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[2021] ZASCA 45
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McMillan v Bate Chubb & Dickson Incorporated (299/2020) [2021] ZASCA 45 (15 April 2021)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
no: 299/2020
In
the matter between:
BRUCE
GORDON
McMILLAN
APPELLANT
and
BATE
CHUBB & DICKSON
INCORPORATED
RESPONDENT
Neutral
citation:
McMillan
v Bate Chubb & Dickson Incorporated
(Case
no 299/2020)
[2021] ZASCA 45
(15 April 2021)
Coram:
ZONDI, MOCUMIE and SCHIPPERS JJA and GORVEN and
EKSTEEN AJJA
Heard
:
19 February 2021
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives
by email. It has been published
on the Supreme Court of Appeal website and released to SAFLII. The
date and time for hand-down
is deemed to be 10h00 on 15 April 2021.
Summary:
Prescription: firm of attorneys sued
for breach of mandate arising out of drafting an antenuptial contract
subsequently found invalid
by court – whether prescription
begins to run on date of judgment declaring the antenuptial contract
invalid – prescription
begins to run as soon as the creditor
acquires knowledge of the facts necessary to institute action
–whether costs of two
counsel should be awarded.
ORDER
On
appeal from:
Eastern Cape Division of
the High Court, East London (Makaula J) sitting as court of first
instance:
The
appeal is dismissed with costs.
JUDGMENT
Zondi
JA (Mocumie and Schippers JJA and Gorven and Eksteen AJJA
concurring):
[1]
On 13 October 2017, the appellant, Mr McMillan, instituted action in
the Eastern Cape
Division of the High Court, East London against the
respondent, a law firm, for damages for breach of an oral mandate.
The summons
was issued on 13 October 2017. The record does not
indicate when it was served. The respondent delivered a special plea
in terms
of which it contended that the appellant’s claim had
prescribed. By agreement between the parties, the court a quo
(Makaula
J) made an order in terms of rule 33(4) of the Uniform Rules
of Court (the separation order) that certain specified issues
including
those arising from the respondent’s special plea, be
separately adjudicated before all other issues.
[2]
Makaula J, after hearing evidence on the separated issues, upheld the
special plea.
The learned judge considered it unnecessary to
determine the further issues raised in the separation order in the
light of his
conclusion on the prescription point. He granted the
appellant leave to appeal to this Court. The parties agreed that if
we were
to uphold the appeal in respect of the prescription issue, we
should deal with other issues separated, rather than referring the
matter back to the court below.
[3]
I consider it convenient to deal first with the prescription point,
because if the
appeal in respect thereof is dismissed, it will become
unnecessary to consider the further issues in the separation order.
The
issue is whether the court a quo was correct to hold that when
the summons was issued on 13 October 2017, the appellant’s
claim had become prescribed. Stated differently, the question is:
when did prescription start to run in respect of the appellant’s
claim for damages against the respondent? In terms of s 11(
d
)
of the Prescription Act 68 of 1969 (the Act), this claim is subject
to a three-year extinctive prescription period. The respondent
alleged that prescription started running on 9 or 12 May 2014, when
its director had advised the appellant to consult a different
attorney, as he had a potential claim against the respondent, and not
on 18 October 2016, when the high court declared that the
antenuptial
contract was invalid, as contended by the appellant. The respondent
claimed that the three-year prescription period
ended on 12 May 2017.
On that premise, by the time the summons was issued, his claim had
already prescribed.
[4]
The answer to this question depends on the interpretation of s 12(3)
of the Act and
its application to the facts of this case. The
respondent bears the onus to prove that the appellant’s claim
had become prescribed
by 13 October 2017.
[5]
For the purposes of the adjudication of the prescription point, the
following facts
are common cause or not seriously disputed. During or
about November 1998, and at East London, the appellant and the
respondent
entered into an oral agreement in terms of which the
appellant gave the respondent an oral mandate to prepare an
antenuptial contract
for the purposes of regulating the financial
affairs of the intended marriage between the appellant and one
Rosemary Lois Jannaway
(the appellant’s former wife).
