correct legal position in the circumstances.
It was common cause that the respondent had left its
affairs in the hands of its legal practitioner, believing that he would
professionally handle those affairs. The fault, in not applying for leave and
thereafter in instructing the Messenger of Court to proceed to evict the first
appellant and attach its property, was that of the legal practitioner. The
respondent was not involved in the making of this decision nor was it aware of
the fact that the eviction and attachment were unlawful.
In short, the respondent had not done anything beyond
instructing its legal practitioner to represent it in the ensuing litigation.
WHETHER A PARTY IS
LIABLE FOR ITS LEGAL PRACTITIONER'S DELICTS
In my view, this question is central.
What is the relationship between the respondent and its
legal practitioner in terms of our law of delict? Is it simply one of principal
and agent as submitted by the appellant?
The position in English law is clear.
A legal practitioner is his client's agent. What he does or
does not do binds his client. The act of the legal practitioner is the act of
the client. This is the position both in contract or delict.
The above position has been stated and restated in various
English cases. In Collett v Foster 1857
2 H + N 356, 157 ER 147, the court stated…,:-
“I have always understood that, where a party employs an
attorney, and judgment is obtained and execution issued, and that execution set
aside on the ground of irregularity, then the client is liable for any act of
trespass under that process. The writ is a justification to the officer but not
to the party. The attorney who has gone beyond his duty becomes responsible
with his client. An attorney is a peculiar kind of agent; in the Court he is
put in the place and stead of the client, and is authorized to take proceedings
on his behalf, but the client, who rarely knows what proceedings the attorney
takes, is responsible. This principle has been so long settled and laid down in
the books that I do not wish it to be understood that I entertain the slightest
doubt upon this subject…,. But the general rule in the case of attorney and
client is, that when legal process issues, and a trespass is committed, and the
writ is afterwards set aside, the principal becomes liable. The contest
generally is, not whether the client, but whether the attorney is liable.”
In Roman-Dutch law, within the field of contract, the
position is not different.
Contractual liability depends on the presence of privity
which exists in most cases. In such cases, the client's liability for a legal
practitioner's conduct is the same as if the client had performed the service himself.
For this reason, in proceedings before the Court, the conduct of the lawyer
binds the client. See, for example, the remarks of my sister judge ZIYAMBI JA
in Machaya v Muyambi SC04-05.
The position in delict is however different.
A situation where a client instructs a lawyer to handle his
affairs and leaves everything to his discretion and the legal practitioner then
commits a delicit cannot be determined by reference to the employer-employee
relationship because the lawyer is not an employee of the client. He is a
professional who has tendered his services for a fee. Such an agreement is one
of mandatum or lastgeving. In such a contract, a legal
practitioner, as mandatary (mandatarius),
undertakes to perform legal work on behalf of the client, who is the mandator
(mandator).
Commenting on the nature of this relationship, J.R. MIDGLEY
states in his text, Lawyers Professional Liability…,:-
“…, one of the features of a lawyer's mandate is that the
obligation to obey instructions is varied and the lawyer is granted sufficient
independence to fall outside the client's control. As Atiyah points out 'prima
facie, it is clear that a solicitor
in private practice is an independent contractor in his relationship with his
clients, and it might therefore have been assumed that a client could not be
vicariously liable for anything done by his solicitor - even though it be done
in his name and on his behalf.'”
However, there have been conflicting opinions, both in
academic and judicial circles, as to whether or not, in principle, a mandator
is vicariously liable for his mandatary's delicts - J.R. MIDGLEY…., Lawyers
Professional Liability at p189.
In Eksteen v Van Schalkwyk en'n Ander 1991 (2) SA 39 (T),
the court confirmed that an attorney–client relationship is based on mandate.
Following a thorough review of Roman and Roman-Dutch law, the court was unable
to find any instance in which a mandator was held vicariously liable for the
delict committed by a mandatary. Under Roman law, a mandatary was not the agent
of the mandator. See Totalisator Agency Board, OFS v Livanos 1987 (3) SA 192 W, 201.
However, in Barclays National Bank Ltd v Traub, Barclays National
Bank Ltd v Kalk 1981 (4) SA 291 (W),
the mandator was held liable for the delict committed by an agent on the basis
that the agent's knowledge could be imputed to the principal. This case
followed English and American law where clients have been held liable for the
improper institution and conduct of legal proceedings – J.R. MIDGLEY…., Lawyers
Professional Liability at p191.
In Eksteen v Van Schalkwyk en'n Ander 1991 (2) SA 39 (T), the court accepted the position to be
that, where a client had not instructed an attorney to commit a delict or where
he was not able to foresee that the attorney would commit the delict, the
client would not be liable.
NEETHLING, POTGIETER, VISSER in their book Law of Delict, 7th
ed, also argue that the mandator is only liable for damage caused by the
mandatary if the former himself also committed a delict…,.
J.R. MIDGLEY…., Lawyers Professional Liability concurs. The
learned author states, at pages 190-191:-
“Roman-Dutch law…, indicates that the mandator could be
liable in delict, but only if he were a party to the conduct or where the
mandator himself were at fault in that he should reasonably have foreseen the
mandatary's conduct. South African law…, reflects this position…,.”
The learned author further opines:-
“…, outside an employment relationship, the crucial
question is whether or not the person who committed the delict is subject to
another's right of control. If he is not, the position is similar to that which
obtains when an independent contractor commits a delict.”
