Asked by Linda55600 on 01-07-2023 12:03:02
Question posted in the General Law category relating to Western Cape

Dear Sir/Madam

A Glass company did some work for us (we are a small building company) but there were quite a few defects so we gave them oppurtunities to rectify but they ignored us, we then with advise from our attorney got a third party to repair defects which we advise them we would be doing. After work done by 3rd party there was balance outstanding to Glass company of R28000 which we would pay on receipt of a glass certificate . The Glass company then proceeded to summons us for the full amount R76000 we where holding back due to defects 

 We then put in our defence with counterclaim which was formally accepted by them (Plaintiff) 4 months later, on their formal acceptance Plaintiffs attorneys applied for a Notice of Acceptance of Defendance Tender Rule 17(5) in which they gave us 10days to pay the balance of R28000 outstanding.  After 10days they then applied for a Notice of Application in Terms of Rule60(2) read with R17(5) application to Compel compliance with R17(5) in which they allowed us 10days to file an answering affidavit, this was then made a court order with us having to pay interest on R28000 plus plaintiffs costs ,plus now still more costs a almost a year down the line trying to get the Glass Certificate -  

Our attorney did not advise us of above Applications, she only advised us 6 days before it was made a court order. Have asked her twice as to above but she keeps evading the question.  

Further information relating to Question:

Our attorney did not advise us timeously of above applications against us, so what recourse do we have if any?

Posted by Att. Patrick on 02-07-2023 12:43:35

Hi there and thank you for your question,

I am a practicing attorney based in South Africa and I will assist you with your question. Please feel free to ask as many follow up questions in order to clarify your question. If you have a new question, you must please open a new thread.

Please keep in mind that our discussions is for general information purposes only. Our engagement on this website does not create an attorney-client relationship. 

You will be able to hold your attorney liable for any damages that you have suffered as a result of any negligence on their behalf.

However, in this situation, you tendered payment of the R28k which would have surely had an interest component built into it. So if the tender was eventually accepted, then surely the court order would have been - R28k plus interest plus costs. 

If that's exactly what the eventual court order was, then what additional damages have you suffered? Surely you are in the same financial position as before? You have paid the R28k plus interest plus legal fees - which are always a part of a tender. 

So I'm not too sure what you want to hold your attorney liable for? Perhaps you can explain a little more?

Surely it would have been silly to oppose the application, if the application was essentially for the same thing as that which you've tendered already?

Hi, The Plaintiff accepted R28000 as settlement nothing more, there was to be an exchange of glass certificate for payment. But the Plaintiffs attorney put in the Notice of Acceptance of Defendants Tender that we are to pay the amount of R28000 giving us 10days to comply . Our attorney did not make us aware of this Then an Application to Compel and gave 10days to give notice if we intended to oppose . Our attorney did not advise us of this
So if we had been given the opportunity to oppose we of course would have
But now there has been 8 months of writing letter etc trying to get the Glass Certificate which is well over R10000 plus we had to pay interest on R28000 plus Plaintiffs costs.
We would think this could have been avoided if we were given an opportunity to defend.
Is this seen as negligence on the part of our attorney

Posted by Att. Patrick on 02-07-2023 20:12:44

So then it sounds as if the tender which your attorney made might have been slightly badly worded, and it should have been conditional upon the glass certificate being provided in return. It sounds like maybe the tender was an open tender, and that's why the glass company's attorney accepted the tender, then demanded that you perform in terms thereof.

So yes, it sounds like your attorney was negligent in this regard.  I think that you are right, that if your attorney had told you about it, you would have opposed their application on the basis that the tender was a conditional tender. It could have saved interest and definitely costs. 

Your attorney could have also written to them to say "hang on, the tender is conditional. It is not an open tender. Please tender the certificate in return."

I think what you should be doing is to lay a complaint against your attorney with the legal practice council. I think that your attorney should also be refunding your the legal fees paid, for the bad advice, and the poor service. That would be a start. 

I think that it would be seen as negligence because a prudent attorney should have explained the entire situation to you! 

Hi, i did lay a complaint with the Law Society, have not received an answer to date as they gave her until 14 August , but the attorney is now demanding full payment of her account. Can she now sue us for payment ?

Posted by Att. Patrick on 13-08-2023 20:20:08

If she is demanding payment of her account, what you can do is to insist that she submits her account to the Taxing Committee at the Law Society to have her account taxed. Only then can she sue you for payment. You could have multiple defences to her claim. You'll need to raise all of them in your plea (defence statement) which you file at court - if she does sue you.