HONEY & BLANCKENBERG v LAW 1966 (2) SA 43 (R)

1966 (2) SA p43

Citation 1966 (2) SA 43 (R)

Court Rhodesia, Salisbury

Volume 2: 1 - 243 (April) http://0-ipproducts.jutalaw.co.za.wam.seals.ac.za/nxt/print.asp?NXTScrip...

36 of 648 2013/11/21 10:12 PM

Judge Goldin J

Heard November 30, 1965; December 1, 1965

Judgment January 6, 1966

Annotations Link to Case Annotations

Flynote : Sleutelwoorde

Negligence - Of attorney in execution of his mandate - What constitutes - Execution - Attachment by

garnishee order of debt 'accruing' or 'accruing due' - Meaning of in Order 47 (R) - Rent payable for

unexpired portion of a lease - Such included.

Headnote : Kopnota

B When an action is brought by a client against his attorney for negligence in the execution of his

mandate, the client must prove that there was such a want of skill or care as to amount to a

breach of contract. The test for establishing negligence is whether he has been proved to be

guilty of such failure as no attorney of ordinary skill would be guilty of if acting with reasonable

care. He will not be guilty of negligence merely because he committed an error of judgment,

whether on matters of discretion or law.

C During the subsistence of a contract of lease the rent payable for the unexpired portion of the

contract can be described as money 'accruing' or 'accruing due' within the meaning of these

words in Order 47 of the Rhodesian Rules of Court. Such accruing debt is therefore capable of

attachment by a garnishee order obtained under Order 47. D

Case Information

Action for money alleged to be due. The facts appear from the reasons for judgment.

E. J. Whitaker, Q.C., for the plaintiffs.

M. R. Tett, for the defendant.

Cur. adv. vult.

E Postea(January 6th).

Judgment

GOLDIN, J.: The plaintiff, a firm of attorneys practising in Salisbury, claims the sums of £200,

£25 5s. 5d. and £167, together with interest a F tempore moraeand costs, from defendant in

respect of taxed costs owed by defendant for professional services rendered by plaintiff. The

defendant admitted at the trial liability for all these sums but counterclaims for damages based

on alleged negligent breach of duty on the part of plaintiff in the sum of £594 1s. 7d.

G On 19th July, 1963, judgment was given in this Honourable Court in favour of defendant in an

action in which defendant successfully claimed the sum of £1,500 with interest thereon at 8%

from 1st October, 1962, and costs against Mercury Investments (Pvt.) Ltd. On 22nd July, 1963,

plaintiffs, acting as defendant's attorneys; in which capacity they also acted on behalf of

defendant in the said trial, wrote to the attorneys H acting for Mercury Investments (Pvt.) Ltd.

(to which I will hereinafter refer to as 'the company') demanding the immediate payment of the

sum of £1,500 together with interest and costs, and concluded by saying

'that we have specific and direct instructions to take all necessary steps for payment, including
execution

without delay unless payment is made forthwith'.

No payment was received and defendant commenced garnishee proceedings against certain

tenants occupying property owned by, and constituting

1966 (2) SA p44

Volume 2: 1 - 243 (April) http://0-ipproducts.jutalaw.co.za.wam.seals.ac.za/nxt/print.asp?NXTScrip...

37 of 648 2013/11/21 10:12 PM

GOLDIN J

the main asset of, the company. Each of these tenants was in occupation of a portion of the

company's property in terms of a long lease whereby each was liable to pay rent monthly in

advance on the 1st day of each A month. Mr. Rosettenstein, a partner of the plaintiff, was the

person responsible for the earlier litigation and for the conduct of defendant's garnishee

proceedings. Mr. Rosettenstein issued and served process in terms of Order 47 of the High Court

Practice and Procedure Act, on 1st August, 1963, to garnishee rents payable by the said tenants.

In terms of Order 47, Rule 3, not less than 7 days' notice must be given and Mr. Rosettenstein

set the matter down on the 15th August, B 1963. By letter dated 7th August, 1963, to Mr.
Rosettenstein from Messrs. Coghlan, Welsh & Guest, a firm of attorneys, he was informed that

they had received instructions from three debenture holders to obtain a provisional order of

liquidation against the company on 15th August, 1963, On this date such order was granted on

the grounds that C the company was unable to pay its debts. On the same day, the Judge who

granted the provisional order of liquidation against the company postponed the hearing of the

garnishee proceedings and directed the garnishee to pay rents due by them to the Registrar so as

to preserve the position until the matter could be argued and until it was decided whether a final

order for winding up of the company should be made. D Further proceedings resulted in a final

order of winding up against the company and the application for garnishee orders being

dismissed.

