Attorneys are creatures of instructions. As such, they are required to obtain the instructions of their clients in discharging their functions and may not act outside the scope of those instructions. This issue was recently considered in the matter of Molefinyana Molisaesi v Selwyn Brian Drobis Jacobs and Another (Case No: 35459/2018) ZAGPPHC (7 April 2026).
The matter arose from a motor vehicle accident in which twin brothers, Molefinyana and Molefe Molisaesi, both aged 13, sustained injuries. Molefinyana, initially represented by his father due to his minority at the time, subsequently lodged a claim for compensation against the Road Accident Fund (RAF). To this end, Molefinyana's father signed a power of attorney (the POA), authorising the defendant, a firm of attorneys, to act on his behalf in pursuing the claim against the RAF. The POA authorised the defendant to settle the claim "in his own discretion".
The RAF settled the claim for ZAR 38 000, inclusive of a cost contribution, after the plaintiff attained majority. After the claim was settled, the plaintiff sued the defendant for negligence in handling the claim alleging that it was settled without a mandate and for an inadequate amount. The defendant, in turn, issued a third-party notice against the plaintiff's father.
In assessing the evidence, the court found that the injuries sustained by the plaintiff's twin brother had been incorrectly attributed to the plaintiff for purposes of the RAF claim. It further found that the defendant had breached the terms of his mandate and negligently discharged his obligations by, amongst other things: (i) failing to properly consult with the plaintiff and his father; (ii) failing to lodge a claim accurately reflecting the plaintiff's injuries (and not those of his twin brother); (iii) relying on incorrect facts in considering the offer from the RAF, resulting in the under-settlement of the plaintiff's claim; and (iv) failing to obtain a POA from the plaintiff, who had attained majority prior to the settlement, a fact which was or must have been known to the defendant. Consequently, the defendant was held liable for the difference between the loss which the plaintiff may prove to have suffered arising from the accident and the sum of R30 000, being the capital portion of the RAF settlement.
In relation to the third-party notice against the plaintiff's father, who denied ever accepting the offer of settlement, the court found that the defendant could not rely on the alleged consent to settle given at a time when the father was no longer entitled to give such consent. There was no evidence that the plaintiff had authorise his father, after attaining the age of majority to continue representing him in the claim. The third-party claim against the plaintiff's father was accordingly dismissed.
On costs, the court mulcted the defendant with costs on the attorney and client scale. The court found that such an order was justified as the defendant had, at various times, failed to uphold the honour and dignity of the attorneys' profession to diligently and scrupulously discharge his duties to his client. This conduct warranted the expression of the court's disapproval by way of a punitive costs order. The court also expressed some doubt as to whether the authorisation given to the defendant to settle the case "in his own discretion" was morally justifiable.
The judgment is a timely reminder that in the midst of running a demanding practice, attorneys should ensure that they are properly instructed when discharging their obligations and should maintain proper records of their communications with their clients.
