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Legal practitioner ” conduct and ethics ” duty of care ” duty owed by legal practitioner to third parties ” when legal practitioner liable
Legal practitioner ” duty to client ” duty to exercise professional competence and diligence ” failure to protect client's interests by serving papers on all relevant parties
The plaintiffs property was sold in execution when he failed to service a mortgage bond. The building society had instructed a firm of legal practitioners to sue the plaintiff. Default judgment was taken against the plaintiff, and the messenger of court removed the plaintiff's goods for sale. The plaintiff instructed his own legal practitioners to apply for rescission and for the sale in execution to be stayed. By consent, rescission was granted but the messenger of court was not informed; he proceeded with the sale. The plaintiff claimed for the loss from the building society and its legal practitioners, claiming that they should have advised the messenger of court. Their failure to do so constituted a breach of a duty of care they owed him.
Held, that the legal practitioners were agents of the building society.
Held, further, that a legal practitioner who is instructed by his client to carry out a transaction that will affect an identified third party owes a duty of care towards that third party in carrying out the transaction, since such a third party is a person within the legal practitioner's direct contemplation as someone who is likely to be closely and directly hurt by his acts or omissions. The legal practitioner can reasonably foresee that the third party is likely to be injured by those acts or omissions.
Held, further, that the plaintiff's own legal practitioners brought the application for rescission against, inter alios, the messenger of court. It was for them to do their duty towards the plaintiff and to protect his interests by having the papers served on the messenger. They failed to do so.
Cape Town Municipality v Paine 1923 AD 207
Halliwell v Johannesburg Municipal Council 1912 AD 659
Maketo & Anor v Wood & Ors 1994 (1) ZLR 102 (H)
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