Defendant alleges that plaintiff instituted the said garnishee proceedings

'negligently and in breach of their duty, failed to proceed with the said action timeously and, as a
sole result of

such negligence, the E defendant failed to obtain the sum of £791 15s. 1d. from the hands of the
said

garnishee'.

In reply to a request for particulars as to what it was alleged plaintiff should have done and failed

to do, the defendant replied on 26th November, 1965, as follows:

'1. The plaintiff should have issued and served process in terms of Order 47 of the High Court Rules
immediately

after the judgment was given in favour of the defendant against Mercury Investments (Pvt.) F Ltd.,
and in the

circumstances should have given the respondents the minimum notice in terms of Order 47, Rule 3.

2. The plaintiff should have consulted counsel as to the meaning of the word 'accruing' in Order 47,
Rule 1.

3. In any event, the plaintiff should have given the respondents only the minimum notice necessary
in terms of

Order 47, Rule 3, in the motion proceedings which he caused to be issued and served to attach the
rents.'

G While there is a dispute of fact between the parties concerning the time and nature of the

instructions given by defendant to Mr. Rosettenstein, with which I will deal later, it is possible to

summarise the dispute relating to the alleged negligence of the plaintiff at this stage. The

defendant contends that, even before the trial and judgment H of 19th July, 1963, he informed
Mr. Rosettenstein that the company was having difficulty in meeting its liabilities and it was

contemplated that, if defendant succeeded in his action against the company, he would attach the

rents due by the company's tenants by way of garnishee proceedings. On 19th July, 1963,

judgment was given at about 1.15 p.m. and then, in a discussion with defendant's counsel, the

latter advised defendant and Mr. Rosettenstein to garnishee these rents as soon as possible.

Defendant went on to allege that he immediately instructed Mr. Rosettenstein

1966 (2) SA p45

GOLDIN J

to 'go after the rents' and, if he required any assistance, to obtain it from defendant's counsel.

Defendant contends that if a garnishee order was obtained in terms of Order 47 before 15th

August, 1963, it would have constituted an effective attachment of rent and would not have been

rendered nugatory by the order for the winding up of the company on 15th A August, 1963. At

this stage I should point out that proceedings of this nature are normally set down on any

Thursday in term in Salisbury. Accordingly, it was submitted, if plaintiff had served the notice of

motion for the attachment of rent at an earlier date then the matter could have been set down at

least on 8th August and an effective order for the attachment of rent would have been obtained

before the winding B up of the company so that such order of winding up would not have

frustrated the garnishee proceedings.

Volume 2: 1 - 243 (April) http://0-ipproducts.jutalaw.co.za.wam.seals.ac.za/nxt/print.asp?NXTScrip...

38 of 648 2013/11/21 10:12 PM

Mr. Rosettenstein said that he was aware that the company was in financial difficulties and an

application for its winding up could be expected but that he interpreted the words 'any money

due or accruing to the judgment debtor', or the words 'the debt alleged to be due or C accruing

due to the judgment debtor' in Order 47, as meaning that the rents, payable in advance on 1st

August, 1963, were not subject to attachment and no action could be commenced for their

attachment until 1st August, and accordingly he served the notice on 1st August. Since he D had

to give at least seven days' notice to the respondent, he could not set the matter down in the

normal and usual manner on 8th August and therefore set it down on the first Thursday after the

expiration of seven days, namely, on 15th August. In reply, defendant contends that, firstly, Mr.

Rosettenstein misinterpreted the meaning of the words 'accruing due' and that, upon a proper

construction, it was possible to seek to attach rents payable on the 1st of August on any day
before that E date. Secondly, that Mr. Rosettenstein should not have relied upon his own

interpretation of these words and should have sought counsel's opinion, as he was entitled to do

at his discretion. If he had done this, counsel would most probably have given him the correct

interpretation of these words and he would have commenced proceedings F earlier so that the

order to attach rents would have been made at least on 8th August and before an order for the

winding up of the company. In any event, it was contended by defendant that, even if after

setting the matter down for 15th August, once Mr. Rosettenstein was informed in the said letter

dated 7th August of the intention to apply for the winding up of the company on 15th August, he

should have anticipated the date of G set down. The suggestion being that as it is always possible

to apply for an order upon a certificate of 'urgency' given by counsel, the imminence and effect of

an application for winding up of the company on 15th August would have justified counsel in

granting, and the Court in acting upon, such a certificate and the matter would have been set

down, H and disposed of, upon fresh notice to the respondents, on a date before 15th August. In

respect of the latter contention it was argued for plaintiff that the Court would not have heard an

application on notice of motion as a matter of urgency in these circumstances, and that, even if

the procedure suggested by defendant to anticipate 15th August was possible, Mr. Rosettenstein

was not guilty of negligence or of breach of duty in not having adopted such a course.

