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[2024] ZAECQBHC 3
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Barnard v Schoonraad, Delport & Van der Merwe Inc (3679/2010) [2024] ZAECQBHC 3 (23 January 2024)
FLYNOTES:
CIVIL PROCEDURE – Prescription –
Claim
against attorney
–
Plaintiff
suffering work accident and rendered unable to perform duties –
Instructing attorneys to pursue claim for
provident fund benefits
– Summons issued but action withdrawn due to pleas of
prescription – Plaintiff issued
summons against attorneys
who raised special plea of prescription – Whether
consultation with attorney clear enough
to inform him that claim
prescribed and that he had claim against attorneys due to
negligent handling of claim – Attorney
and plaintiff
uncertain about claim at that point – Cause of action arose
later – Special plea dismissed with
costs –
Prescription Act 68 of 1969
,
s 11(d).
IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN CAPE LOCAL
DIVISION - GQEBERHA
Case No:
3679/2010
In
the matter between:
ANDRḔ
BARNARD
Plaintiff
and
SCHOONRAAD,
DELPORT & VAN DER MERWE INC.
Defendant
JUDGMENT
MAKAULA J:
A.
Introduction
:
[1]
The plaintiff sought and engaged the legal services of the defendant,
which is a firm of attorneys.
The defendant accepted the
mandate but failed to issue summons timeously, as a result of which
his claim prescribed. In turn,
the plaintiff issued summons
against the defendant for damages based on the alleged failure to
properly carry out its mandate,
resulting in the prescription of the
claim. Similarly, the defendant raised a special plea of
prescription. The issue
between the parties is whether the
claim against the defendant has prescribed.
B.
Background
:
[2]
The common cause facts are that the plaintiff was employed at Cape
Produce Company (Pty) Ltd (the
Company). The plaintiff, because
of his employment became a member and contributed to the company’s
Provident Fund
(the Fund). As a member, the plaintiff was
entitled to certain benefits, of which, was compensation for injury
on duty, temporal
or permanent disablement etc. The Fund was,
underwritten by Metropolitan Life Ltd (Metropolitan Life).
[3]
On 16 July 2002, the plaintiff was involved in an accident, while on
duty, which resulted in him
experiencing poor health and rendered him
permanently disabled and unable to continue with his occupation.
On 13 March 2003,
the plaintiff consulted, Dr Ian Taylor, a
specialist psychiatrist who diagnosed him as suffering from
depression and thus unable
to perform his duties as the employee of
the company. In terms of the Fund Regulations, he was entitled
to 75% of his salary
until he reached the retirement age of 65 years.
[4]
On or about 31 July 2003, the plaintiff instructed the defendant, who
at the time was represented
by Mr van der Merwe, in his capacity as
an attorney in the employ of the defendant, to take all steps
necessary to ensure that
he received his benefits in terms of the
Fund Regulations. The mandate was accepted by Mr van der
Merwe. In carrying
out instructions against Metropolitan Life,
the defendant issued summons on 26 February 2007. Metropolitan
Life raised three
special pleas of prescription. The action had
to be withdrawn because of merit in the special pleas. The
dispute between
the parties emanated from the facts surrounding what
occurred pursuant to the withdrawal of the action against
Metropolitan Life.
[5]
On 3 December 2010, the plaintiff issued summons against the
defendant for damages alleging that
if the defendant had carried out
its mandate as a reasonable attorney would have, the plaintiff would
have been successful against
Metropolitan Life. The plaintiff
pleaded in its particulars of claim that he suffered damages because
of the breach.
[6]
In defence of the summons, the defendant raised a special plea of
prescription. The defendant
pleaded that the plaintiff was made aware
by Mr Marius Delport (Mr Delport), a director of the defendant, on 28
November 2007,
that the special plea raised by Metropolitan Life had
merit that his claim had prescribed. The defendant contended
that the
plaintiff knew or ought reasonably to have known as of 28
November 2007 that the defendant had not performed its mandate in a
proper
and professional manner. The upshot of the defence is
that the plaintiff’s claim commenced to run on 29 November 2007
and prescribed in terms of section 11 (d) of the Prescription Act
[1]
(the
Act) on 28 November 2010.
