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[2021] ZAECPEHC 49
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Julies v Peter McKenzie Attorneys (1117/2019) [2021] ZAECPEHC 49 (7 September 2021)
REPORTABLE
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION, PORT ELIZABETH
Case No.: 1117/2019
Date Heard: 10-12
August 2021
Date
Delivered: 7 September 2021
In
the matter between:
TARQUIN
JULIES
Plaintiff
and
PETER
McKENZIE t/a PETER McKENZIE
ATTORNEYS
Defendant
JUDGMENT
EKSTEEN
J:
[1]
To
the plaintiff, Mr Tarquin Julies, the problem with the law has been
lawyers. On 6 December 2008 he was shot in the face
by a member
of the South African Police Service (SAPS) with a shotgun. In
consequence thereof, he lost one eye and all vision
in the other.
He instructed Masimla Attorneys (Masimlas) in Gqeberha to institute
action against the Minister of Police (the
Minister) for damages,
which he had sustained in consequence of the injuries suffered in the
shooting. Masimlas accepted
the mandate, but failed to deliver,
and they permitted the claim to prescribe. He thereafter
instructed the defendant, Peter
McKenzie Attorneys (McKenzies) in
Gqeberha to issue summons against Masimlas for damages, which he had
sustained in consequence
of the prescription of his claim against the
Minister. They, too, accepted the mandate, but Mr Julies
contended that they
also permitted his claim against Masimlas, to
prescribe. Hence, the present claim against McKenzies for
damages arising from
the prescription of the plaintiff’s claim
against Masimlas.
[2]
At
the commencement of the trial, by agreement between the parties, I
ordered that the issue of McKenzies’ alleged liability
to Mr
Julies be separated from the remaining issues in the matter.
Consequently, in these proceedings, three issues arose
for
adjudication. Firstly, whether the shooting of Mr Julies was
wrongful and unlawful (the first issue). Secondly,
whether
Masimlas had negligently permitted the claim against the Minister to
prescribe (the second issue) and, thirdly, whether
McKenzies had
negligently permitted the plaintiff’s claim against Masimlas to
prescribe (the third issue).
[3]
Mr
Julies, who was 25 years old at the time of the shooting, is an
unsophisticated man who had grown up in the northern suburbs
of
Gqeberha where he had successfully completed Grade 7 at school.
He terminated his education due to financial constraints
and he holds
no other qualification. He lived with his mother at 104 Anita
Drive in Gelvandale, Gqeberha (his home) and he
said that he had been
employed as a handyman before the shooting.
[4]
On
Saturday, 6 December 2008, Mr Julies and a few friends had been
drinking at his home when two unmarked police vehicles arrived
and
parked in the street, approximately in front of his home. Two
policemen in civilian clothes alighted from the cars whilst
at least
one, identified as Sergeant De Maar, remained in one of the police
vehicles. The two policemen entered his home.
It is
unclear what they did inside, but, shortly after entering they again
emerged and proceeded to walk down the driveway to their
cars.
Mr Julies, standing outside in front of his home, demanded an
explanation for their conduct inside the house and, as
he did so, one
of his friends threw a beer bottle at the police, which struck one of
their vehicles. Mr Julies said that
Sergeant De Maar had then
alighted from the vehicle carrying a shotgun and shot at him, without
uttering a word. He was struck
in the face, which instantly
rendered him unconscious and he only regained consciousness in
hospital. Mr Julies is unaware
of the events that occurred
immediately after the shooting, but three of his friends were
subsequently arrested and charged of
public violence, assault and
malicious injury to property. Although the incident was
investigated and a police docket (the
docket) prepared the charges
were ultimately withdrawn.
[5]
Mr
Julies, as I have said, instructed Masimlas, early in 2009, to
institute proceedings against the Minister. He had known
Mr
Masimla, who had assisted him previously in legal matters, before
these events. Mr Julies testified that Mr Masimla had
told
him that this was a big case and that it would take very long.
Although he met with Mr Masimla two or three times
per annum after
the initial instruction Mr Masimla never explained the delay.
Rather, Mr Masimla always assured him that
he was still busy with the
case and that he would instruct an advocate to assist him. Mr
Julies had no knowledge of litigation
and he said that he trusted Mr
Masimla.
