South African law is based on the stare decisis rule which means that we are bound in law by earlier decisions of our courts on similar matters.
It is therefore, in most instances, satisfying when we as lawyers create new law, with your court case getting reported. Surely so when you were on the winning side.
“In the earlier days lawyers alone had to bear the risk of an unsuccessful outcome of court case”
When I started practicing there was no Contingency Fee Act that permitted lawyers to have an interest in the outcome of a court case. It was on the contrary highly unethical to have such an interest. Since the enactment of the Act, an attorney may consider the feasibility of a claim and on an assessment of reasonable chance of success, contract with the client to take a percentage of the ‘winnings’, not exceeding twenty five percent.
In the earlier days lawyers alone had to bear the risk of an unsuccessful outcome of court case or else discourage the impecunious client to proceed if the outcome was not a surety. Courts are now much more accessible to litigants than in those earlier days.
Our firm had taken on some interesting cases in those earlier days where we were not sure about the outcome thereof in an attempt, at least, to give our client a chance on compensation. One of these was the reported matter of Grobler v SANTAM.
Our client collided with a dead horse in the road at night that was hit by another driver earlier that same night. The MMF (predecessor to the RAF) then had insurance companies administering the claims. One condition of such a claim was that it should result from ‘..the negligent driving or other unlawful act by the driver or owner of a motor vehicle..’
We conceded that the driver who collided with the horse was not negligent by colliding with the horse at night. Our argument was that our client’s claim should be based on the other possibility of ‘another unlawful act’ being that of said driver leaving the horse in the road thereby creating a foreseeable dangerous situation for other road users. The court accepted our argument and marked the decision to be reported. We were probably as excited as our client.
A few years later our firm once again created law in the matter of BP Prinsloo v MMF, by challenging the ‘contact condition’ in third party claims. Up to then it was a condition for a successful third-party claim, where the insured driver was unknown, that there should have been contact between that vehicle and the claimant’s vehicle. In other words, where a negligent driver forced a claimant off the road, without making contact with his vehicle, such claimant was left without recourse.
Our challenge was quite technical in that we argued that the regulations to the act were ultra vires to the act itself, as far as the contact condition is concerned. Regulations to an act should not restrict the wording of the act itself. The matter went on to the then Appellate Division where we came out with flying colors.
“We were probably as excited as our client.”
Despite my choice of script in my master’s degree, being the constitutionality of access to information, we were sent home tail between the legs, on this very issue by the Constitutional Court in the matter of Van Wyk v Unitas. We were trumped by an experienced opponent who argued that we had enough information to pursue the claim and that any additional information would constitute early discovery.
This matter was also reported and for obvious reasons not our best claim to fame.
The funny side of all these reported cases is that we have used this last reported case against us many a time since then in our favour. On the other hand, we have never used the other two reported cases to further arguments subsequently.