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[2022] ZAFSHC 158
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Trollip v Phatshoane Henney Attorneys (3683/2018) [2022] ZAFSHC 158 (23 June 2022)
IN
THE HIGH COURT OF SOUTH AFRICA,
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 3683/2018
Reportable:
YES/NO
Of
Interest to other Judges: YES/NO
Circulate
to Magistrates: YES/NO
In
the matter between:
JUANITA
TROLLIP
Plaintiff
and
PHATSHOANE
HENNEY ATTORNEYS
First Defendant
PIETER
LABUSCHAGNE SKEIN
Second
Defendant
HEARD
ON:
19,
20 and 22 APRIL 2022
JUDGMENT
BY:
LOUBSER, J
DELIVERED
ON:
23
JUNE 2022
[1]
This is yet another case where a Court has to determine whether the
Plaintiff’s
claim has become prescribed by the effluxion of
time South African Courts have been seized with this question almost
on a daily
basis in recent years, with the result that there is a
plethora of judgments dealing with the issue. The judgements show
that in
each case, the applicable legal principles are time and again
weighed up against the particular facts to arrive are a justifiable
conclusion. This Court will follow the same course to determine
whether the Plaintiff’s claim has become prescribed or not.
[2]
The Plaintiff issued summons against the Defendants for damages
arising from the alleged
negligence of the Second Defendant in
pursuing a claim for bodily injuries against the Road Accident Fund
as a result of a motor
vehicle accident in which she was injured on
28 November 2009. It is alleged in the summons that the Plaintiff
instructed the Second
Defendant, who was then in the employment of
the First Defendant as an attorney and therefor acting in the course
and scope of
his employment with the First Defendant, to pursue her
claim. In their respective Pleas filed subsequently, the First and
Second
Defendant denied all the allegations of negligence on the part
of the Second Defendant. In addition, a Special Plea was raised in
the respective Pleas to the effect that the Plaintiff’s claim
had already become prescribed by the time that the summons
was served
on both Defendants on 24 July 2018.
[3]
In their Special Pleas, both the Defendants pleaded that the
delictual debt which
is the subject of the Plaintiff’s claim
had arisen and became due on the 10
th
June 2015, alternatively the 9
th
July 2015, being the date on which the Plaintiff acquired a complete
cause of action for the recovery thereof. It is pleaded that,
in the
circumstances, more than three (3) years have lapsed between the
delictual debt falling due and the institution of
the action,
resulting in the prescription of the claim in terms of Section 11(d)
of the Prescription Act
[1]
.
[4]
Where the Special Pleas rely on the date on which the Plaintiff
acquired a complete
cause of action, reference is obviously made to
the provisions of Sections 12(1), (2) and (3) of the said Act. Those
sections provide
as follows:
12.
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.
[S
12(1) subs by s 68 of Act 32 of 2007.]
(2)
If the debtor wilfully 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.
[S
12(3) subs by s 1 of Act 11 of 1984.]
[5]
In a surprising turn of events, the First and Second Defendants filed
an Amended Plea
by the Second Defendant on 1
st
March 2022,
that is some one and a half months before the trial was set to
commence. In this Amended Plea, the Second Defendant
conceded that he
was negligent in his conduct of the Plaintiff’s case in three
aspects. He persisted in his Special Plea,
however, although the
following was now inserted: that by 10 June 2015, alternatively the
9
th
July 2015, the Plaintiff “could by exercising
reasonable care have become aware….” and “acquired
knowledge
of the identity of the debtor and the facts from which the
debt arose”. It needs mentioning here that in a Replication
filed
by the Plaintiff subsequent to the filing of the original
Pleas, the Plaintiff alleged that she had only become aware of the
identity
of the debtor and the facts of claim against them after her
consultation with her present attorneys on 19 July 2016. In the
alternative,
it was pleaded in the Replication that the Second
Defendant had wilfully prevented her from coming to know of the
existence of
the debt, causing prescription to commence running only
on the second date, namely 19 July 2016.
[6]
Subsequent to the concession made in the Amended Plea, the merits of
the Plaintiff’s
claim became settled between the parties on 9
April 2022 in the amount of R 2 261 204.00, a mere 10 days
before the commencement
of the trial proceedings. The only dispute
remaining between the parties is now whether the Plaintiff can
recover the amount agreed
upon, or whether her claim against both
parties has become prescribed.
[7]
At this point it would be appropriate to turn to the negligence claim
against the
Second Defendant. It appears to be common cause that
after the Second Defendant received his mandate from the Plaintiff,
he sent
her to a general practitioner, Dr. Khan, on 19 September
2012, who them submitted a medico-legal report. On the basis of this
report,
Second Defendant issued summons against the Road Accident
Fund out of the Bloemfontein Regional Court for an amount of R
223 000.00.
During January 2015, and after the five (5) year
prescription period against the Road Accident Fund had already
expired, the Second
Defendant caused the Plaintiff to be assessed by
an occupational therapist and an industrial psychologist, and their
reports were
submitted to an actuary, who assessed her loss of income
in amounts far in excess of R 400 000. This amount is mentioned
because
it represented the monetary jurisdictional limit of the
Regional Court at the time. Because the matter could not be transfer
to
the High court or summons re-issued due to prescription the Second
Defendant proceeded with the case in the Regional Court, limiting
the
amount of the claim to R 400 000. Eventually judgment by default
was obtained for such limited amount. After deduction
of the Second
Defendants fees and disbursements, the Plaintiff received a total
amount of some R 290 000.00 for her damages.
