About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Eastern Cape High Court, Port Elizabeth
SAFLII
>>
Databases
>>
South Africa: Eastern Cape High Court, Port Elizabeth
>>
2017
>>
[2017] ZAECPEHC 19
|
|
Kelbrick and Others v Nelson Attorneys and Another (2645/2011) [2017] ZAECPEHC 19 (2 March 2017)
NOT
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case
no: 2645/2011
Date
heard: 16
th
November 2016
Date
delivered: 2
nd
March 2017
In
the matter between:
LEONIE
LOGIE
KELBRICK
First Plaintiff
ANTONIUS
GERHARDUS VAN DEN BERG
Second Plaintiff
MARGIE
VAN DEN BERG
Third Plaintiff
vs
NELSON
ATTORNEYS
First
Defendant
PIERRE
KITCHINGS ATTORNEYS
Second Defendant
JUDGMENT
TSHIKI
J:
[1]
In this matter the three plaintiffs herein have sued the defendants
claiming damages arising from an alleged breach of a duty
of care.
[2]
On the 4
th
September 2006, the plaintiff concluded a written agreement of
sale with a developer known as Status Homes in terms of which
the
plaintiffs sold their immovable properties situated in Cosmos Street,
Westering to Status Homes. In terms of the agreements,
the
plaintiffs’ properties and the immovable property of one
Jonker
would
be transferred to Status Homes, and would be consolidated into one
property and townhouses would be constricted on the consolidated
property. And
in
lieu
of
payment Status Homes would construct dwellings for the plaintiffs’
in the development on the consolidated property.
[3]
In order for the construction of townhouses on the consolidated
property to proceed the following had to occur:
[3.1]
the property would have to be re-zoned in order to allow for a
development of the following nature:
[3.2]
the consolidation would have to take place;
[3.3]
certain restrictive conditions reflected in the title deed of the
property would have to be removed.
[4]
The Nelson Mandela Metropolitan Municipality consented to the
re-zoning of the properties of the plaintiffs on the 28
th
June 2006 subject,
inter alia
, to the following conditions:
[4.1]
that the properties had to be consolidated;
[4.2]
the restructure conditions referred to in [3.3] above being removed.
[5]
The properties of the plaintiffs and that of
Jonker
were transferred to Status Homes on the 27
th
July 2007 and, simultaneously, were consolidated.
[6]
The defendant, on behalf of Status Homes, launched an application for
the removal of the restrictive conditions contained in
the title deed
of the consolidated property.
[7]
In the founding affidavit it was stated, on behalf of Status Homes
that it was its intention to proceed with a townhouse development
on
the consolidated property pursuant to the abovementioned
application a provisional order was granted on the 15
th
July 2008, returnable on the 26
th
August 2016.
Mr
Nelson
of the defendant attorneys deposed to an affidavit in the
abovementioned application describing his actions to give effect to
the provisional order obtained.
[8]
Mr
Nelson
states that
“
certain
restrictions appearing in the Title Deed of the consolidated property
need to be removed in order for our client to proceed
with the
development.”
This
letter is indicative of an intention by Status Homes, on the 13
th
August 2008, to still continue with the development.
[9]
In paragraph 23 of their particulars of claim the plaintiffs plead
that the defendant owed them a duty of care, in the following
terms:
“
23.
By virtue of the defendant drafting the agreements Annexures “LLK1”
and
“LLK2” hereto and acting as conveyancer with
instructions to attend to the transfer of the properties of the
plaintiffs
to the close corporation in terms of annexure “LLK1”
and “LLK2” hereto, the cancellation of the bonds of
the
property over the first plaintiffs’ property as consolidated
with other immovable properties and the defendants’
appointment
as conveyancer to attend to the transfer of the completed units in
the development to the respective plaintiffs, the
defendant owed the
plaintiffs a duty of care.”
[10] In its response to
the plaintiffs’ particulars of claim, the defendants on the
merits they denied that it negligently
breached the duty of care.
In addition, the defendant also raised a special plea of prescription
which is crouched as follows:
[10.1] the summons
was served on the defendant on the 1
st
September 2011;
[10.2] the
properties were transferred to the developer on the 27
th
July 2007;
[10.3] by the 27
th
July 2008 (that is, a year later), it must have been apparent to the
plaintiffs that no construction was going to commence and
that the
developer was in material breach of the Memoranda of Agreement and
that they would suffer material damages as a result
of the breach;
[10.4]
as at the date of transfer, there was no further duty of care on the
defendant and any relevant act on the part of
the defendant would
have had to occur prior to the 27
th
July 2007 (the date of transfer).
