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[2011] ZAGPJHC 136
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Mpato v Hlatswayo-Mhaise Incorporated (2010/28156) [2011] ZAGPJHC 136 (14 October 2011)
REPORTABLE
SOUTH GAUTENG HIGH COURT, JOHANNESBURG
CASE NO: 2010/28156
DATE:14/10/2011
In the matter between:
GABRIEL
MPATO
..................................................................................
Plaintiff
And
HLATSWAYO-MHAISE
INCORPORATED
.......................................
Defendant
J U D G M E N T
Summary
Prescription
– Party’s knowledge of the facts upon which a claim to be
founded - Neither counsel’s opinion nor
a judgment by a court
constituting such facts – Knowledge of wrong not a fact but a
conclusion of law.
WEPENER, J
:
[1] This matter comes before me
as a stated case. The common cause facts are:
“
1. On
21 January 2004 the Plaintiff mandated the Defendant as follows: -
1.1 To
file a claim for damages/loss of income against CBRTA (“the
third party”);
1.2 The Plaintiff had a five
year renewable employment contract
with CBRTA;
1.3 On 27 July 2004 it will
be three years since the Plaintiff’s unfair dismissal and as
such, prescription should be avoided.
2. The Defendant failed to
issue summons within the prescribed period, i.e. 27 July 2004,
thereby rendering the Plaintiff’s
claim unenforceable in law.
3. During
September 2004 counsel gave an opinion that according to him, the
claim had not prescribed on 26
th
of July 2004, which opinion was communicated to the Plaintiff.
4. On
the 9
th
of November 2004 a damages claim was instituted on behalf of the
Plaintiff on the High Court of South Africa.
5. On
the 8
th
of June 2010 the North Gauteng High Court upheld the plea of
prescription against the Plaintiff.
6. The Plaintiff had
appointed his current attorneys of record in respect of the
CBRTA-matter during June 2005.
7. The
Plaintiff lodged a complaint against the Defendant with the Law
Society on the 30
th
of June 2005 and filed an affidavit in this regard, a copy of which
is attached hereto. It is common cause that the Plaintiff made
the
allegations as contained in the affidavit under oath.
8. The
prescription period in this instance is three years. The summons was
served on the Defendant on the 17
th
of August 2010.
9. The
Plaintiff was aware of the identity of the Defendant on the 27
th
of July 2004.
10. The
Plaintiff was aware that the claim against the CBRTA will prescribe
on 27 July 2004.
11. The
Plaintiff has terminated the mandate with the Defendant when he
instructed his current attorneys in June 2008.
”
[2] The affidavit referred to in
para 7 contains the following allegation “
I
specifically instructed this attorney to ensure that the matter does
not prescribe. He however failed to pursue the mandate as
instructed,
and in a grossly negligent manner: - caused the matter to prescribe.
”
[3] It is against this background
that the parties wish me to pronounce on the plea of the defendant
that the plaintiff’s
claim against him has become prescribed.
[4] Relying on
Truter
& another v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA) and in particular on para 16-20 and the
subsequent judgment in
Mpinga
v Makakuvhule
(2011)
ZAGPJH116, the defendant argued that all the facts upon which a claim
against it can be founded were known to the plaintiff
by no later
than 27 July 2004 when the failure to issue and serve a summons on
the third party occurred. The only relevant fact
pursuant to which a
claim could be established against the defendant was the failure of
the defendant to serve a summons on the
third party. The plaintiff’s
counsel was unable to advance any other facts which could be relevant
in order for the plaintiff
to institute a claim against the
defendant.
[5] The plaintiff, however,
argued that one of the factors required in order to assert and
enforce a claim against the defendant
was the question of the
defendant’s negligence which “fact” the plaintiff
only had knowledge of on 8 June 2010
when a court upheld a plea of
prescription against the plaintiff in his case against the third
party. I do not agree with this
argument. In
Truter
it was said at para 16-20:
“
[16]
I am of the view that the High Court erred in this finding. For the
purposes of the Act, the term "debt due" means
a debt,
including a delictual debt, which is owing and payable. A debt is due
in this sense when the creditor acquires a complete
cause of action
for the recovery of the debt, that is, when the entire set of facts
which the creditor must prove in order to succeed
with his or her
claim against the debtor is in place or, in other words, when
everything has happened which would entitle the creditor
to institute
action and to pursue his or her claim.
[17]
In a delictual claim, the requirements of fault and unlawfulness do
not constitute
factual
ingredients
of the cause of action, but are
legal
conclusions
to be drawn from the facts:
"A
cause of action means the combination of
facts
that
are material for the plaintiff to prove in order to succeed with his
action. Such facts must enable a court to arrive at certain
legal
conclusions regarding unlawfulness and fault
,
the
constituent elements of a delictual cause of action being a
combination of factual and legal conclusions
,
namely a causative act, harm, unlawfulness and culpability or fault"
(emphasis added).
[18]
In the words of this Court in
Van
Staden v Fourie
:
"Artikel
12(3) van die Verjaringswet stel egter nie die aanvang van verjaring
uit totdat die skuldeiser die volle omvang van
sy regte uitgevind het
nie. Die toegewing wat die Verjaringswet in hierdie verband maak, is
beperk tot kennis van 'die feite waaruit
die skuld ontstaan'."
[19]
"Cause of action" for the purposes of prescription thus
means:
".
. . every fact which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to the
judgment of
the Court. It does not comprise every piece of evidence which is
necessary to prove each fact, but every fact which
is necessary to be
proved."
