Schoombee v Marais

The appellant, an attorney, represented the respondent in divorce proceedings against her former husband. The divorce was settled on terms that the husband would pay R600 000 in a lump sum, the respondent would waive any maintenance claim, and the husband would contribute R15 000 towards costs. After the divorce order was granted, the respondent sued the attorney in the Transvaal Provincial Division for damages, alleging breach of contract and professional negligence. She claimed that he negligently advised her to settle on the basis that the marriage was out of community of property and to accept the settlement without properly investigating the value of her husband’s assets, particularly his farming properties. The trial court found the attorney liable for failing to advise her to pursue a Rule 43 application to obtain funds for a valuation and awarded her R1.1 million in damages. The attorney appealed to the Supreme Court of Appeal.

The appeal was upheld with costs. The order of the court a quo was set aside and replaced with an order dismissing the respondent’s action with costs.

The case clarifies the approach of South African courts to professional negligence claims against attorneys, particularly the distinction between an error of judgment and actionable negligence. It reinforces the requirement that a plaintiff must prove causation and actual loss, and limits the application of the loss of a chance doctrine in professional negligence cases.