[11]
For that reason, by the 27
th
July 2008 the plaintiffs had a completed cause of action. They
had three years from this date to issue summons which should
have
been issued on or about the 26
th
July 2011. However, the summons was only served on the
defendant on the 1
st
September 2011. According to the defendant the claim against it
had prescribed. In the alternative the defendant pleaded
that
the claim became prescribed on the 3
rd
September 2011, the Memoranda of Agreement between the plaintiffs and
the developer having been signed on the 4
th
September 2006.
[12]
With a view to proceed with the issue of prescription which was
allegedly prescribed the defendant had to prove the prescription
of
the claim of the plaintiff.
Mr
Jooste
who appeared for the defendant, called the evidence of
Mr
C.A. Nelson
to prove the prescribed plea of the plaintiffs. There was no
representative for the second defendant,
Messrs
Pierre Kitchings Attorneys
.
By the 27
th
July 2008, a year later, it must have been clear to the plaintiffs
that no construction was going to commence. And that the
developer was in material breach of the Memoranda of Agreement.
It was, therefore, clear that they would suffer material
damages as a
result of the breach of contract. By the 27
th
July 2008, the plaintiffs had a completed cause of action and that
the three years from this date to issue summons which should
have
been issued on or about the 26
th
July 2011, but have not been issued as yet. The summons were
only served on the defendant on the 1
st
September 2011 by that time it was, therefore, become prescribed.
In the alternative, the defendant pleaded that the claims
became
prescribed on the 2
nd
September 2009.
[13]
Another problem facing the plaintiffs is that the agreements were
subject to the following conditions precedent set out in
clause 2 of
the Agreement.
[14]
During the trial the defendant raised a special plea of prescription
and the special plea was based on the following facts:
[14.1]
the plaintiff has issued out of the above Honourable Court on the
29
th
August 2011 a combined summons which was thereafter
served on the defendant on the 1
st
September 2011;
[14.2]
the properties as set out in this action and in the particulars of
claim were transferred to the purchaser, States
Homes, on the 27
th
July 2007;
[14.3]
by the 27
th
July 2008 it must have been apparent to the plaintiffs that no
construction was to commence and that Status Homes were in material
breach of the agreement and that the plaintiffs would suffer damages
as a result of their delay. Therefore, the defendant
would have
no further duty of care. The defendant therefore has argued
that by the 27
th
July 2008 the plaintiffs had a completed cause of action which date
falls prior to a period calculated as three years before the
combined
summons was issued. The plaintiff has not taken any action
until the lapse of at least three years before it has
filed its
combined summons. It, therefore, follows as contended by the
defendants that the plaintiffs claim has not instituted
action
against the defendants until the claim has prescribed.
[15]
In view of the fact that the defendant has filed a special plea of
prescription which, in my view, has merit, I agree
with the
defendant that the plaintiffs’ claim has since prescribed.
The defendants’ alternative view and contention
is that the
plaintiffs’ claim had become prescribed on the 3
rd
September 2009 for the reasons that the agreements “LLK1”
and “LLK2” signed on the 3
rd
September 2006 having been signed on the 4
th
September 20006 have since prescribed.
[16]
in terms of
section 11(d)
of the
Prescription Act 68 of 1969
a
contractual debt is completely extinguished after the expiry of the
prescription period for that debt. According to
Christie’s
Law of Contract in South Africa
17
th
ed by
GB
Bradfield:
“
the
complete extinction of the obligation has the effect that, unlike the
position under the previous legislative dispensation no
natural
obligation remains and the extinguished debt cannot be resurrected by
an acknowledgement of liability (see
ATB
Chartered Accountants (SA) v Bonfiglio
2011 (2) ALL SA 132
(SCA)).
[17]
In my view, the special plea is dispositive of the plaintiffs’
action in that the plaintiff did not issue summons against
the
defendant until the expiry of three years which the plaintiff has
been aware of. A creditor shall be deemed to have such
knowledge if he or she could have acquired it by exercising
reasonable care (
Minister
of Finance and Others v Gore NO
2007
(1) ALL SA 309
(SCA)). In our case, the plaintiffs have been
aware or at least were expected to have been aware of the debt long
before
it prescribed but they decided not to take action until the
debt had prescribed.
[18]
In the result, I am of the view that the plaintiffs’ claim has
prescribed and therefore they cannot succeed in their
action.
[19]
Therefore, the plaintiffs’ claim is dismissed with costs.
_________________________
P.W.
TSHIKI
JUDGE
OF THE HIGH COURT
For
the plaintiff
: Adv
Ronaasen
Instructed
by
:
Roelofse Meyer Inc
PORT
ELIZABETH
Ref:
L. Meyer/et/K1027
For
the defendant
: Adv
Jooste
Instructed
by
: Joubert
Galpin & Searle Inc
PORT
ELIZABETH
Ref:
S Munshi/ATT1/0058