[7]
The matter served before me only for the determination of the special
plea. Both parties
led evidence, the burden of proof being on
the defendant to establish the special plea. I shall, however,
for purposes hereof,
deal with the evidence of the plaintiff first.
C.
Plaintiff’s evidence
:
[8]
Apart from the summary of facts stated above and relevant to the plea
of prescription, the plaintiff
testified that towards the end of
2007, he attended a meeting with Mr Delport who informed him that he
had taken over his file
from Mr van der Merwe, who had left the
defendant. Mr Delport informed him that the matter was not
going to proceed on the
day of trial. He could not remember
what else they discussed.
[9]
Later, whilst at a rugby field where his child was practising, he met
with Mr Huisamen, an attorney,
who had also attended a rugby practice
with his son. He told him that Mr Delport had taken over his
file. He requested
Mr Huisamen to find out from Mr Delport what
was going on in his case because he was confused, as Mr Delport had
advised him that
his case was not going to proceed on the date of
trial. On that second meeting, Mr Delport informed him
that his claim
against Metropolitan had been prescribed. He
testified as follows:
“
Yes,
that the case has prescribed and stuff, so I have asked him but how
things like that happen. So, he said no . . . and
I have asked
him when he informed me there is no case anymore. So, I have
asked him “do I owe you money”, so
he told me no and then
I
took
my file, and I left his office
”
.
(
sic
)
(My underlining). (
sic
).
[10]
The plaintiff took the file to Mr Huisamen to take “control
over the situation”. (
sic
). He, thereafter,
consulted with Mr Huisamen on numerous occasions. He could not
remember after how long on the second
occasion he saw Mr Delport.
He further could not recall meeting with Adv Gajjar.
[11]
The plaintiff was cross-examined at length about the evidence of Mr
Huisamen. He did not recall receiving
a telephone call from Mr
Huisamen wherein he informed him that the claim against Metropolitan
Life had prescribed.
[12] It
was put to him that the meeting with Mr Delport took place on 28
November 2007 to which proposition he
responded as follows:
“
I
cannot dispute it and I cannot say yes, I cannot say no, because
sorry I cannot remember that”.
He further stated:
“
No,
I cannot recall this, I am sorry. I cannot recall anything that
he said, or anybody told me in the matter . . .
I do not even
know what special pleas means”. (
sic
)
He was further asked
whether he was told that the claim had prescribed based on the
special pleas raised by Metropolitan Life, to
which he responded as
follows:
“
The
only word that I can remember is when I was at Mr Delport’s
office
and
that he informed me “daar is ‘n problem die saak het
verjaar”. That is the only stuff that I can remember,
because that is the only thing that is in my mind. . . .
They did not do the job that they had to do. That is
correct.
. . . and I took the file that day”. (
sic
)
[13]
The plaintiff called Mr Huisamen as his witness. The plaintiff
told him at the rugby field that his
case might not proceed on the
date of trial, and he did not understand why not. Mr Huisamen
undertook to enquire from Mr
Delport and would explain the status of
the matter once that was done. Indeed, he telephoned Mr Delport
shortly thereafter
on 4 December 2007. Relying on his file notes,
which formed part of Exhibit “A”, Mr Huisamen testified
that Mr Delport
invited him to attend a consultation with Adv Gajjar
on 6 December 2007, where the issue of the special pleas was
discussed.
Adv Gajjar opined that the special pleas would be
upheld by the Court and suggested that the action against
Metropolitan Life be
withdrawn with each party to pay its costs. Adv
Gajjar communicated his opinion on 10 December 2007. Pursuant
to that he
received the file from the plaintiff. He perused the
file and concluded that the defendant and the Advocate who handled
the
matter were negligent. He made a courtesy call to both
advising that he would be issuing summons against them. They
both permitted him to do so. Indeed, he issued and served
summons on the defendant on 3 December 2010.