[6]
As
adumbrated earlier, Mr Julies lost one eye, which had to be
surgically removed, and all vision in the other. He had to
undergo numerous surgical procedures from 2009 to 2015 in an
endeavour to save his eyesight. All these procedures were
conducted
in the Provincial Hospital in Gqeberha at State expense
save for the final procedure in October 2015, which was done at the
Eye
and Laser Clinic, a private institution in Gqeberha.
[1]
Because it was a private institution, he was concerned that they may
look to him for payment. He, accordingly, contacted
Mr Masimla
to enquire about funds. Mr Masimla did not provide him with a
satisfactory response and, he said, he went to see
him when he was
discharged from hospital in November 2015. To his dismay, Mr
Masimla told him that he is not pursuing any
claim on his behalf and
that he has no file in respect of such litigation. Thus, Mr
Julies said, he first discovered that
Mr Masimla had not prosecuted
his claim. He could not believe it.
[7]
After
the lapse of some time, he said three months, he was advised to
approach the SAPS Civil Litigation Centre at Mount Road Police
Station (Mount Road) to verify that no claim had been lodged in his
name.
[2]
A police captain
at Mount Road handed to him a written note confirming that no claim
had been instituted in his name and
advised that he should see an
attorney. Accordingly, on 15 August 2016 he instructed
McKenzies.
[3]
Mr Julies
handed the handwritten note, which he had received at Mount Road, to
Mr McKenzie.
[8]
There
was some dispute between the parties as to the instructions that had
been given to Mr McKenzie. Mr Julies said that
he had told Mr
McKenzie of his meeting with Mr Masimla in November 2015 when he was
advised that Masimlas had not prosecuted his
claim. He also
told him that he had been to Mount Road to confirm this fact.
Mr McKenzie denied, however, that he was
advised of the meeting in
November 2015. He said that Mr Julies had instructed him that
he had first learnt of Mr Masimlas
failure when he attended at Mount
Road on 11 July 2016. He accordingly contended that
prescription of the claim against Masimlas
started to run on 11 July
2016.
[4]
I shall revert to
this issue.
[9]
Mr
Julies’ relationship with McKenzies, too, was not fruitful.
By December 2019 he had lost faith in Mr McKenzie and
he approached
his current legal representative, Mr Skelton, and terminated
McKenzies’ mandate. Mr Skelton’s endeavours
to
obtain a copy of McKenzies’ file rendered very little success.
All that he ever received were two letters from Masimlas,
which
evidenced their acceptance of the mandate given to them. Mr
McKenzie testified that he also had a copy of a contingency
fee
agreement signed by Mr Julies on 15 August 2016, which had been
misfiled, and that was provided to Mr Skelton at a pre-trial
conference shortly before the trial. He candidly admitted that he had
never obtained a power of attorney from Mr Julies and he
said that
the remainder of the contents of his file, including all the file
notes that he had, had been lost. The loss of
the file content
occurred, he said, when he moved offices at the end of August 2017.
He explained that his brother-in-law
helped him to carry files when a
gust of wind blew the content of several files away. They
retrieved all the documents that
they were able to gather, but some
were beyond their reach. The note received from Mount Road,
dated 11 July 2016, Mr Julies’
hospital cards and all
McKenzies’ file notes were among the documents that were lost.
When he was pressed under cross-examination,
Mr McKenzie acknowledged
that he had not attended to the file at all after August 2017.
[10]
I
turn to consider the merits of the plaintiff’s claim. In
respect of the first issue, the defendant admitted that Mr
Julies had
been shot by Sergeant De Maar, but denied that it had been wrongful
and unlawful. They pleaded:
“
2.1 …
according to the police, the plaintiff was part of a group of guys,
who unlawfully
attacked the police on 6 December 2008 by throwing
dangerous objects such as empty bottles directly at Sergeant H De
Maar and his
colleagues.
2.2 Upon
being struck with a bottle, Sergeant H De Maar used reasonable and
necessary force to
defend himself against the plaintiff and his group
of assailants by firing a shot with his shotgun.”
[11]
Mr
Ford
,
on behalf of McKenzies, argued that there was an obligation on Mr
Julies to adduce credible evidence in order to sustain the viability
of his claim against the Minister. The argument proceeded that
his evidence was inconsistent, improbable and lacking in credibility
and that I should be hesitant to accept it. Mr Julies, as I
have explained, is an unsophisticated man of modest education
who has
suffered greatly over an extended period and was testifying to events
which occurred more than 12 years before. It
is true that his
evidence was not without blemish, however, I did not form the
impression that he attempted to mislead me.