1966 (2) SA p46

GOLDIN J

Before dealing with the allegation of negligence, I refer to the dispute of fact which exists before

me. Mr. Rosettenstein pleaded that he A obtained specific instructions to commence garnishee

proceedings on 29th July, 1963. He denied certain discussions alleged by defendant and in

particular the alleged conference with defendant's counsel on 19th July. According to Mr.

Rosettenstein, no such conference or discussion took place as alleged or at all. On careful

consideration, I find it impossible to resolve the dispute of fact that exists between the parties.

There is no aspect of demeanour and there are no probabilities B which make it possible to

accept one version as more probable or as truthful. Accordingly, and perhaps there is no vital

dispute of any great relevance, I proceed to deal with the allegations of negligence on the basis

of such facts as are common cause or can be found to have been the position. Firstly, that Mr.

Rosettenstein appreciated from the time C he began to act for defendant against the company

that there was a 'real danger' of the company being would up because it was in financial
difficulties. Secondly, by reason of the professional relationship that existed between him and

defendant, the former was entitled to obtain counsel's opinion wherever he deemed this to be

necessary. Thirdly, that he considered it his duty to obtain execution as soon as possible after D

judgment was obtained on 19th July. In other words, while he only decided upon garnishee

proceedings on 29th July as the best form of execution, his letter dated 22nd July, 1963, (exh. 2)

proves that he had obtained instructions

'to take steps for payment, including execution without delay unless payment is made forthwith'.

E An attorney's liability arises out of contract and his exact duty towards his client depends on

what he is employed to do. (See Charlesworth on Negligence, 4th ed., paras. 1032 - 42; Clark

and Another v Kirby Smith, (1964) 2 All E.R. 835, and Bagot v Stevens Scanlen & Co., (1964) 3

All E.R. 577). In the performance of his duty F or mandate, an attorney holds himself out to his

clients as possessing adequate skill, knowledge and learning for the purpose of conducting all

Volume 2: 1 - 243 (April) http://0-ipproducts.jutalaw.co.za.wam.seals.ac.za/nxt/print.asp?NXTScrip...

39 of 648 2013/11/21 10:12 PM

business that he undertakes. If, therefore, he causes loss or damage to his client owing to a want

of such knowledge as he ought to possess, or the want of such care he ought to exercise, he is

guilty of negligence giving rise to an action for damages by his client (see Halsbury's Laws G of

England,3rd ed., vol. 36, para. 135). It has been said that

'no attorney is bound to know all the law; God forbid that it should be imagined that an attorney, or
a counsel or

even a Judge is bound to know all the law, or that an attorney is to lose his fair recompense on
account of an

error, being such an error as a caut ious man might fall into'.

(See Montriou v Jefferys, 1825 (2) C. & P. 113; 172 E.R. 51). If an H attorney considers a point

to be difficult or doubtful he should, if instructed to do so, take counsel's opinion. If counsel's

opinion is taken and acted upon, he is generally under no liability for negligence. (See

Charlesworth on Negligence, supra). Where an action is brought by the client against his

attorney for negligence, the latter must prove that there was such a want of skill or care as to

amount to a breach of contract. The test for establishing negligence is whether he has been

proved to be guilty of such failure as no attorney of ordinary skill would be guilty of if acting with

reasonable care. He will not be guilty of negligence merely

1966 (2) SA p47

GOLDIN J

because he committed an error of judgment whether on matters of discretion or law (Halsbury's

Laws of England, supra; Lewis v Collard, 139 E.R. 86). The question therefore in this case is

whether defendant has used reasonable skill and reasonable care and diligence as stated above.

It has been held that it is difficult to define with any A precision the skill and diligence which he

undertakes to furnish in the performance of his obligations to his client. It is a question of degree

and there is a borderland within which it is difficult to say whether a breach of duty has or has

not been committed. (See Fletcher & Son v Jubb, Booth and Helliwell, (1920) 1 K.B. 275; van

Wyk v Lewis, 1924 B A.D. 438 at p. 444; McKerron on the Law of Delict, 5th ed., pp. 3 - 5, 32 -37).

The first question that arises is whether Mr. Rosettenstein incorrectly interpreted the words

'accruing' or 'accruing due' when he decided, as stated earlier, that, where rent under a lease is

payable monthly in C advance on 1st August, there was no debt accruing which could be the

subject of attachment during the month of July. I have no hesitation in saying that an

examination of decided cases relating to the meaning of these words reveals a difference of

opinion, and even some confusion, and there are convincing judgments which could justify Mr.

