Brief Summary

Negligence — Professional negligence — Prescription of claim — Plaintiff's claim against the Road Accident Fund prescribed due to defendant's failure to timely lodge the claim — Plaintiff alleging professional negligence by her attorneys for not submitting her claim — Court determining the date of prescription and whether the claim against the attorneys had also prescribed — Defendant's special plea upheld, finding that the claim against the attorneys became prescribed prior to the summons being served.

Comprehensive Summary

Summary of Judgment

1. Introduction

This was a civil action in the Gauteng Division of the High Court, Johannesburg, in which the plaintiff, Ntsoke Maria Mahlasela, sued the defendant, Klopper Jonker Incorporated (a firm of attorneys), for payment of R1 550 000.00 together with interest and costs. The claim was framed as a damages claim arising from alleged professional negligence by the defendant in failing timeously to lodge or submit the plaintiff’s claim to the Road Accident Fund (RAF), with the result that the RAF claim prescribed.

The defendant raised a special plea of prescription to the plaintiff’s claim against the attorneys, relying on the Prescription Act 68 of 1969. The defendant pleaded that the plaintiff’s cause of action against it arose during or about November 2012, and that because summons was served in April 2016, the plaintiff’s claim against the defendant had itself prescribed.

By agreement between the parties, and pursuant to a court order granted on 14 August 2020, the trial proceeded on a separated basis so that the issue of prescription was determined first, before any merits or quantum issues.

The dispute concerned the time at which prescription began to run against the plaintiff in relation to her claim against the defendant attorneys. In practical terms, it turned on when the plaintiff (through her representative) had the requisite knowledge contemplated by section 12(3) of the Prescription Act of the identity of the debtor and the facts from which the debt arose.

2. Material Facts

A motor vehicle collision occurred during May 2004 in which the plaintiff and one Mr J V Machava were passengers and sustained injuries. The plaintiff’s brother, Mr N Mahlasela (the driver), was killed in the collision. During or about August 2004, the plaintiff, Mr Machava, and the deceased’s widow (referred to in the judgment as Elizabeth) approached the defendant firm of attorneys for advice on potential RAF claims.

It was common cause at trial that, in their dealings with the defendant, the plaintiff, Mr Machava, and Elizabeth were assisted and represented by another brother of the plaintiff, Mr Meshak Mahlasela. It was also common cause that the plaintiff sustained injuries in the collision, and that the plaintiff’s claim against the RAF prescribed five years after the collision, namely during May 2009.

The defendant’s evidence was that a claim was lodged with the RAF on behalf of the plaintiff during April 2007, but that the plaintiff’s file later could not be located. The defendant’s position was that during 2012 it repeatedly advised Mr Meshak Mahlasela that the plaintiff’s file could not be found, and that he should consult another attorney to consider a claim against the defendant arising from the plaintiff’s RAF claim having prescribed.

A key factual dispute related to when Mr Meshak Mahlasela was introduced (by the defendant’s director, Mr Ungerer) to attorney Mr Francois Du Toit to pursue a possible claim against the defendant. Mr Ungerer’s evidence was that this introduction occurred by no later than January 2013, and in the context of advising that the plaintiff’s RAF claim had prescribed and that steps should be taken against the defendant. Mr Meshak Mahlasela’s evidence-in-chief initially located this introduction at 25 April 2013, linking it to a letter Mr Du Toit wrote to Natalspruit Hospital on that date seeking medical records.

The court treated the timing of this introduction, and the content of what was communicated at that stage (specifically, that the plaintiff’s RAF claim had already prescribed and that a claim against the defendant should be pursued), as central to determining when the plaintiff acquired the necessary knowledge for prescription purposes.

3. Legal Issues

The central legal question was whether the plaintiff’s claim against the defendant attorneys had prescribed under the three-year prescription period applicable to “any other debt” in section 11(d) of the Prescription Act. This depended on when prescription began to run in terms of section 12(1) and section 12(3) of the Act.

More specifically, the court was required to determine whether the defendant had proved that the plaintiff had, prior to 16 April 2013, the requisite actual knowledge (or alternatively deemed knowledge) of the identity of the debtor and of the facts from which the debt arose, so that the “debt” was “due” and prescription commenced running.

The dispute involved a combination of factual determination and application of law to those facts. The legal framework was common cause, but the case turned materially on factual findings concerning knowledge and timing, resolved through an assessment of credibility, reliability, and probabilities.

4. Court’s Reasoning

The court set out the governing statutory provisions. Under section 12(1) of the Prescription Act, prescription begins to run “as soon as a debt is due”. Under section 12(3), a debt is not deemed due until the creditor has knowledge of the identity of the debtor and the facts giving rise to the debt, subject to the proviso that knowledge is imputed if it could have been acquired by reasonable care. The court accepted that the plaintiff’s claim against the defendant fell within section 11(d), attracting a three-year prescription period.

In identifying what must be known to trigger prescription, the court emphasised that prescription does not require knowledge of all evidence; it is sufficient that the creditor has knowledge of the minimum facts necessary to institute action. The court treated this as the relevant threshold for knowledge in section 12(3).