[14]
Under cross-examination, he denied that he received instructions and
took over the matter on 04 December
2007. He stated that he
received the file after 10 December 2007 from the plaintiff.
Based on the correspondence, he
confirmed that he wrote a letter to
Metropolitan Life’s attorneys on 10 December 2007, suggesting
the withdrawal of the action
with each party to pay its costs.
He denied the evidence of Mr Delport that when he contacted him, in
early December 2007
he was aware of the facts of the matter. At
the time of the telephone call, he did not have information about the
claim against
Metropolitan Life. He did not even have the file
at that stage. He was asked and referred to his affidavit which
he
filed in a superannuation application involving the parties.
In it Mr Huisamen stated as follows:
“
When I took
possession of the 1
st
respondent’s file at the end of 2007 and after discussions with
the 1
st
respondent Mr Delport or the applicant, instructed Adv Gajjar to
advise whether the issue of prescription, which has been raised
by
Metropolitan was valid”.
He stated that it was a
mistake as he was relying on his recollection when he drafted the
affidavit. That he was now looking
at his file notes, he did
not personally contact Adv Gajjar.
D.
Defendant’s evidence:
[15]
Mr Delport testified that he is the sole director of the defendant.
In August 2007, Mr van der Merwe,
who was dealing with the
Metropolitan Life matter on behalf of the plaintiff left the
defendant on 30 August 2007. He had
to take over the file.
Firstly, he had to acquaint himself with the file contents. He
recorded everything he did on
the file cover. That, according
to him was during the latter part of 2007. On reading the file,
he spotted that Adv
Grobler was briefed to deal with the matter.
He telephoned him. Adv Grobler advised that he was no longer
available
to deal with the matter. He read the special pleas
which were raised and realised that:
“
It did not look
too well for Mr Bernard’s matter. . .”
On 28 November 2007, he
had a consultation with the plaintiff which lasted an hour at his
office. He recorded what they discussed
on the file. He
testified thus in this regard:
“
My consultation is
to the effect that I specifically pointed out the contents of the
pleas, the special pleas that is there and
that I was material
concerned about the contents thereof and that I believe there is
problems and that is negative for his case
going forward with regards
to having success with his claim . . . we will obviously not
proceed with the matter further”.
(
sic
)
[16]
On hearing the news, he testified that the plaintiff was obviously
disappointed with that information. He,
after that consultation,
decided to make an appointment with Adv Gajjar to either confirm his
opinion about the special pleas.
On 4
th
December 2007, he
received a call from Mr Huisamen whose evidence I have dealt with
above. Mr Huisamen informed him that
he had received
instructions from the plaintiff to deal with the matter. They
both agreed that a postponement should be sought
and a proposal be
made to Metropolitan Life’s attorneys that they (the defendant)
withdraw the action with each party to
pay its costs. Mr
Huisamen, according to him, was at that time in control of the matter
to an extent that Mr Huisamen drafted
the letter proposing the
withdrawal of the action. However, his firm did not file a
notice of withdrawal because he thought,
if accepted, then that would
be the end of the matter.
[17]
On 10 December 2007, he and Mr Huisamen consulted with Adv Gajjar in
his chambers. Adv Gajjar wrote
an opinion in which he informed
them that the special pleas had merit and suggested that the action
be withdrawn with a proposal
that each party pay its costs. As
he felt he was no longer in control of the file, he waited for Mr
Huisamen to write the
letter proposing settlement along the lines
suggested by Adv Gajjar. He left it to Mr Huisamen to notify
the plaintiff of
Adv Gajjar’s opinion. Metropolitan Life
accepted the proposal. He last heard from Mr Huisamen in
January 2008.
[18]
December 2010, he received a call from Mr Huisamen. He informed
him about the summons in this matter.
