During August 2011 PAS Attorneys of Ermelo approached Leander
Opperman to take over a case of professional negligence against the
previous attorneys of one of his clients. The attorney in question
allowed claims against the RAF to prescribe.
Our clients were Mrs Middel (previously Mrs Combrink) the spouse
of a deceased person ( who was killed in an MVA in May 2000) and JP
Combrink, the deceased's eldest son.
Briefly, the facts of the case were as follows:
1. On 5 May 2000, Mrs Middel's deceased husband,
Mr Combrink ("the deceased") was involved in a motor
vehicle collision, wherein he collided with a timber log situated
in the middle of the road, which then caused him to lose control of
his motor vehicle and overturn.
2. Our clients approached their attorney to institute
a claim for loss of support, on behalf of the deceased's spouse
and the three children, two of which were minors, against the
3. Upon lodging the claim with the RAF, the attorney
received a letter from the RAF repudiating the claim based on the
argument that the deceased's own negligence caused the
collision.The attorney lodged claims with the RAF in time,
but failed to timeously have summons served on the RAF. As a
result, all four claims for loss of support prescribed.
4. We took over the action against the attorney for
professional negligence shortly before the trial a the end of
5. At the same time PAS Attorneys, who were acting on
behalf of Mrs Middel's two minor children, instituted a claim
against the attorney based on the grounds of professional
negligence as well as a claim against the RAF. The RAF filed
a special plea raising the allegation that the RAF was not liable
for the two minors' claims as both of the minors' claims
had prescribed, based on the fact that this was an unidentified
6. By January 2013 all of the above matters had been
consolidated and proceeded to trial on 21 May 2013. Melissa
Croft assisted Leander in preparing the matter for trial.
7. The issue of merits was hotly contested and
certainly not without risk.
8. The problems that we faced going to trial on
merits were briefly that:
8.1 The driver of a motor vehicle travelling in
front of the deceased's vehicle confirmed in his SAPS statement
that he saw the timber log lying in the middle of the road and was
able to avoid the collision. He also confirmed that he attempted to
contact the deceased to warn him about the log, to no avail.
8.2 The front seat passenger in the
deceased's motor vehicle, Mr Prinsloo, also confirmed in his
SAPS statement that he saw the timber log in the middle of the road
and tried to warn the deceased but could not do so in time.
8.3 The onus to prove that the timber log which
was present in the middle of the road, due to the negligence of an
unidentified driver, who failed to secure the timber log to his
motor vehicle, thereby causing the deceased to collide with the
log, was on our clients.
9. The court nevertheless found, that the only
reasonable inference to be drawn, in the absence of any objective
facts to the contrary, was that the timber log fell off an
unidentified truck, due to the sole negligence of the unidentified
driver. Prior to judgement the insurers for the attorney in
question also offered to settle the claims against their client for
a substantial sum. The clients instructed us to settle with their
previous attorney and the capital is expected at the end of
10. The matter is proceeding against the RAF on a
constitutional argument, which we are not involved in.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Generally, Garnishee proceedings is done in two different stages. The first stage is for the garnishee order nisi, while the second stage is for the garnishee order absolute.
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