It was, as I have
said, admitted that Sergeant De Maar had shot him and that the
criminal proceedings against his friends relating
to the alleged
public violence, assault and malicious injury to property were
withdrawn. He was never charged. The
inconsistencies in
his evidence on the issue of the shooting were of little or no
consequence and, in the absence of evidence to
the contrary, I do not
consider that his evidence was not worthy of acceptance.
[12]
In
any event, a shooting, like every other infringement of the bodily
integrity of another, is
prima
facie
unlawful. Thus, whereas the shooting of Mr Julies was admitted,
the onus to establish the excuse or justification, in this
case
self-defence, would have rested on the Minister.
[5]
Although Mr Julies was cross-examined in respect of a statement in
the docket, allegedly made by Sergeant De Maar, De Maar
did not
testify. Accordingly, no justification for the shooting was
established. Consequently, the uncontested evidence
demonstrates a strong probability that Mr Julies’ case against
the Minister would have succeeded. The first issue must
therefore be determined in Mr Julies’ favour.
[13]
The
second issue is whether Masimlas had negligently caused Mr Julies’
claim against the Minister to prescribe and therefore
to become
unenforceable. The liability of an attorney to a client for
damages resulting from the attorney’s negligence
is based on
breach of the contract between the parties. It is an implied
term of the mandate that an attorney will exercise
the skill,
adequate knowledge and diligence expected of an average practising
attorney.
[6]
Where an
attorney falls short of this standard, he commits a negligent breach
of his mandate.
[14]
In
order for a plaintiff to succeed in a claim against an attorney he is
required to allege and prove:
(a)
A
mandate given to the attorney;
(b)
a
breach of the mandate;
(c)
negligence
in the sense of his failure to exercise the skill, adequate knowledge
or diligence expected of an average attorney;
(d)
damages,
which would generally require proof of the likelihood of success in
the aborted proceedings
[7]
; and
(e)
that
damages were within the contemplation of the parties when the
contract was concluded.
[8]
[15]
As
I have said, Masimlas accepted a mandate from Mr Julies during
February of 2009 to institute action on his behalf against the
Minister for damages sustained as a result of the shooting and they
failed to do so. However, Mr McKenzie denied that Masimlas
had
negligently permitted the plaintiff’s claim to prescribe.
[9]
He contended that during (or about) 2010/2011, and before the
prescription of the claim against the Minister, Mr Masimla
had
advised Mr Julies that he was not proceeding with his claim against
the Minister. Mr Masimla did not testify and there
was no
evidence in support of this contention. During argument before
me Mr
Ford,
correctly
in my view, acknowledged in the circumstances, that he was not able
to make any submissions in respect of that issue.
The
ineluctable conclusion to which one is driven is accordingly that
Masimlas breached their mandate in negligently permitting
Mr Julies’
claim against the Minister to prescribe by failing to commence
proceedings within three years from the date of
the shooting.
As I have demonstrated, the evidence established that the plaintiff’s
claim against the Minister had
good prospects of success and, by the
very nature of the mandate given to Masimlas, damages must have been
within the contemplation
of the parties at the time of the conclusion
of the contract in the event of the negligent prescription of the
plaintiff’s
claim. The second issue, too, must therefore
be resolved in favour of Mr Julies.
[16]
That
brings me to the third issue, the claim against McKenzies. They
admitted that, on 15 August 2016, they accepted a mandate
to proceed
with a claim against Masimlas for allowing Mr Julies’ claim
against the Minister to prescribe and that they did
not carry out the
mandate. However, McKenzies, firstly, denied that they had
negligently breached their mandate and, secondly,
contended that
their failure to issue summons was not the cause of the damages
allegedly suffered by Mr Julies.
[17]
In
respect of the first of these defences, the essential issue relates
to when prescription of Mr Julies’ claim against Masimlas
began
to run. At the heart of the dispute lies the application of s
12 of the Prescription Act, 68 of 1969 (the Act).
The material
portion of the section provides:
“
1
2
When prescription begins to run
(1) Subject to
the provisions of subsections (2), (3), and (4), prescription shall
commence to run as soon as the debt is due.
(2)
If the debtor willfully prevents the creditor from coming to know of
the existence of the debt, prescription shall not commence
to run
until the creditor becomes aware of the existence of the debt.