The letter he received
informed him that summons would be served on the defendant on 3
December 2010, and advised him that the
defendant may file its notice
of intention to defend the matter in January of 2011 when the offices
open after Christmas holidays.
He further suggested a round
table to try and resolve the matter. Indeed, he received the
summons on 3 December 2010.
He stated that from 31 January
2008, till 3 December 2010, he never received correspondence nor
telephone calls from Mr Huisamen
about this matter.
[19]
Under cross-examination, Mr Delport testified that according to him
prescription started to run on 28 November
2007, when he first
mentioned the issue of the special pleas to plaintiff. In fact,
he testified thus:
“
As I said I told
Mr Barnard this is the pleas, that we have received and it is
obviously negative for our matter and then I believe
there is a
problem for this case, his case against Metropolitan at that stage”.
(
sic
)
[20]
Mr Delport testified that when he received summons on 3 December
2010, he thought the claim had not prescribed.
At that stage,
he did not even think that prescription commenced to run on 28
November 2010. It was only brought to his attention
by his
attorney and counsel. He conceded that, for Mr Huisamen to have
been able to advice the plaintiff about this matter,
he needed the
file contents to formulate an opinion so as to be able to give
advice. However, he did not recall where the
file was on 6
December 2007 when they went to consult with Adv Gajjar. He did
not recall whether he gave the file to Adv
Gajjar. He was
referred to a pre-trial minute in which the parties agreed that the
file was handed over to Adv Gajjar by
Mr Delport. He still
could not recall doing so.
[21]
Mr Delport confirmed that the reason he sought Adv Gajjar’s
opinion is that he did not know whether
the special pleas would
succeed or not. The questioning in this regard proceeded as
follow:
“
Mr Shubart:
Yes, but you did not know if it is correct, not so? As
you say you read the plea
and you realised that if the plea is
correct well then that is the position is”. (
sic
)
Mr Delport:
That is fair comment, Yes sir.
Mr Schubart:
But at that stage you did not know whether that plea was correct.
No so?
Mr Delport:
That is correct.
Mr Schubart:
That is why you had to get an opinion from Adv Gajjar to find out is
there merit in these special
pleas, is the matter in fact . . . had
the action in fact become prescribed against Metropolitan, did . . .
not so.
Mr Delport:
Yes – the purpose of the meeting and setting it up with Adv
Gajjar was to
confirm my understanding of what the position is and
then confirm my understanding and what the outcome will be.
Mr Schubart:
Because my instructions are that at the meeting that you had with Adv
Gajjar you did not know
your file very well at that stage.
Mr Delport:
Yes correct. I just knew my consultation; I saw the file twice
before that
and that is correct sir”. (
sic
)
[22]
Mr Delport testified that on 10 December 2010, his fears were
confirmed telephonically by Adv Gajjar that
the special pleas would
succeed thus confirming that the claim against Metropolitan Life had
prescribed. He was referred
to the correspondence, which was
exchanged between himself and his correspondent attorneys, the sum
total of which was that he
was still awaiting an opinion from an
advocate regarding the prospects of success on the merits and that he
would proceed to arrange
pre-trial conferences with attorneys for
Metropolitan Life thereafter. He did not recall being
telephoned by Mr Huisamen
on 10 December 2007, informing him that
there was a possible claim against his firm for allowing the matter
to prescribe.
Furthermore, Mr Delport was referred to a letter
from Adv Gajjar to the defendant (Mr Delport) wherein he stated that
he was returning
the file together with his account. He could
not remember having the file in his possession on that day i.e., 10
December
2010. It was put to him that Mr Barnard only became
aware that his claim had prescribed when he fetched his file on
instructions
of Mr Huisamen from Mr Delport on 10 December 2007.
Mr Delport could neither remember nor dispute that because he had no
recollection of it. It was further put to him that it was on
that day that the file was given to the plaintiff by Mr Delport
after
which he inquired whether he had any outstanding fees to which he
said no. The answer to this was that he could not
recall that.