[6]
The express and material terms of the oral mandate given to the
respondent, according
to the appellant, were that the respondent
should prepare a written antenuptial contract which would exclude all
community of property
between the appellant and his former wife, and
for the accrual system to apply to the marriage. The antenuptial
contract should
exclude from the accrual all the business assets
owned by the appellant, comprising a farm together with livestock and
implements,
shares, and loan accounts, valued at R810 105.
[7]
The respondent accepted the mandate as aforesaid, and prepared an
antenuptial contract
which they presented to the appellant and his
former wife for signature on 1 December 1998. The appellant alleged
that in breach
of the oral mandate, the respondent failed to prepare
the antenuptial contract in accordance with their instructions.
[8]
He averred that the respondent in fact drew up an antenuptial
contract, dated 1 December
1998, which was declared to be void ab
initio. The divorce action was heard by Plasket J. In it, the
appellant’s former wife
contended that the antenuptial contract
was void ab initio. Soon after this plea in the divorce was
delivered, on 9 May 2014, the
respondent firm orally advised the
appellant that this point had been taken, that the appellant might
have a claim against the
respondent and that he should consult
another attorney to take the matter further. This was followed by a
communication in writing
to that effect, dated 12 May 2014. This will
be dealt with in more detail below. The new attorney represented the
appellant in
the divorce action which culminated in an order by
Plasket J, declaring the antenuptial contract to be void ab initio.
On this
basis, it was held that the marriage was one in community of
property and the estate was dealt with on that basis, which meant
that all of the business assets fell into the joint estate. The
respondent was thus obliged to pay his former wife 50 percent of
his
net estate which amounted to R4 885 073.
[9]
As I have stated, the respondent pleaded that the appellant’s
claim had become
prescribed. It asserted that the breach of mandate
relied upon by the appellant occurred in 1998, which was more than
three years
prior to the issue of summons. In the alternative, the
respondent alleged that, on or about 9 May 2014, the appellant was
informed
during the consultation with Mr Kretzmann, a director of the
respondent, that there appeared to be a problem with the terms of the
written contract and that he may have a claim against the respondent.
This advice was subsequently confirmed by the respondent
in a letter
addressed to the appellant on 12 May 2014.
[10]
The respondent accordingly argued that as at 9 May 2014,
alternatively, 12 May 2014, the appellant
was aware of all the
material facts upon which the purported claim against it could be
formulated, but he nevertheless failed to
institute action within a
period of three years from either of those dates. The respondent
accordingly contended that the appellant’s
claim had prescribed
in terms of s 12(1) Act.
[11]
The respondent denied that it had breached their oral mandate or that
it failed to prepare an
antenuptial contract in accordance with the
appellant’s instructions. It contended that it had executed the
mandate according
to the standards of a reasonable attorney of
average ability. It alleged that at the time of the drafting of the
antenuptial agreement,
it did not anticipate, nor could it have been
anticipated by a reasonable attorney, that the antenuptial contract
which it had
drafted, could or would be declared null and void later.
[12]
The appellant replicated to the respondent’s special plea and
denied that his claim had
become prescribed. He asserted that he
could not have acquired knowledge that a debt was due to him by the
respondent at any time
before final judgment had been delivered in
the divorce action, which was finalised before Plasket J.
[13]
The appellant further alleged that the respondent and its directors,
at all material times, disputed
that there was any valid claim
against the respondent and the respondent’s director, Mr
Schultz, testified under oath that
he had fully complied with the
mandate given to the respondent, as pleaded in the particulars of
claim. The appellant argued that,
absent a concession that there had
been a breach of the mandate, or that the respondent was liable to
the appellant for the consequence
of such a breach, the appellant
could not have known that the antenuptial contract was invalid, until
such time as the high court
pronounced pertinently on the validity
and enforceability of the antenuptial contract.