(3) A debt shall
not be deemed to be due until the creditor has knowledge of the
identity of the debtor and of the facts from which
the debt arises:
Provided that a creditor shall be deemed to have such knowledge if he
could have acquired it by exercising reasonable
care.
(4)
…”
[10]
[18]
It
is settled law that the party raising prescription bears the onus to
prove the date of inception of the period of prescription.
[11]
Mr Julies contended that McKenzies had permitted his claim against
Masimlas to prescribe and become unenforceable in law.
He
therefore bore this onus.
[19]
A
debt is considered to be due, as envisaged in s 12 (1) of the Act,
when it is immediately claimable by the creditor in legal proceedings
and the debtor is under an obligation to perform.
[12]
Accordingly, it was not in dispute, the “debt” arising
from the shooting was due on the date of the incident
and would, but
for s 12(2) and (3) of the Act, have been extinguished by
prescription on 5 December 2011.
[13]
Ordinarily Mr Julies’ claim against Masimlas would therefore
have fallen due on 6 December 2011.
[20]
However,
Mr Julies, reliant on s 12(2) of the Act, contended that prescription
of his claim against Masimlas only commenced to run
in November 2015
when he first learnt of Mr Masimla’s breach of his mandate.
[21]
In
response, McKenzies sought to rely on s 12(3). It was their primary
contention that by the exercise of reasonable care Mr Julies
could
have acquired knowledge of the identity of his debtor, Masimlas, and
the facts from which the debt against them arose, before
14 August
2013. Consequently, they alleged that the claim against
Masimlas had already prescribed prior to 15 August 2016
when
McKenzies accepted the mandate to act on behalf of Mr Julies.
[22]
In
the alternative, McKenzies relied on the note from Mount Road dated
11 July 2016, which was handed to Mr McKenzie at his first
meeting
with Mr Julies. McKenzies contended that it was only on 11 July
2016 that Mr Julies was advised and discovered that
Masimlas did not
prosecute the claim against the Minister. They denied, as I
have said, that Mr Julies had disclosed to them
that Mr Masimla had
already informed him in November 2015 that he had not instituted the
claim. Thus, McKenzies contended
that prescription of the claim
against Masimlas only commenced to run on 11 July 2016. As
adumbrated earlier, McKenzies’
mandate was terminated in
December 2019, less than three years thereafter. Hence, the
allegation that McKenzie’s failure
to issue summons was not the
cause of damages suffered by Mr Julies.
[23]
As
I have recorded, Mr Masimla did not testify and the only version of
the interaction between him and Mr Julies is the evidence
of Mr
Julies that he was advised that the case would take very long and
that he was repeatedly assured, until November 2015, that
the matter
was being attended to. Whilst it is a sad indictment on our
legal system, in reality, many cases do take years
to come to trial.
This is particularly so in delictual claims where the medical
condition of the victim may not have stabilised,
as the case was for
Mr Julies. In such circumstances, I am unable to find that it
was unreasonable for him to trust his legal
representative when such
assurances were given.
[24]
In
Links
[14]
the Constitutional Court said, in respect of s 12(3) of the Act, in a
medical negligence case:
“
It
seems to me that it would be unrealistic for the law to expect a
litigant who has no knowledge of medicine to have knowledge
of what
caused his condition without having first had an opportunity of
consulting a relevant medical professional or specialist
for advice.
That in turn requires that the litigant is in possession of
sufficient facts to cause the reasonable person to
suspect that
something has gone wrong and to seek advice.”
[25]
Mr
Julies did not know of the existence of the debt (i.e that his claim
had not been instituted) nor was there any reason to suspect
that
something had gone wrong before it was revealed to him in November
2015. In the absence of an explanation from Mr Masimla
one is
driven to the irresistible conclusion that his repeated assurances
were directed at willfully preventing Mr Julies from
coming to know
of the existence of the debt which arose from the prescription of his
claim.
[26]
Much
was made, during argument before me, of the evidence of Mr Julies
that he had approached Mount Road about three months after
Mr Masimla
had advised him that the claim against the Minister had not been
instituted. According to Mr McKenzie, the note
confirming the
date had gone with the wind, but he did allege that the visit to
Mount Road was on 11 July 2015 and that the note
bore that date.
Mr Julies, in a replication, admitted this. It was formally admitted
and it was not permissible for either
party to attempt to disprove
it.