E.
Argument
:
[23]
The defendant argued that the prescription period started to run on
28 November 2007, when the plaintiff
knew or ought reasonably to have
known that the defendant did not perform its mandate in a proper and
professional – like
manner and that prescription commenced to
run on 29 November 2007. In context, the defendant argued that
what is pleaded
by the plaintiff differs from his evidence in court.
The argument is premised on the file notes made by Mr Delport, the
admission
made by the plaintiff in his affidavit in the
superannuation application. The file note though in Afrikaans
has been read
by the defendant to mean the following:
·
the consultation lasted approximately an hour;
·
that having read the pleadings Mr Delport was personally not positive
in respect
of the matter and conveyed this to Mr Barnard;
·
a consultation had been arranged for the following week with Adv
Gajjar to obtain
his opinion and advice in respect of the matter; and
·
Mr Delport had contacted the attorney (Metropolitan attorneys) and
said he was
only available for a pre-trail meeting after 15 January
2008.
In his affidavit, the
plaintiff said the following about the consultation he had on 28
November 2007 with Mr Delport”.
“
I realised that
the applicant did not perform its mandate in a proper and
professional manner,
and
I thereafter engaged the services of an attorney Mr Hendrick
Huisamen”. (
sic
)
(Emphasis added).
Apart from any other
criticism levelled against the evidence of the plaintiff and what has
been set out in summary of the evidence
above, this is the high–water
mark of the evidence of the defendant in establishing that the claim
against it had prescribed.
Furthermore, the defendant
criticised the plaintiff as a poor witness who was unable to answer
questions, blaming his poor memory.
[24]
The criticism of Mr Huisamen’s evidence is premised on the fact
that, as an experienced attorney, Mr
Huisamen failed to keep file
notes of the telephone conversations he had with Mr Delport regarding
whether he had reported the
matter to his insurers and the alleged
admission of liability by him. The defendant submitted that
even on the version of
Mr Huisamen, Mr Delport’s responses did
not interrupt prescription as they were not unequivocal conduct,
which was capable
of no other reasonable interpretation than that he
intended to admit liability. The evidence of Mr Huisamen when
it came
to whether they (with Mr Delport) discussed the latter’s
admission of liability was the following:
“
Mr
Schubart: Did you discuss that with Mr Delport at all?
Mr Huisamen:
Not in depth, no.
Mr Schubart:
Did you discuss it at all?
Mr Huisamen:
Well, I told him my opinion.
Mr Schubart:
And what did he say about that?
Mr Huisamen:
He had nothing to say, I mean he did not admit to anything, nor did
he deny anything. He said to
me what must he do then, so I said
well my advice would be to just report the matter to the insurance”.
[25]
The plaintiff’s argument was that anything outside Mr Delport’s
file notes about the consultation
he had with the plaintiff should
not be believed because he did not know the merits of the matter and
was not sure whether the
claim had prescribed or not until confirmed
by Adv Gajjar.
F.
The legal position and Analysis of the evidence
:
[26]
Section 12 of the Prescription Act
[2]
(the Act) provides as
follows in the relevant part:
“
(1)
Subject to the provisions of sub-sections (2), (3) and (4),
prescription shall commence to run
as soon as the debt is due;
(2)
. . .
(3)
A debt shall not be deemed to be due until the creditor has knowledge
of the identity
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)
. . .”
[27]
Subsection 1 of the Act is not in issue. It is further common
cause that in terms of Section 11 (d)
of the Act, the prescription
period in the respect of the plaintiff’s claim is three (3)
years. The only relevant section
is sub-section 12 (3) of the
Act regarding whether the plaintiff, on 28 November 2007, was
provided with facts upon which a claim
against the defendant arose.