Rosettenstein's opinion. I do not propose to mention all the cases on this point. (See The Annual

Practice, 1965 at pp. 1091 et seq. for cases D on the meaning of the words 'all debts owing or

accruing' in the Order for Attachment of Debts in England (O. 45)). In Canada, the words

'accruing due' are contained in a similar provision and it was held in Quercetti v Tranquilli, (1941)

4 D.L.R. 63 at p. 64; Burrows, Words and Phrases, vol 1, p. 81, as follows:

'Under the Attachment of Debts Act, R.S.B.C. 1936, Ch. 17, sec. 3 (1), E all debts owing, payable or
accruing

due from the garnishee to the judgment debtor may be attached . . . The words 'or accruing due' are
to be found

originally in the Common Law Procedure Act. They were carried into the Ontario Common Law
Procedure Act and

later int o ot her Ontario stat utes. These words were the subject of many decisions in Ontario, t he
result of such

decisions I think being that the test to be applied is whether or not the judgment debtor himself
could have

brought action F against the garnishee for the money in question at the moment when the attaching
order was

served.'
Interpretation of the words 'accruing' or 'accruing due' is made more difficult upon an

examination of and a comparison with cases dealing with words bearing some similarity such as

'debts due or growing due' (see Wilmot v Alton, (1896) 2 Q.B. 254; (1897) 1 Q.B. 17), 'rent G

accrued due' (see Re Howell, (1895) 1 Q.B. 844), 'future accruing rent' (see Stroud's Judicial

Dictionary, vol. 1, pp. 31 - 33), and the words 'any debt at present or in future owing or accruing

to a judgment debtor' (which appear in sec. 72 of the Magistrates' Courts Act, 32 of 1944, as

amended, in the Republic of South Africa). (See Seegerstv. H Retreat Motors, 1953 (4) SA 422

(C), and van der Merwe v Uys, 1957 (4) SA 574 (T)).

In my opinion Mr. Rosettenstein wrongly interpreted the words in question but I do not consider

his wrong interpretation as constituting negligence, having regard to the difficulty of interpreting

these words and to what I have said concerning negligence on the part of an attorney.

Volume 2: 1 - 243 (April) http://0-ipproducts.jutalaw.co.za.wam.seals.ac.za/nxt/print.asp?NXTScrip...

40 of 648 2013/11/21 10:12 PM

It may be relevant to state that I am of the view that, during the subsistence of a contract of

lease, the rent payable for the unexpired portion of the contract can be described as money

'accruing' or 'accruing due'.

1966 (2) SA p48

GOLDIN J

If rent is payable monthly in advance on the 1st of each month, upon the rent being paid on due

date of any particular month, the rent for the unexpired period of lease payable on the 1st day of

each subsequent A month is a debt accruing due. It is an accruing debt because the amount is

payable in future by reason of a present obligation, namely, to pay rent during the subsistence of

the agreement of lease. An accruing debt is therefore a debt not yet actually payable but a debt

which is represented by an existing obligation. There is a debt arising from an obligation to pay

rent on the 1st day of each month in terms of the B agreement of lease, even if it is not yet

payable because, while the current month's rent has been paid, the obligation for the following

month's rent is to pay it on the 1st day of the following month. In such circumstances, the rent

for the following month is a debt accruing due during the current month. (See Webb v Stenton,

11 Q.B. 518, and Halsbury's Laws of England, 3rd ed., vol. 16, paras. 121 - 125).

C Defendant alleges, however, that Mr. Rosettenstein should have consulted counsel as to the

meaning of the word 'accruing' in Order 47, Rule 1. Mr. Rosettenstein says that he did not consult
counsel because he was satisfied that he had correctly interpreted its meaning and was not faced

with such difficulty as to justify the expense of seeking D counsel's opinion. He did, however,

appreciate that it was essential to commence garnishee proceedings as soon as possible because

of the likelihood of an early application to wind up the company; in which event he would 'lose

the race'. I have said that there are many authorities dealing with the meaning of the word

'accruing' and there is support for the view taken by Mr. Rosettenstein. The authorities he E

consulted could have reasonably induced his belief that he was right and that counsel's opinion

was not required. I do not think in these circumstances it can be said he was negligent. He is an

attorney of many years' experience, he applied his mind to the problem, consulted certain

relevant authorities and was satisfied that he came to the right F conclusion. The question is

really not whether he was right or wrong but whether he should have known that he might be

wrong or that the matter was too difficult for him to rely on his own opinion. His failure to adopt

this attitude cannot on the facts be considered as amounting to negligence.