[14]
The appellant testified on the issues that were separated by the
court a quo. The purpose of
his evidence was to show that, by reason
of the provisions of s 12(3) of the Act, prescription only began to
run once Plasket J
delivered his judgment on 18 October 2016, which
declared the antenuptial contract to be invalid and void ab initio.
[15]
The appellant’s evidence was to the following effect. During
1998, the appellant and his
ex-wife intended to get married. At the
time, the appellant was a production manager at the East London
abattoirs. He had known
the respondent firm for some time in his
capacity as one of the directors of Elliot Brothers Auctioneers. It
provided legal advice
to them on business-related matters. During
December 1998, the appellant and his other directors had a meeting
with two of the
attorneys of the respondent firm. After the meeting,
the appellant mentioned to them that he was about to get married and
he needed
to have an antenuptial contract prepared. He was introduced
to Mr Nico Schultz (Mr Schultz), who was one of the directors of the
respondent. The appellant had a brief discussion with Mr Schultz
during which the appellant explained the nature of the legal advice
he was seeking.
[16]
A date was arranged for the second meeting with Mr Schultz. The
appellant was asked to attend
the second meeting with his former wife
and to bring their identity documents and a list of assets and their
values, which would
also indicate assets which he wanted to be
excluded from the accrual system. The appellant, in the presence of
his former wife,
prepared a list of assets with a total value of
R810 105. The nett value of his former wife’s estate at
the time was
R20 000.
[17]
At the second meeting with Mr Schultz, the appellant and his former
wife provided Mr Schultz
with the documentation he had requested for
purposes of preparing an antenuptial contract. The appellant and his
former wife agreed
that they intended to get married out of community
of property, subject to the accrual system. They instructed Mr
Schultz to prepare
the antenuptial contract, reflecting their
marriage as such. It was held by Plasket J that no further terms were
agreed upon between
the parties and that the first time they were
confronted with clauses 4 and 5 of the antenuptial contract was when
it was presented
to them for signing.
[18]
Some few days later, the appellant and his former wife attended at
the respondent’s office
to sign the antenuptial contract. It
was read to them by Mr Schultz in the presence of Mr Kay, a notary
public, also employed by
the respondent.
[19]
The relevant provisions of the antenuptial contract read as follows:
‘
1.
That there shall be no community of property between them.
2.
That there shall be no community of profit or loss between them.
3.
That the marriage shall be subject to the accrual system in terms of
the provisions
of Chapter 1 of the Matrimonial Property Act, 1984
(Act No 88 of 1984).
4.
That for the purpose of
proof of the net value of their respective estates at the
commencement of the intended marriage the intended spouses declared
the net value of their respective estates to be as follows:
4.1
that of the said
BRUCE GORDON McMILLAN
is R810 105,00
consisting of:-
4.1.1
Farm 656 Monte
Rosa
480 000,00
4.1.2
Elliot Brothers Loan Account
100 000,00
4.1.3
Elliot Brothers
Shares
100,00
4.1.4
Tomlinson & Wootton Loan
Account
30 000,00
4.1.5
Tomlinson & Wootton
Shares
5,00
4.1.6
Livestock and
Implements
160 000,00
4.1.7
Motor
Vehicle
40 000,00
R810 105,00
4.2
that of the said
ROSEMARY LOIS JANNAWAY
is R20 000,00 in
respect of cash on hand.
5.
That the assets of the parties or either of them, which are listed
hereunder,
or any other asset acquired by such party by virtue of
his/her possession or former possession of such assets, shall not be
taken
into account as part of such party’s estate at either the
commencement or the dissolution of the marriage.
The
assets of
BRUCE GORDON McMILLAN
so to be excluded are:-
(a)
All business interests presently owned or to be acquired in the
future.
The
assets of
ROSEMARY LOIS JANNAWAY
so to be excluded are NIL.’