The contention by the defendant is that the plaintiff was provided
with such facts. The
question is whether the facts that were
provided to him would have given him knowledge that a debt had arisen
in his favour against
the defendant. Legal conclusions
applicable to the accepted facts are not a consideration. The
law has developed around
sub-section 12 (3) of the Act to the extent
that it has become trite. Various courts have pronounced on
it
[3]
.
[28]
Prescription extinguishes a debt. Although the term “debt”
is not defined in the Act, it
refers to anything that is owed or due,
be it money, goods, or services a debtor is under an obligation to
pay or render to a creditor
[4]
.
In the context of this matter, the debt is in relation to failure to
render services as an attorney firm.
[29]
In order to succeed the plaintiff, would have to allege and prove
that:
(a)
a mandate was given to and accepted by the defendant;
(b)
a breach of the mandate;
(c)
negligence in the sense that the defendant did not exercise the
degree of skill, knowledge and
diligence expected of an average
practising attorney;
(d)
that he had suffered damages; and
(e)
that damages were within the contemplation of the parties when the
mandate was extended
[5]
.
[30]
The high-water mark of the defendant’s defence is that
prescription started to run on 29 November 2007,
the latter being the
date after the plaintiff got to know the facts upon which his claim
is premised. As stated previously,
what was said during the
consultation is a bone of contention between the parties. All
that has to be resolved is whether
what was said to the plaintiff
during that consultation was clear enough to have informed him that
his claim against Metropolitan
Life had prescribed and that he had a
claim against the defendant for damages arising out of the negligent
handling of the claim
against Metropolitan Life. In doing so, I
have to evaluate the conversations
[6]
between them. If
unable to resolve the issue based on that, I have to have regard to
the conduct of the parties going forward
[7]
.
[31]
Based on the note he made on 28 November 2007, Mr Delport testified
that all he told the plaintiff was that
he was “concerned about
the contents thereof (the special pleas) and that I believe there is
problems and that it is negative
for this case going forward with
regards to having success with his claim”.(
sic
)
The dictionary meaning of “concerned” is that he was
“worried”, “troubled” and “anxious”
about the special pleas raised by Metropolitan Life. This, to
me, does not amount to a clear statement that conveys that
they were
“dead in the water” and therefore nothing could be done
as, the claim had prescribed. The statement
cannot be read to
mean that. It cannot be said that Mr Delport, with certainty,
told the plaintiff that his claim had prescribed.
Instead, the
statement indicates that he was not certain whether the special pleas
would stand, hence, he expressed doubts by even
saying:
“
Well, if
that was . . . [indistinct] we will obviously not proceed with the
matter”.
[32]
It cannot be said with conviction that Mr Delport, as at that stage,
believed that the special pleas meant
that was the end of the matter.
Had he been certain, nothing would have prevented him from
categorically saying so to the plaintiff.
The concern that he
had about the special pleas cannot be said to have conveyed
sufficient facts to the plaintiff (who is a lay
person) which could
have led him to believe that his claim prescribed in the hands of the
defendant. Mr Delport himself was
uncertain as to whether the
claim had prescribed hence, he expressed a concern going forward.
[33]
Mr Delport’s uncertainty is fortified by his actions prior to
and after consulting with the plaintiff.
He consulted Adv
Grobber who was the advocate “managing” the matter.
As suggested by Adv Grobber, he, according
to him, had to “get
confirmation on my opinion belief of my legal interpretation of what
I saw on the papers”. (
sic
) This statement is
clear enough to establish that he was not sure whether prescription
would be upheld. Therefore,
he could not have informed
the plaintiff that the claim had prescribed.
[34]
To prove that he was not sure about the status of the special pleas,
he approached Adv Gajjar to opine on
it. Adv Gajjar gave his
opinion on 10 December 2007 confirming that the claim against
Metropolitan Life had prescribed.
