Lawyers in Court, but Not as Lawyers

In recent days, two lawyers have featured in the Small Claims Courts – not as commissioners but as litigants.

One, an advocate of the Cape Bar, launched a pain-and-suffering claim on behalf of his teenage son, but failed to research the small-claims structure and had his claim thrown out. The other, also an advocate and member of the Cape Bar, was mistakenly sited as the defendant in a claim for the refund of a deposit, and this case, also, was thrown out – on a technicality.

Jasper Tredoux got the short end of the stick when he claimed R7000 for pain and suffering, on behalf of his teenage son who had had a mishap on his bicycle.

However, because claims for pain and suffering require complex medical evidence and skilled cross-examination, they are categorised as “too complex” for the small claims system (see the four essentials of winning in the how-to-win link).

His son had gone for a ride with a friend on a neglected municipal footpath that was overgrown with long grass and weeds.

He had come to grief when his cycle struck a concealed mound, which sent him sprawling. On behalf of his son, Mr Tredoux accused the Tygerberg division of the City of Cape Town of negligence, alleging it had failed in its duty of care to ensure the footpath was safe for both pedestrians and cyclists.

Unfortunately, it was not to be an easy ride in court for father and son – the City of Cape Town disputed negligence, and handed the case to their lawyer, Werner Welgemoed, of the Bellville firm Bornman & Hayward.

Although Mr Welgemoed informed the Bellville small claims administration that the case was not suited for the Small Claims Court, it was nevertheless placed before Commissioner Conradie .

Mr Conradie agreed with his colleague Welgemoed, promptly declared the case unsuitable, and stopped the proceedings.

If Mr Tredoux wishes to pursue the claim, he will have to take it to the ordinary but costly civil court.

In the second case, Wesley Vos went to court to clear his name after being mistakenly sited as the defendant in a dispute about the refund of a R3100 damages deposit.

In the how-to-win link, claimants are warned to ensure that they site the correct person as the defendant – get this wrong, and your claim gets thrown out.

Claimant Donald Honeyman’s lease contract clearly gave the landlord’s name as the Point Terrace Trust, which later became the Wesjan Trust, named after Wesley and his wife Janine However, the Vos couple had engaged a letting agent to deal with their property, while they remained uninvolved.

Ideally, the small claims staff should have ensured that the Wesjan Trust was sited as the defendant – and not Mr Vos personally – but the staff are not trained lawyers. In this case the small claims clerk in fact incorrectly advised Mr Honeyman to site Mr Vos as the defendant.

Mr Vos, himself a former small claims commissioner, was present when the case was called before Commissioner Louis Conradie.

However, the purpose of his presence was not to fight the case, but to inform the court that he was incorrectly sited as the defendant. This meant the claim, as against Mr Vos, had to be dismissed, as Mr Conradie explained to the Honeymans.

Not too enchanted, Mr Honeyman lamented that a bedroom was badly stained when he and his wife moved in, and the agent had made them “many promises”.

The commissioner said now was not the time for Mr Honeyman to present his case, and that he could do so later when he returned to court with the correct defendant. But Mr Honeyman blurted: “We have tried for many months to get hold of Mr Vos – I wish he had just given us the opportunity to speak to him.”

Mr Vos responded: “”I’ve been brought to court today, and I ask the court to dismiss the claim, as it stands against me personally.”

Mr Honeyman now has to start from scratch again, against the correct defendant. If the case is again placed on the roll, it is likely that Mr Vos will return to court, this time as representing the Wesjan Trust.

However, the technicality could easily have been avoided, and the case adjudicated there and then, merely by Mr Vos consenting to the name of the defendant on the summons being changed from Vos to the Wesjan Trust.

Unfortunately no one suggested this simple solution.