[20]
The appellant was not aware that the antenuptial contract, which he
and his former wife concluded,
did not correctly reflect his
intention to exclude from the accrual system his business assets,
valued at R810 105. He became
aware of that fact when his former
wife instituted divorce proceedings against him, in which she, inter
alia, sought an order declaring
the antenuptial contract to be void
and her marriage to be one in community of property. The issue
concerning the validity and
enforceability of the antenuptial
contract was referred to Plasket J for determination on a separated
basis. In the event, the
learned judge concluded that clauses 4 and 5
of the antenuptial contract are contradictory and irreconcilable. He
found the antenuptial
contract to be void on account of vagueness. In
reaching his conclusion, Plasket J relied on the judgment of this
Court in
B v B
[2014] ZASCA 14
, in which an antenuptial
contract with provisions similar to the one under consideration was
held void for vagueness, because two
of its clauses were so
contradictory and incoherent.
[21]
The circumstances in which the appellant was made aware that the
antenuptial contract could be
invalid were the following. On 7 March
2014, he attended a meeting at the respondent’s offices with Ms
Amanda Fredericks
and Mr Kretzmann, both in the employment of the
respondent firm, to explore how the divorce between him and his
former wife could
be settled.
[22]
At this meeting, the possibility of rectifying the antenuptial
contract was explored, because
of a perceived conflict between
clauses 4.1 and 5 thereof. The strategy used was to first attempt to
settle the divorce, which
the appellant did. When that failed, a
decision was taken by the appellant, on the advice of Ms Fredericks
that counsel would need
to be instructed to draft pleadings,
including a claim for rectification.
[23]
On 14 April 2014, the appellant attended a consultation with Ms
Fredericks and the appointed
counsel for the purpose of providing
instructions to counsel for a plea and counterclaim, including a
claim for rectification of
the antenuptial contract.
[24]
On 9 May 2014, the appellant attended a further consultation at the
respondent’s offices
with Ms Fredericks and Mr Kretzmann. There
he was advised by Mr Kretzmann that there was a problem with the
antenuptial contract
drafted by the respondent, that the drafters may
have made an error and that because of a conflict of interest between
the respondent
and the appellant, he should seek independent legal
advice. The appellant left the offices of the respondent after the
consultation
on 9 May 2014 with his file and subsequently consulted
with Mr Graham Bell of Cooper Conroy Bell & Richards Incorporated
(Cooper
Conroy).
[25]
The discussion of 9 May 2014 was confirmed in a letter addressed to
the appellant by Mr Kretzmann
on 12 May 2014. In the letter the
appellant was again advised of the error in the antenuptial contract
which may lead to a claim
against the respondent, that as a result,
the respondent was withdrawing as the appellant’s attorney of
record and that he
should seek further legal advice.
[26]
The respondent formally withdrew as the appellant’s attorney of
record in the divorce proceedings
by way of notice of withdrawal,
dated 9 May 2014, served upon the appellant’s former wife’s
attorneys on 13 May 2014.
[27]
Cooper Conroy filed a notice of appointment as attorneys of record on
the appellant’s behalf
on 28 May 2014, which notice was dated
20 May 2014, and proceeded to act for the appellant throughout his
divorce proceedings and
still represents the appellant in the current
proceedings.
[28]
The appellant filed a plea and counterclaim, the latter dated 16 July
2014, during July 2014.
The counterclaim included a claim for
rectification which clearly recognised the error in the antenuptial
contract and the need
for such rectification by the appellant. As
regards rectification and the contention that the appellant had to
wait for this defence
to be determined by Plasket J before all the
facts could be known, it is significant that the appellant made a
crucial concession
noted in the judgment of Plasket J. This was that
no agreement had been reached at all between him and his former wife
on the terms
of the agreement prior to signature of the antenuptial
contract. A prior agreement, which was not reflected in the written
contract
due to a common mistake of the parties, is a prerequisite to
a successful claim for rectification. Without any prior agreement as
to the terms, a claim for rectification could not succeed.