On the evidentiary onus, the court stated that the defendant bore the full evidentiary burden to prove that the plaintiff had actual or deemed knowledge prior to 16 April 2013. The court then narrowed the central factual inquiry to the time at which Mr Meshak Mahlasela, acting on the plaintiff’s behalf, was told that the plaintiff’s RAF claim had prescribed and was referred to another attorney to pursue a claim against the defendant.

To resolve the irreconcilable versions on this timing question, the court applied the conventional approach to factual disputes, considering credibility, reliability, and the probabilities, as articulated in the cited authority on factual resolution.

The court found Mr Meshak Mahlasela to be a poor and unreliable witness. It highlighted significant inconsistencies between his evidence-in-chief and his evidence under cross-examination and re-examination, including concessions that he may have met Mr Du Toit in 2012, and difficulty contradicting the possibility that the introduction occurred during December 2012 or January 2013. The court also noted deviations from what was pleaded and what had been put to the defendant’s witness, including shifting versions about when the file was reported missing and whether he was told the RAF claim had prescribed.

Mr Du Toit was regarded as having made a favourable impression and as making appropriate concessions. However, the court considered his evidence on the introduction date to be of limited assistance because, while he linked the matter to 25 April 2013, he accepted that it may have been earlier and could not exclude an introduction in December 2012 or January 2013.

By contrast, the court found Mr Ungerer to be a credible witness whose version remained consistent under cross-examination, who answered directly, and who made concessions where warranted. The court also accepted as significant that, on any version, it was Mr Ungerer who referred Mr Meshak Mahlasela to Mr Du Toit in circumstances where prescription against the defendant could not yet have been a motivating factor, thereby reducing any apparent reason for fabrication.

In addition to credibility, the court relied on the probabilities. It noted that Mr Machava’s claim was common cause settled on 30 August 2012, and that by November 2012 Mr Meshak Mahlasela had repeatedly been told the plaintiff’s file could not be located. The court considered it improbable that the matter would have been allowed to drift without decisive communication until late April 2013, given the ongoing contact and the admitted inability to find the file. It also found it highly improbable that the advice that the RAF claim had prescribed, the referral to Mr Du Toit, and the generation of the relevant letter would all have occurred on the same day.

On the basis of these credibility and probability findings, the court accepted the defendant’s version that by no later than January 2013 Mr Meshak Mahlasela had been advised to consult another attorney, had been introduced to Mr Du Toit, and had been advised that the plaintiff’s RAF claim had prescribed. The court treated the plaintiff as having acquired knowledge through Mr Meshak Mahlasela, who at all material times assisted and represented her in dealings with the defendant.

Having found actual knowledge by January 2013, the court held that the “debt” was due within the meaning of section 12(1), and that prescription commenced running at that stage. In those circumstances, the court found it unnecessary to address the defendant’s alternative case founded on deemed knowledge.

5. Outcome and Relief

The court upheld the defendant’s special plea of prescription. It concluded that the plaintiff’s claim against the defendant had prescribed because prescription began running by no later than January 2013, and summons was served only in April 2016, outside the three-year period.

The plaintiff’s action was dismissed. The court ordered the plaintiff to pay the defendant’s costs.

Cases Cited

Macleod v Kweyiya 2013 (6) SA 1 (SCA)

Stellenbosch Farmers' Winery Group Ltd v Martell et Cie 2003 (1) SA 11 (SCA)

Legislation Cited

Prescription Act 68 of 1969 (sections 11(1)(d), 12(1), and 12(3))

Rules of Court Cited

No rules of court were cited in the judgment.

Held

The court held that the defendant proved that the plaintiff had actual knowledge, by no later than January 2013, of both the identity of the debtor (the defendant attorneys) and the material facts giving rise to the claim (that the plaintiff’s RAF claim had prescribed due to the defendant’s failure to act timeously). Consequently, prescription began to run by that date under sections 12(1) and 12(3) of the Prescription Act.

Because the applicable prescription period was three years under section 11(d), and summons was served in April 2016, the plaintiff’s claim against the defendant had prescribed. The defendant’s special plea was upheld and the plaintiff’s action was dismissed with costs.

LEGAL PRINCIPLES

A debt prescribes after the lapse of the period prescribed in section 11(d) of the Prescription Act where the claim falls within “any other debt”, which is a period of three years.

In terms of section 12(1) of the Prescription Act, prescription begins to run when the debt is “due”. Under section 12(3), the debt is not deemed due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises, subject to imputed knowledge where such knowledge could have been acquired by exercising reasonable care.

For purposes of section 12(3), it is not necessary that the creditor know all evidence relevant to the claim; knowledge of the minimum facts necessary to institute action is sufficient to trigger the running of prescription.

Where material factual disputes arise on issues such as knowledge and timing, the court resolves them by assessing credibility, reliability, and the probabilities, applying the established approach to mutually destructive versions.

Mahlasela v Klopper Jonker Incorporated (2016/11734) [2020] ZAGPJHC 249 (13 October 2020)