In Tendere v Municipality of Harare 2004 (1) ZLR 495 (S), a full bench decision, this Court has held that
a judgment creditor is not vicariously liable for the actions of the Messenger
of Court and that it is only where the judgment creditor, or his attorney,
plays an active role in the unlawful attachment of the property by the
Messenger of Court and makes the Messenger's actions his own that he or his
attorney can be held delictually liable on the same basis as the Messenger.
J.R. MIDGLEY…., Lawyers Professional Liability at p 192,
has further stated:-
“…, common sense surely dictates that a client should not
be held liable for a lawyer's delicts. Whatever the rationale for vicarious
liability - be it the benefit, the identification, the solvency or the risk
theory, or social convenience and rough justice – justifications applicable to
employment relationships do not apply with equal force in cases where persons
obtain professional services. In most instances, the rationale for vicarious
liability is to provide the injured plaintiff an opportunity to sue someone who
is not a person of straw: the defendant, instead of being an individual, is a
business enterprise which is capable of distributing its losses over all its
customers. The converse occurs where professional services are involved: the
person who is in the position to spread the risk is the mandatary, not the
mandator. Also, one usually engages a professional because one wishes to avoid
doing things incorrectly. One relies upon the skilled person to avert loss to
another. To hold the client liable for the conduct of the professional is
contrary to one's sense of fair play. It is neither equitable nor reasonable to
distribute the loss in such a manner, which accounts for the reluctance of
English courts to hold clients liable and Atiyah's view that such vicarious
liability is questionable.”
The learned author further comments at p 192:-
“…, the legal convictions of the community would not favour
vicarious liability in lawyer and client cases.
A client should therefore not be held liable for a lawyer's delicts.”
I am inclined to agree entirely with the above sentiments
which are, at any rate, consistent with South African case law, and, to a large
extent, our own. The position then must be that a client is not liable for the
delict committed by his legal practitioner unless he makes common cause with
such lawyer or otherwise instructs him to proceed notwithstanding an obvious
irregularity in the papers.
In the particular circumstances of this case therefore, the
onus was on the appellants to plead,
and prove, wrongfulness in the sense that the respondent had conducted itself
in a morally blameworthy way or otherwise made itself party to the delict….,.
THE BASIS OF THE
APPELLANTS' CLAIM
The appellants claim in the court a quo was predicated on the common cause fact that the writ of ejectment
and attachment was null and void. In the declaration and further particulars
supplied, the appellants alleged that the respondent had “wrongfully,
unlawfully, and intentionally procured the eviction of the first plaintiff from
certain premises,” and that, as a result, both plaintiffs had suffered certain
losses. The eviction was said to be “a
wrongful, deliberate and intentional affront” to the second appellant and
therefore constituted an inuria.
Although it was common cause that it was the respondent's
legal practitioner who had been at fault in failing to appreciate the
provisions of the law before instructing the Messenger of Court to evict the
first appellant, no basis was pleaded upon which the respondent would be said
to have been delictually liable for the conduct of its legal practitioner in
these circumstances. There was no suggestion that the respondent, well knowing
or realising that there was need for leave to execute to be sought and granted
first before the eviction of the first appellant, nevertheless directed its
legal practitioners to proceed in the absence of such leave. There was also no
suggestion that the respondent, aware that the writ of ejectment and attachment
was irregular, nevertheless directed its legal practitioners to proceed and instruct
the Messenger of Court to evict the first appellant….,.
Taking into account the current position of our law on the
liability of a client for delicts committed by a legal practitioner, it was
incumbent on the appellant to allege how, in the circumstances of this case,
the respondent's conduct had both been wrongful and intentional. The conduct of
the respondent would have been wrongful if its state of mind had been legally
blameworthy or reprehensible. For this purpose, wrongfulness is determined by reference
to public policy or the legal convictions of the community whilst culpa or fault is determined by reference to
whether it intended that result or foresaw the possibility of harm and whether
it should have taken steps to prevent the occurrence of such harm.
The declaration filed by the appellant in the court a quo did not indicate how, having left all
its affairs in the hands of its legal practitioner and, not having interfered
with the legal practitioner's use of discretion in any way, the respondent's
conduct would have been considered wrongful. Nor was there any indication in
the papers as to how, in these circumstances, the respondent's conduct could be
said to have been intentional or even negligent.
From the facts of this case, it is clear that the
appellants were labouring under the misapprehension that, once the fact was
established that the legal practitioner was acting on behalf of the respondent
and the legal practitioner had unlawfully instructed the Messenger of Court to
evict the appellants, then the appellants did not need to prove anything else.
In this they were clearly wrong.
Whilst, as already noted earlier in this judgment, a legal
practitioner provides professional legal services on behalf of a client, the
client is not, in our law, liable in delict for any wrongs committed by the
legal practitioner in the course of providing such services unless the client
himself also commits a delict in the process.
Indeed, the court a quo
was at pains to point out that “proof of fault would have required evidence
of more than wrongfulness or unlawfulness…,” and that “there was no evidence
before the court that proceeding to evict the first plaintiff on the back of
two court orders was an unreasonable manner to proceed on the part of the defendant.”
In the absence of an averment and evidence that the
respondent had done more than just brief its legal practitioner, neither
wrongfulness nor culpa were alleged or proved. In short, in the
absence of such averment the appellants had no cause of action.
DISPOSITION
It is clear that the appellants had no cause of action
against the respondent in the absence of an allegation and proof that the
respondent had done more that instruct its legal practitioners to handle its
affairs. The respondent's conduct, in enlisting the services of its legal
practitioner to secure the eviction of the first appellant, was not wrongful.
In the circumstances, the appeal must fail. It is
accordingly ordered as follows:-
“The appeal be and is hereby dismissed with
costs.”