If I had found that failure to seek counsel's opinion constitutes negligence, I would not be

satisfied that defendant has proved that by G taking counsel's opinion Mr. Rosettenstein would

have been in a position to commence garnishee proceedings before 1st August, or that if he had

commenced proceedings before 1st August it would have been heard before application for the

winding up of the company. It is not possible H to assume in favour of defendant that counsel's

opinion would have been different from that of Mr. Rosettenstein. It is also reasonable to suggest

that counsel might have probably expressed doubts as to what is the correct interpretation, and

defendant would have decided to avoid the risk of commencing his proceedings before 1st August

for obvious reasons arising from the fact that he was trying to obtain a garnishee order before an

expected application for winding up. Moreover, if regard is had to the time that was available,

there is no reason to assume that counsel's opinion could have been obtained sufficiently quickly

so as to be able to commence proceedings before 1st August, 1963.

1966 (2) SA p49

GOLDIN J

It is alleged that Mr. Rosettenstein was negligent in not giving the minimum notice necessary in

terms of Order 47, Rule 3. I have summarised the submissions relating to this ground of

negligence already. More than seven days' notice was given so as to set the matter down on a

Thursday A in the normal manner. I have considered the submissions and allegations on this
aspect and I am of the opinion that his failure to seek a set down on an earlier date, whether by

anticipating the date of original set down by way of 'a certificate of urgency' or otherwise, does

not amount to negligence or breach of duty. By letter dated 7th August, Mr. B Rosettenstein was

informed of the intention of certain persons to apply for the winding up of the company on 15th

Volume 2: 1 - 243 (April) http://0-ipproducts.jutalaw.co.za.wam.seals.ac.za/nxt/print.asp?NXTScrip...

41 of 648 2013/11/21 10:12 PM

August. Before 12th August, Mr. Rosettenstein had tried to persuade the attorneys concerned to

'hold their hand' and postpone their application for winding up. This appears from the letter dated

12th August, 1963, from plaintiff to defendant. I do not consider it to be negligent conduct not to

seek in C these circumstances a certificate of urgency from counsel in the hope that the Court

would hear the application for a garnishee order before the date of its original set down so as to

frustrate the effect of an expected winding-up order. But I will assume, although I doubt whether

this assumption is justified, that the Court would have heard as a matter of urgency a matter set

down for 15th August on an earlier date D for the sole reason to enable a creditor to avoid the

effect of a winding-up order in these circumstances. But, even making this assumption in favour

of defendant, I am of the view that failure by an attorney to take this course may display lack of

zeal or excessive acumen but does not amount to negligence. On the facts before me the

attorney exercised that degree of care, diligence and skill which is to E be expected of the

average practitioner.

I may add, although I have reached my decision without relying on this aspect, that even if the

matter had been set down before 15th August either in the first place or by anticipating the set

down on a 'certificate of urgency', I am not satisfied that it would have resulted F in a garnishee

order being obtained before a winding-up order. On the evidence before me, it is reasonably clear

that it was the intention of certain creditors to obtain a winding-up order before an attachment of

rents deprived the company of some of its assets. The documentary evidence, the evidence of the

parties and, in particular, that of Mr. Staples, in my view justifies this conclusion. Also, a

garnishee order G was sought, as it had to be, on notice of motion against eight tenants of the

company. Therefore the procedure, the date of set down or notice of an earlier date of set down,

would inevitably have come to the notice of other creditors. In this respect it is interesting to

note that, in the application for a winding-up order, mention is in fact made of the H garnishee

proceedings and it is very likely that the reason why Messrs. Coghlan, Welsh & Guest wrote to
Mr. Rosettenstein on 7th August was because the latter would have been interested to know that

an application for winding up would be made on the same date as defendant's application. It was

a 'race' between defendant and persons wishing to wind up the company, as to who would be first

to obtain an order. It has not been proved that if defendant had set down his action on an earlier

date, with notice to the respondents, an ex parteapplication for winding up would not have been

1966 (2) SA p50

GOLDIN J

made sooner than it was. In that event, the alleged acts of negligence, even if justified, did not

result in defendant's failure to obtain the alleged or any sum from the garnishee.

A There will be judgment for the plaintiff in the sums of £200, £25 5s. 5d. and £167, together

with interest a tempore moraeand costs of suit. The defendant's claim in reconvention is

dismissed with costs.

B Plaintiff's Attorneys: Honey & Blanckenberg. Defendant's Attorney: E. Gilbert Ford.