[15]
However, Mr
Ford
argued
that I should find, on the strength of this evidence, that Mr Julies
was unreliable in his recall of dates and that it was
equally
probable that he may only have met with Mr Masimla in April 2016,
being three months prior to 11 July.
[27]
The
argument cannot be sustained. Mr Julies was consistent in his
evidence that Mr Masimla’s admission was made in November
2015. He recalls the date because he had had contact with Mr
Masimla while he was in hospital awaiting a procedure to be
performed
at the Eye and Laser Clinic. This was the only surgical
procedure not performed in a State hospital and it was
the only time
that he was concerned about the possible bills. Upon being
discharged from hospital in November 2015, he said,
he approached Mr
Masimla. The date of the procedure at the Eye and Laser Clinic
was established by objective evidence, in
the form of a statement of
account from the anesthetist, to have been on 20 October 2015.
As I have said, I did not form
the view that Mr Julies may be
deliberately misleading me and I consider that his evidence in this
regard is credible.
[28]
Mr
Ford
contended
further that it is improbable, if Mr Julies did obtain knowledge of
Mr Masimla’s failure in November 2015, that
he would have
waited until July 2016 to take any further steps. The lapse of
time must be considered in the context of the
proven facts of the
case. Mr Julies’ intellectual, financial and physical
constraints have been recorded earlier.
He had no knowledge or
experience of civil litigation and he explained that he only learnt
of the SAPS Civil Litigation Centre
through a friend who, in turn,
knew a lady employed by the SAPS. In these circumstances, I do
not consider this improbability,
such as it is, to be destructive to
his version. In any event, where there is direct, credible
evidence, as I have found
that there was, a court may accept such
evidence even where it conflicts with probabilities arising from
human experience or expert
opinion.
[16]
The uncontradicted evidence of Mr Julies must therefore be accepted
in respect of the meeting in November 2015. As
adumbrated
before, it was common cause that the approach to Mount Road occurred
on 11 July 2016 and, absent an amendment to the
pleadings, this fact
was not open to challenge. In the circumstances, I consider
that Mr Julies was clearly mistaken when
he said that it was three
months after he had seen Mr Masimla. His estimation is made
five years after the event, purely
from memory, and was unsupported
by any proven facts.
[29]
To
summarise, the evidence established that Mr Julies had repeatedly
been advised, before November 2015, that Masmilas was attending
to
his claim, which he had been told would take a very long time.
He trusted his attorney, as he was entitled to do.
He was
therefore unaware of the existence of the debt (ie. a claim against
Masimlas) as Mr Masimla had willfully prevented him
from coming to
know of it by his repeated assurances. Mr Julies did not
possess any facts, which might have caused a reasonable
person to
suspect that something had gone wrong
[17]
,
in this case, that his claim was not being pursued. In the
circumstances s 12(3) of the Act could not arise.
[30]
I
pause to record that when Mr Julies closed his case, Mr
Ford
applied for an order that McKenzies be absolved from the instance.
I dismissed the application and I indicated that I would
provide my
reasons for doing so in this judgment. The argument was again alluded
to at the conclusion of the trial and it is convenient
to address it
now.
[31]
It
arises from the judgment in
Gore
.
[18]
Mr Gore, in his capacity as a liquidator of a company in liquidation,
had claimed damages from the Minister of Finance and
the Western Cape
Government for the company’s loss arising from it not having
been awarded a government tender as a result
of fraud by certain
provincial administration officials. They had manipulated the
tender process in such a way as to ensure
the award of the tender to
a company in which they held an undisclosed interest. The
Minister and the Western Cape Government
raised the defence of
prescription.
[32]
When
the award of the tender was announced in April 1994, the company had
immediately suspected impropriety and cried foul.
They
repeatedly contended that the adjudication of the award process had
been tainted by fraud, but they had no factual information
to
substantiate these assertions. It was only in February of 1997
that the company found sufficient evidence that improper
means had
been used to obtain the tender and it served its summons in January
1999. The question, which arose for adjudication
was whether
the plaintiff had “knowledge” of “the facts from
which” the debt arose before 15 January 1996.