[29]
The appellant conceded that his own attorney, Mr Graham Bell, could
have assessed the risk or
potential of a claim against the respondent
in May 2014, and that he was aware when he left the respondent’s
offices that
he ‘may’ have a claim against them. This
concession must be correct, because the judgment of this Court in
B
v B
,
[1]
dealing with a matter on all fours with the present one, had been
handed down in March 2014. Likewise, as mentioned above, the
attorney
would have been able to advise that, if no prior agreement had been
reached as to the terms of the agreement, the claim
for rectification
could not succeed.
[30]
The court a quo determined that the appellant’s claim had
become prescribed. It rejected
the appellant’s contention that
the prescription started running in October 2016, which was based on
the allegation that
the appellant could not have acquired knowledge
that a debt was due to him by the respondent at any time before the
final judgment
that was delivered by Plasket J. As para 64 of the
court a quo’s judgment is central to its finding, it must be
quoted in
full:
‘
But
in May 2014, it became apparent that there was a problem with the
ANC. Such problem necessitated the defendant’s withdrawal
from
representing the plaintiff. In the words of the defendant a
“potential claim” and conflict “of interest”
was looming. The plaintiff was alarmed by the events to realise that
his assets were at stake as a consequence of the divorce and
the
discovering of the reality that validity of the ANC was in question.
It became apparent that there was a conflict between clauses
4.1 and
[5]
of
the ANC hence there was an application for its rectification. As at
that stage it became manifest that the plaintiff was to a
large
extent going to lose his assets as a consequence of the wrong manner
in which the contract was drafted hence the application
for
rectification was pursued.’
[31]
The court a quo concluded at para 67:
‘
Based
on the facts, the plaintiff’s cause of action was complete in
May 2014 except for a pronouncement by Plasket J on the
validity of
the ANC. Furthermore, pursuing his cause of action, the plaintiff was
not dependant on Plasket J’s judgment.
I do not agree with the
submission by Mr Cole in this regard for the reasons discussed above.
It
might have been “one piece of evidence which was lacking to
prove” his case
.’
(Emphasis added.)
[32]
The comment made by the court a quo in the last sentence of para 67
of the judgment is rather
unfortunate, as it tends to muddy its
reasoning. In argument before us, it was heavily relied upon by the
appellant's counsel as
providing support for the contention that the
appellant’s cause of action could not have been complete before
a finding was
made by the high court, declaring the antenuptial
contract invalid. But that reliance was misplaced.
[33]
It is a settled principle that, when interpreting a court’s
judgment or order, the court’s
intention must be ascertained
primarily from the language of the judgment or order according to the
usual well-known rules of interpretation.
The judgment or order, and
the court’s reasons for giving it, must be read as a whole in
order to ascertain its intention.
If, on such a reading, the meaning
of the judgment or order is clear and unambiguous, no extrinsic fact
is admissible to contradict,
vary, qualify, or supplement it.
[2]
The court a quo held that the appellant’s claim had prescribed.
It is in this context that the court a quo’s statement
in the
last sentence of para 67 should be understood.
[34]
The appellant challenged the findings of the court a quo on two main
grounds. It was submitted
by the appellant firstly, that the court a
quo erred in holding that the appellant had a complete cause of
action for professional
negligence against the respondent on 12 May
2014 in circumstances where the antenuptial contract was only
declared invalid by Plasket
J in the divorce proceedings in October
2016. Before then, so ran the argument, nobody could have anticipated
a problem. Both the
appellant and his former wife had considered the
antenuptial contract to be valid. It was accordingly submitted by the
appellant
that prescription could not have commenced running before
the judgment of Plasket J in October 2016. The appellant, it was
argued,
could not have sued the respondent. Secondly, it was
submitted by the appellant that, as the respondent’s directors
disputed
that there was a claim against the respondent for
professional negligence, he could not have known that the antenuptial
contract
was invalid. Thus, prescription only began to run once
Plasket J delivered his judgment on 18 October 2016 regarding the
validity
of the antenuptial contract. Before then, he did not have
the necessary facts upon which to formulate a claim against the
respondent.