Obviously, that served as
confirmation of his belief. He no longer had doubts about the
success of the special pleas at that
stage. Based on these facts,
coming from Mr Delport himself, it is evident to me that he could not
have advised the plaintiff about
the success or otherwise of the
special pleas as of 28 November 2007. As of that date, it
cannot be said that the plaintiff
had acquired sufficient knowledge
that the defendant had not exercised, with a degree of skill,
knowledge and diligence to sue
Metropolitan Life. If that were
the case, Mr Delport would not have sought the advice of Adv Grobbler
and Adv Gajjar.
He would have told the plaintiff that the
special pleas would succeed, and that meant the end of their mandate.
[35]
The plaintiff’s evidence, which I accept, is to the effect that
after the consultation of 28 November
2007, he felt confused to an
extent that after fortuitously meeting Mr Huisamen at the EP Rugby
Academy, he told him that Mr Delport
told him the matter would not
proceed on the trial date. The plaintiff did not understand
why, because he was looking forward
to the finalisation of the
matter. This is a clear indication that he really was
confused. Mr Huisamen undertook to
find out from Mr Delport, as
they were colleagues. It is apparent that an explanation was
given to Mr Huisamen by Mr Delport
which culminated in both attending
a consultation with Adv Gajjar. It was put to Mr Delport
that he did not know the
merits of the case or the validity of the
special plea at that stage. The questioning was as follows:
“
Mr Schubart:
He will say that at this meeting Adv Gajjar asked you a few questions
about the special pleas and
you said to him you did not really know
what was going on with the matter, because you had not been involved
with it [intervenes].
Mr Delport:
That is hundred percent correct. I do not know about the
matter, its detail”.(
sic
)
This confirms that it
would have been inconceivable that Mr Delport would have told the
plaintiff that the special pleas were valid
and that the matter had
prescribed. Furthermore, Mr Delport, when asked if he wanted an
Advocate’s opinion, especially
based on his file notes, he said
the following about the consultation on 28 November 2007:
“
Correct, because I
did not want to burden to, you know just tell this gentleman the case
is now just down the drain so to speak”.
(
sic
)
This answer is telling.
He did not tell him that the case is “down the drain”
hence he sought an opinion. This
confirms my view and finding
that the plaintiff did not know facts sufficient for him to formulate
a cause of action hence he even
informally approached Mr Huisamen to
express his lack of knowledge about why the matter was to be
postponed.
[36]
A lot has been said about the probabilities in this matter. In
fact, about the conflict in the parties’
versions; where the
file was pursuant to the consultation on 28 November 2007; what
transpired between Mr Delport and Mr Huisamen;
who was in charge
after the consultation; the interruption of prescription etc. I
shall not deal with these issues especially
whether prescription was
interrupted or not, for the reason that I find that the cause of
action arose on 10 December 2007 and
not 28 November 2007 as alleged
by the defendant. Prescription was interrupted on 3 December
2010 when summons was served
on the defendant.
[37]
Consequently, I make the following order.
1.
The defendant’s special plea is dismissed with costs.
M
MAKAULA
Judge
of the High Court
Appearances:
Counsel
for plaintiff:
Adv L
Schubart SC
Instructed
by:
Greyvensteins
Inc.
Counsel
for defendant:
Adv K
Williams
Instructed
by:
Lizelle
Pretorius Inc.
Date
reserved:
25
April 2023
Date
delivered:
23
January 2024
[1]
68 of 1969.
[2]
Act 68 of 1969.
[3]
Links v Member of the
Executive Council Department of Health, Northern Cape
2016
(4) SA 414
(CC) paras 30 to 35;
Minister
of Finance and Others v Gore N.O.
2007
(1) SA 111
(SCA) at para 17.
[4]
Amler’s
Precedents of Pleadings,
9
th
Edition, Harms page 305
and the cases cited therein.
[5]
McMillan v Bate Chubb
and Dickson Inc.
[2021]
JOL 50108
(SCA) para 35; [2021] ZASCA 45.
[6]
Which are premised on
the file notes made by Mr Delport.
[7]
That is the involvement
of Mr Huisamen and the consultation with Adv Gajjar.