[33]
The
Supreme Court of Appeal (SCA) recognized that a company official
cried fraud soon after the tender was lost. It proceeded
to
hold:
‘
But
what did he know when he did so? The defendants’ argument
seems to us to mistake the nature of “knowledge”
that is
required to trigger the running of prescriptive time. Mere
opinion or supposition is not enough: there must
be justified
true belief. Belief, on its own, is insufficient. Belief
that happens to be true … is also insufficient.
For
there to be knowledge, the belief must be justified.’
[34]
On
behalf of McKenzies, it was contended that Mr Julies had said when he
was told in November 2015 that no claim had been instituted,
he did
not believe Mr Masimla. Thus, the argument proceeded, he had a
mere suspicion and that the “facts” from
which the debt
arose were only established on 11 July 2015 at Mount Road. I do
not consider there to be any merit in the
submission nor does it find
support in
Gore
.
Whilst it is true that belief, on its own, is insufficient without
knowledge of the facts justifying such belief, it does
not follow
that knowledge of the facts, which gave rise to the debt, without
belief, is insufficient. Section 12(3) of the Act
is not concerned
with “belief”, it relates only to “knowledge”.
The admission by Mr Masimla would have
caused any reasonable person
to think that something has gone wrong, as described in
Links
.
[19]
It triggered an obligation to obtain knowledge of the facts from
which the debt arose. Mr Julies could immediately
have
consulted any other attorney, which would have revealed the true
facts. He could not postpone the commencement of the
running of
prescription by his failure to do so.
[20]
In the result, I conclude that Mr Julies did discharge the onus of
establishing that the inception of the prescriptive period
was in
November 2015.
[35]
By
then he knew the identity of Mr Masimla, as his debtor, and he knew,
or was deemed by s 12(3) of the Act, to know that no claim
had been
instituted on his behalf. These facts were sufficient to
institute action.
[36]
Reverting
to the evidence in this matter, there was a substantial dispute as to
whether Mr Julies had in fact advised McKenzies
of his meeting with
Mr Masimla in November 2015. I do not consider that it is
necessary to resolve this dispute. Prescription
of the claim
against Masimlas began, as a matter of law, to run in November 2015
and the claim prescribed in November 2018, prior
to the termination
of Mr McKenzie’s mandate. The claim accordingly
prescribed as a result of Mr McKenzie’s failure
to issue
summons timeously. On his own admission, he was negligent in
his conduct of the matter. In two and a half
years he had never
obtained a power of attorney from Mr Julies, he did not obtain a copy
of the docket, nor any medical reports.
He acknowledged that he
had not attended to the file since the content was blown away in
August 2017. I am satisfied that
he negligently breached his
mandate and that the claim prescribed as result thereof.
[37]
Even
if Mr Julies had advised him that he first learned of Mr Masimla’s
failure on 11 July 2015, it cannot alter either the
date upon which
prescription began to run or the date of its completion. It
may, in appropriate circumstances, have founded
an estoppel.
The essence of the doctrine of estoppel is that a person is precluded
(or estopped) from denying the truth of
the representation previously
made to another if the latter, believing in the truth of the
representation, acted on the representation
to his own determent.
However, estoppel cannot arise unless it is pleaded and the
essentials thereof proved.
[21]
No estoppel was pleaded nor was there evidence to suggest that Mr
McKenzie had delayed the issue of summons relying upon
a
communication made by Mr Julies. On the contrary, the evidence,
as I have said, suggested that throughout the duration
of his
mandate, Mr McKenzie never obtained a power of attorney from Mr
Julies and, at least from August 2017 to December 2018,
he did not
attend to the file at all. In the circumstances I conclude that
the plaintiff has established that his claim against
Masimlas
prescribed as a result of the negligent breach of the mandate
accepted by Mr McKenzie.
[38]
In
the result, the following order will issue:
(a)
The
defendant is ordered to pay to the plaintiff such damages as the
plaintiff is able to prove that he has suffered in consequence
of the
shooting which occurred on 6 December 2008; and
(b)
The
defendant is ordered to pay the plaintiff’s costs of suit.
J W EKSTEEN
JUDGE
OF THE HIGH COURT
Appearances:
For
Plaintiff:
Adv D Niekerk instructed by Vic Skelton
Inc, Port Elizabeth
For
Defendant: Adv EAS
Ford SC instructed by Joubert Galpin Searle, Port Elizabeth
[1]
A statement of account from the anaesthetist
confirmed that the procedure was performed on 20 October 2015.
[2]
It is common cause on the pleadings that he in
fact attended at the Mount Road Police Station on 11 July 2016.
