Professional Negligence

“I slept, and dreamed that life was Beauty; I woke, and found that life was Duty.” – Ellen Hooper (1816 – 1841)

The Supreme Court of Appeal recently had to evaluate the conduct of the conveyancing attorney of a seller of immovable property. There had been certain errors and mistakes which resulted in a considerable delay for bonds to be cancelled, as a result of which claims for damages were instituted.

Appeal Judge eric leach who delivered the judgment pointed out that not every act which causes harm to another gives rise to an action for damages. The act complained of must be wrongful. That was conceded, so the court simply had to look at whether the conveyancing attorney had been negligent.

The judge observed: “Like any other professional, a conveyancer may make mistakes. But not every mistake is to be equated with negligence, and if a claim against a conveyancer is based on negligence, it must be shown that the conveyancer’s mistake resulted from a failure to exercise that degree of skill and care that would have been expected by a reasonable conveyancer in the same position.” 

He went on to point out that of course the gravity and likelihood of potential harm will determine the steps, if any,  which a reasonable person should take to prevent such harm occurring. Moreover, the more likely the harm the greater is the obligation to take such steps. no hard and fast rules can be prescribed. each case is to be determined in the light of its particular facts and circumstances. “But in the case of a conveyancer, it is necessary to remember that any mistakes which may lead to a transaction in the Deeds Office being delayed will almost inevitably cause adverse financial consequences for one or other of the parties to the transaction. … To avoid causing such harm, conveyancers should therefore be fastidious in their work and take great care in the preparation of their documents. Not only is that no more than common sense, but it is the inevitable consequence of the obligations imposed (by the Deeds Registries Act of 1937 and its Regulations) which oblige conveyancers to accept responsibility for the correctness of the facts stated in the deeds or documents prepared by them in connection with any application they file in the deeds office.” 

Judge leach concluded that the conveyancer had acted negligently. The potential of harm caused by a delay in the event of the application for cancellation of the bonds being defective was “obvious”. That harm could have been simply averted. The standard of care exercised “fell well short of what is expected of a reasonable conveyancer.” The judge expressed a critical view of this conduct. He said that “ . . . the inference is irresistible” that the conveyancer failed to check the documents. This evidenced “a slothful approach to the important task of ensuring that documents accord with the deeds office’s current practices and requirements.” He said that the excuse offered “is lame in the extreme.”

Margalit v. Standard Bank of South Africa Ltd & Another [2013] 2 All SA 377 (SCA). 

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