[35]
I reject the appellant’s contention that, prior to the
declaration of invalidity of the
antenuptial contract by Plasket J in
October 2016, he could not have had knowledge of all the material
facts he needed before he
could institute legal proceedings against
the respondent. In order to succeed in an action for damages against
an attorney for
professional negligence, a plaintiff is required to
allege and prove: (a) a mandate given to and accepted by the
attorney; (b)
a breach of the mandate; (c) negligence in the sense
that the attorney 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. In this case there can
be little dispute about (a), (b), (c) and (e). As to (d),
the
appellant had been sued by his wife for half of his estate. He had
approached the respondent to defend the claim when they
advised him
that there was a problem with the drafting of the antenuptial
contract. It was manifest at that stage that he had suffered
damages
as a result of the error.
[36]
Section 12 of the Act provides as follows:
‘
(1)
Subject to the provisions of subsections (2), (3), and (4),
prescription shall commence
to run as soon as the debt is due.
.
. .
(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.’
[37]
As I have said, the appellant had acquired knowledge of all necessary
facts on which to sue the
respondent on 9 May 2014, when he attended
a consultation at the respondent’s offices. Thereafter the
appellant was given
his divorce file and went to see another attorney
on the same day. The discussion that took place at the meeting of 9
May 2014,
was confirmed in a letter addressed by Mr Kretzmann to the
appellant on 12 May 2014. The letter reads:
‘
Dear
Bruce,
McMILLAN
DIVORCE
1.
I refer to our meeting on Friday 9 May 2014.
2.
The Antenuptial Contract seems to contain an error and mistake which
may be attributable
to the drafter thereof and notary public (Nico
Schultz and Chris Kay) both of whom were in the employ of Bate Chubb
& Dickson
Inc. at the time. Without any admission of liability or
negligence, we have informed you that this may lead to a claim
against
our firm for which you should seek independent advice. I
confirm that in the circumstances we need to withdraw from
representing
you any further.
3.
In accord, we have now filed a Notice of Withdrawal of Acting
(attached). Your
new attorneys should file a Notice of Acting as soon
as possible.
4.
We wish you well.’
[38]
The period of prescription begins to run against a creditor when the
creditor has the minimum
facts which are necessary to institute
action.
[3]
As this Court recently held in
Fluxmans
Incorporated v Levenson
:
[4]
‘
Knowledge
that the relevant agreement did not comply with the provisions of the
Act is not a fact which the respondent needed to
acquire to complete
a cause of action and was therefore not relevant to the running of
prescription. This Court stated in
Gore
NO
para
17 that the period of prescription begins to run against the creditor
when it has minimum facts that are necessary to institute
action. The
running of prescription is not postponed until it becomes aware of
the full extent of its rights nor until it has evidence
that would
prove a case “comfortably”. The “fact” on
which the respondent relies for the contention that
the period of
prescription began to run in February 2014, is knowledge about the
legal status of the agreement, which is irrelevant
to the
commencement of prescription. It may be that before February 2014 the
respondent did not appreciate the legal consequences
which flowed
from the facts, but his failure to do so did not delay the date on
which the prescription began to run. Knowledge
of invalidity of the
contingency fee agreement or knowledge of its non-compliance with the
provision of the Act is one and the
same thing otherwise stated or
expressed differently. That the contingency fees agreements such as
the present one, which do not
comply with the Act, are invalid is a
legal position that obtained since the decision of this court in
Price
Waterhouse Coopers Inc
and
is therefore not a fact which the respondent had to establish in
order to complete his cause of action.
Section
12(3)
of the
Prescription Act requires
knowledge only of the material
facts from which the prescriptive period begins to run – it
does not require knowledge of
the legal conclusion (that the known
facts constitute invalidity) (Claasen v Bester
[2011] ZASCA 197
;
2012
(2) SA 404
(SCA)
.’
(Emphasis added.) (Footnote omitted.)
[39]
Section 12
requires knowledge only of the material facts from which
the prescriptive period begins to run ─ it does not require
knowledge
of the legal consequences.