[20]
As contended by counsel for Drs Truter and Venter, an expert opinion
that a conclusion of negligence can be drawn from a particular
set of
facts is not itself a
fact
,
but rather
evidence
.
As indicated above, the presence or absence of negligence is not a
fact; it is a conclusion of law to be drawn by the court in
all the
circumstances of the specific case. Section 12(3) of the Act
requires knowledge only of the material facts from which
the debt
arises for the prescriptive period to begin running – it does
not require knowledge of the relevant legal conclusions
(ie that the
known facts constitute negligence) or of the existence of an expert
opinion which supports such conclusions.”
The plaintiff’s knowledge
that the conduct of the defendant caused him loss, (the failure to
serve a summons) was gained on
27 July 2004. The affidavit attested
to by him on 1 July 2005 supports this conclusion and as he was then
already aware that his
claim against the third party had become
prescribed. The knowledge of the facts i.e. failure to serve a
summons on the third party,
is to be distinguished from the knowledge
of a wrong, in a sense of culpability, which does not constitute a
fact but is a conclusion
of law. See
Truter
para 20.
[6] The summons was served on the
defendant more than three years after the plaintiff obtained
knowledge of the causative conduct
of the defendant, the latter date
which is 27 July 2004. In the circumstances the plaintiff’s
claim has become prescribed
against the defendant.
[7] Mr Moshoane, appearing for
the plaintiff, argued that this approach is incorrect and that the
date when the judgment regarding
prescription was given i.e. 8 June
2010 is the relevant date. For this argument Mr Moshoane relied on
Eskom v Bojanala
Platinum District Municipality & another
2003 JDR0498 T. The reasoning of Moseneke J (as he then was), it was
argued, was that, at best for the party in that matter, the
party had
knowledge of the facts from which the debt arose when judgment was
granted by a court. I am of the view that the court
did not determine
the precise date of prescription in that matter but employed an
arbitrary date to illustrate the latest date
upon which the party
indeed had the requisite knowledge of the relevant facts. The Court
did not find that the date of the judgment
and consequent legal
certainty was the date when the running of prescription had
extinguished the claim.
[8] Indeed, Moseneke J (as he
then was) held in
Eskom
as follows at p15-16:
“
In
my view, there is no merit in the contention advanced on behalf of
the plaintiff that prescription began to run only on the date
the
judgment of the SCA was delivered. The essence of this submission is
that a claim or debt does not become due when the facts
from which it
arose are known to the claimant, but only when such claimant has
acquired certainty in regard to the law and attendant
rights and
obligations that might be applicable to such a debt. If such a
construction were to be placed on the provisions of section
12(3)
grave absurdity would arise. These provisions regulating prescription
of claims would be rendered nugatory and ineffectual.
Prescriptive
periods would be rendered elastic, open ended and contingent upon the
claimant's subjective sense of legal certainty.
On this contention,
every claimant would be entitled to have legal certainty before the
debt it seeks to enforce becomes or is
deemed to be due. In my view,
legal certainty does not constitute a fact from which a debt arises
under section 12(3). A claimant
cannot blissfully await
authoritative, final and binding judicial pronouncements before its
debt becomes due, or before it is deemed
to have knowledge of the
facts from which the debt arises.”
I
respectfully agree with this conclusion and the date when the court
upheld the question of prescription of the claim is irrelevant
to the
plaintiff’s claim.
[9] Insofar
as the plaintiff attempted to rely on the fact that counsel’s
opinion was obtained during September 2004 in order
to argue that the
claim had not become prescribed, I am of the view that such opinion
can be of no relevance regarding the determination
of the material
facts, which existed for the institution of the plaintiff’s
claim. Counsel’s opinion, in my view, falls
in the same
category as the expert opinion obtained in
Truter,
which
does not form part of the material facts.
[10] Mr
Moshoane finally argued that by supplying the opinion of counsel to
the plaintiff, the defendant prevented the plaintiff
from obtaining
knowledge of the relevant facts. I disagree. The plaintiff knew full
well that his claim would become prescribed
against the third party
on 27 July 2004 and attested to an affidavit on 1 July 2005 where the
fact that the claim had become prescribed
is set out by him. If the
opinion of counsel could play any role, and I am of the view that it
could not, the plaintiff was, despite
counsel’s opinion, aware
that the claim had become prescribed, at best for the plaintiff, on 1
July 2005 when the affidavit
was attested to and his claim based on
the attorneys’ failure to issue the summons against the third
party would have become
prescribed three years later, on 30 June
2008. Counsel’s opinion, having been obtained during September
2004 would in any
event have the effect that prescription would run
its course at the latest, at the end of September 2007. Summons was
served well
outside the three year prescription period thereafter,
namely 17 August 2010.
[11] In
all the circumstances I find that the plaintiff’s claim against
the defendant has become prescribed. The plaintiff’s
claim is
dismissed with costs.
W L Wepener
JUDGE OF THE HIGH COURT
ATTORNEY
FOR PLAINTIFF:
........................
MR
MOSHOANE
INSTRUCTED
BY:
..........................................
MOHLABA
& MOSHOANE INC
COUNSEL
FOR DEFENDANT:
......................
ADV
D J COMBRINK
INSTRUCTED
BY:
..........................................
BENNETT
FRANCIS & MAITIN INC
DATE OF
HEARING:
......................................
13
0CTOBER 2011
DATE OF
JUDGMENT:
..................................
14
OCTOBER 2011