[3]
Mr McKenzie testified that the plaintiff first
came to see him late in July 2016. It is, however, admitted
that he accepted
the instruction from Mr Julies on 15 August 2016.
[4]
During cross-examination, Mr McKenzie was
constrained to acknowledge that he had been instructed that Mr
Masimla had admitted
his failure to Mr Julies before he went to the
Mount Road Police Station. However, he contended that Mr
Julies had said
that it had occurred a few days before 11 July 2016.
[5]
Mabaso v Felix
1981
(3) SA 865
(A),
[1981] 2 All SA 306
(A);
Minister
of Justice v Hofmeyr
[1993] ZASCA 40
;
1993 (3) SA 131
(A),
[1993] 2 All SA 232
(A); and
Moghamat
v Centre Guards CC
[2004] 1 All SA 221
(C).
[6]
Mouton v Die Mynwerkersunies
1977
(1) SA 119
(AD),
[1977] 1 All SA 242
(A);
Jowell
v Bramwell-Jones
2000 (3) SA 274
(SCA),
[2000] 2 All SA 161
(A);
Steyn
NO v Ronald Bobroff and Partners
[2012] ZASCA 184
(SCA),
2013 (2) SA 311
(SCA),
[2013] 1 All SA 471
(SCA); and
Drake Flemmer &
Orsmond Inc and Another v Gajjar NO
[2017] ZASCA 169 (SCA), 2018 (3) SA 353 (SCA), [2018] 1 All SA 344
(SCA).
[7]
Dhooma v Metha
1957
(1) SA 676 (N)
[8]
Bruce NO v Burman
[1963]
3 All SA 181 (T), 1963 (3) SA 21 (T)
[9]
The period prescription in respect of the claim,
as determined by
s 11(d)
of the
Prescription Act, 68 of 1969
, is
three years.
[10]
Subsection 12(4) relates to a debt based on the
commission of an alleged sexual offence and finds no application to
the facts
of the present case.
[11]
Gericke v Sack
1978 (1) SA 821
(A),
[1978] 2 All SA 111
(A); and
Lancelot
Stellenbosch Mountain Retreat (Pty) Ltd v Gore NO and Others
[2015]
ZASCA 37.
In terms of
s 10(1)
and
11
(d) of the
Prescription
Act the
debts, being the plaintiff’s claims, would be
extinguished by prescription after the lapse of three years in each
case.
[12]
Benson and Another v Walters
1984
(1) SA 73
(A) at 82,
[1984] 1 All SA 283
(A);
Uitenhage
Municipality v Molloy
[1997] ZASCA 112
;
1998 (2) SA 735
(SCA),
[1998] 1 All SA 140
(A); and
Trinity
Asset Debt Management Pty Ltd v Grindstone Investments 132 (Pty) Ltd
2018 (1) SA 94 (CC), 2017 (12) BCLR 1562 (CC).
[13]
Section 10(1)
and
s 11(d)
of the
Prescription
Act.
[14
]
Links v Department of Health, Northern
Province
[2016] ZACC 10
(CC),
2016 (4)
SA 414
(CC) at para
[47]
, 2016 (5) BCLR 656 (CC).
[15]
Section 15 of the Civil Proceedings Act 25 of
1965 provides: “It shall not be necessary for any party
in civil proceedings
to prove nor shall it be competent for any such
party to disprove any fact admitted on the record of such
proceedings.”
[16]
Motor Vehicle Assurance Fund v Kenny
1984 (4) SA 432
(E) at 436H, [1984] 4 All SA 454
(E).
[17]
Links
at para
[47]
[18]
Minister of Finance and Others v Gore NO
2007 (1) SA 111 (SCA), [2007] 1 All SA 309 (SCA).
[19]
Links
para [47]
[20]
Gunase v Anirudh
2012
(2) SA 398
(SCA) at para [14] and following;
Leketi
v Tladi NO and Others
[2010] 3 All SA
519
(SCA) at para [18].
[21]
Blackie Swart Argitekte v Van Heerden
1986
(1) SA 249
(A) at 260
[1985] ZASCA 107
; ,
[1986] 1 All SA 373
(A);
Absa
Bank Limited v IW Blumberg and Wilkinson
[1997] ZASCA 15
;
1997
(3) SA 669
(SCA),
[1997] 2 All SA 307
(A).