[5]
Accordingly, the appellant’s cause of action was complete as
soon as he was informed on 9 May 2014 of the potential conflict
of
interest arising from the fact the respondent’s directors may
have drafted the antenuptial contract incorrectly. There
is no reason
in logic or in law, why he could not successfully have joined the
respondent as a third party in the divorce proceedings
at that stage,
claiming payment from it of any sum which he may be ordered to pay to
his former wife as a result of the respondent’s
negligence.
[40]
The appellant’s second contention that, due to the respondent’s
directors’
failure to concede liability, he could not have had
salient facts upon which to formulate a claim against the respondent
until
such time as the high court pronounced pertinently on the
validity of the antenuptial contract in October 2016, is also
rejected.
The Constitutional Court in
Links
[6]
held that it is not necessary for a party relying on prescription to
accept liability.
[41]
In conclusion, the appeal must be dismissed. The court a quo
correctly found that the appellant’s
claim, which he instituted
on 13 October 2017, had become prescribed. He acquired knowledge of
all the material facts on which
to institute his claim against the
respondent on 9 or 12 May 2014. Consequently, prescription began to
run on 9 or 12 May 2014
when the appellant was informed that there
was a problem with the antenuptial contract, arising from the
perceived conflict between
the provisions of clause 4 and clause 5.
That is the date when he acquired knowledge of all material facts on
which to institute
a claim for damages against the respondent.
Prescription did not commence to run on 18 October 2016 when Plasket
J delivered his
judgment on the invalidity of the antenuptial
contract. It may be that the appellant had not appreciated the legal
consequences
flowing from the facts, but his failure to do so did not
delay the date prescription commenced to run. Similarly, the
respondent’s
failure to concede liability did not delay the
date prescription began to run. In light of the conclusion I have
reached on the
prescription point, which is dispositive of the
appeal, it is unnecessary to consider the further issues raised in
the separation
order.
[42]
As regards the issue of costs, the respondent sought costs of two
counsel to be awarded. In my
view, the matter did not deserve the
services of two counsel. The issue for determination was a narrow
one, which, despite its
importance, was not complex. In the
circumstances, costs of only one counsel will be awarded.
[43]
In the result, the appeal is dismissed with costs.
Zondi
JA
Judge
of Appeal
Appearances:
For
appellant:
S H Cole
Instructed
by:
Cooper Conroy Bell & Richards Inc, East London
Webbers
Attorneys, Bloemfontein
For
respondent:
E A
S Ford SC (with him J J Nepgen)
Instructed
by:
Joubert, Galpin & Searle Inc, Port Elizabeth
c/o Bate Chubb
& Dickson Inc, East London
Honey
Attorneys, Bloemfontein
[1]
B v
B
[2014]
ZASCA 14.
[2]
Firestone
South Africa (Pty) Ltd v Genticuro AG
1977
(4) SA 298
(A) at 304D-F;
Newlands
Surgical Clinic (Pty) Ltd v Peninsula Eye Clinic (Pty) Ltd
[2015]
ZASCA 25
;
2015 (4) SA 34
(SCA) para 10.
[3]
Minister of Finance
and Others v Gore NO
[2006]
ZASCA 98
;
[2007] 1 All SA 309
(SCA);
2007 (1) SA 111
(SCA) para 17.
[4]
Fluxmans Incorporated
v Levenson
[2016]
ZASCA 183
;
[2017] 1 All SA 313
(SCA);
2017 (2) SA 520
(SCA) para 42.
[5]
Yellow Star Properties
1020 (Pty) Ltd v MEC, Department of Development Planning and Local
Government, Gauteng
[2009]
ZASCA 25
;
2009 (3) SA 577
(SCA);
[2009] 3 All SA 475
(SCA) para 37.
[6]
Links v Member of the
Executive Council, Department of Health, Northern Cape
Province
[2016]
ZACC 10
;
2016 (5) BCLR 656
(CC);
2016 (4) SA 414
(CC)
para
42.