[8]
In her Particulars of Claim the Plaintiff alleged that the Second
Defendant acted
negligently in that he –
8.1
Failed to properly quantify the matter;
8.2
Issued summons out of the incorrect forum when the quantum of the
matter
was above the jurisdiction of such court;
8.3
Despite the Plaintiff having sustained severe orthopaedic injuries,
she was not referred
to an orthopaedic surgeon timeously for the
purposes of a medico-legal report;
8.4
Failed to timeously assess the quantum of the matter before it became
prescribed.
8.5
Allowed the matter to become prescribed.
8.6
Disentitled the Plaintiff to fully and properly prosecute her claim
for recovery of the
quantum of damages occasioned by her injuries,
against the Road Accident Fund; and
8.7
Advised the Plaintiff that she had no option but to accept the
jurisdiction of the Bloemfontein
Regional Court and thereby limited
her compensation claimable to R 400 000.00.
It
is further alleged in the Particulars of Claim that the Plaintiff
suffered damages in the amount of R 3 094 726.97
because of
the First, alternatively the Second, alternatively the joint
negligence of the First and Second Defendants.
[9]
In his abovementioned Amended Plea, the Second Defendant admitted
that he was negligent
in that he –
9.1
Failed to properly assess the value of the Plaintiff’s claim
against the Road Accident
Fund before instituting action in the
prosecution of the Plaintiff’s claim against the Road Accident
Fund in the Regional
Court.
9.2
Failed to timeously either transfer the Plaintiff’s action to
the High Court, or reinstitute
action in the prosecution of the
Plaintiff’s claim against the Road Accident Fund in the High
Court, and
9.3
Caused the Plaintiff’s claim against the Road Accident Fund to
be limited to the monetary
value of R 400 000.00.
[10]
When the remaining issue of prescription came before this court, the
First and Second Defendants
called only one witness to testify,
namely the Second Defendant himself. This was done in view if the
legal principle that the
party alleging that a claim has become
prescribed, bears the onus of proving that the Plaintiff’s
claim has prescribed by
the given date. No other witness was called
to testify, by either of the parties.
[11]
In his testimony the Second Defendant explained the relevance of the
dates of 10 June 2015 and
9 July 2015, being the dates relied upon by
the Defendants in their Special Plea. He testified that on 10 June
2015 he merely notified
the Plaintiff by e-mail of the calculations
of the actuary, and that the limit of the monetary jurisdiction in
the Regional Court
was only R 400 000.00. On 9 July 2015 he
informed her, again by e-mail, that he had discussed the issue of the
transfer of
her claim to the High Court with two advocates, and it
now appears that it cannot be done. He advised her that they would
therefore
have to stand by the claim of R 400 000.00 in the
Regional Court. The Plaintiff was upset about this, he testified.
[12]
The Second Defendant further testified the following, which is
relevant to the present enquiry:
12.1
He conceded that the date of 10 June 2015 can be disregarded because
the Plaintiff was then still under
the impression that the case was
going to be transferred to the High Court.
12.2
The Plaintiff is a lay person as far as the law is concerned.
12.3
When he received the calculations from the actuary in July 2015, he
realised that the action instituted
in the Regional Court was due to
his own negligence.
12.4
He therefore knew in July 2015 that he would be liable should the
Plaintiff claim from him.
12.5
In the e-mail of 9 July 2015 he did not inform the Plaintiff that the
limited claim was the result
of his negligence, because he did not
regard it as his duty to inform her accordingly. He was not aware of
such a duty.
12.6
He also did not regard it as his duty to refer the Plaintiff to
another attorney in the circumstances.
12.7
On 9 July 2015 the Plaintiff was therefore unaware that she could
claim from him, but she was aware
that she had a bigger claim than
the R 400 000.00.
12.8
The Plaintiff did not know on the 9 July 2015 that she could also
claim form the First Defendant, because
he did not inform her as
such. He was not aware of a duty to inform her accordingly.
12.9
He created the impression with the Plaintiff that the limited claim
was the result of circumstances
beyond his control, and he failed to
inform her of his omission relating to the obtaining of reports.
12.10
As a result of her dissatisfaction with the situation, the Plaintiff
consulted with another attorney on 19 July 2016,
where after she was
advised that she potentially had a claim against the Defendants.
[13]
This is then the evidence and the facts of the matter, which must now
be weighed up against the
legal principles applicable to the issue of
prescription.
[14]
Probably the decision most quoted when it comes to determining when a
debt becomes due in terms
of the Prescription Act, is the unanimous
decision of the Constitutional Court in Links v Department of
Health
[2]
. In that case, the
Plaintiff’s thumb was amputated in hospital, and he was
apparently not aware that the amputation was due
to the negligence of
the hospital staff. When he was later advised of the negligence, he
instituted action, but prescription of
the claim was raised as a
defence.
[15]
Firstly, the Court referred with approval to the following passage in
the case of Truter and
another v Deysel
[3]
.
“Debt due’ means a debt, including a delictual debt,
which is owing and payable. A debt is due in this sense when
the
creditor acquires a complete cause of action for the recovery of the
debt, that is, when the entire set of facts which the
creditor must
prove in order to succeed with his or her claim against the debtor is
in place or, in other words, when everything
has happened which would
entitle the creditor to institute action and to pursue his or her
claim.” The court also referred
to another passage
[4]
in the Truter case where “ cause of action” for the
purposes of prescription was defined as: “…every fact
which it would be necessary for the plaintiff to prove, if traversed,
in order to support his right to the judgment of the Court.
It does
not comprise every piece of evidence which is necessary to prove each
fact, but every fact which is necessary to be proved.”
[16]
The court further quoted the following passage in the case of
Minister of Finance and others
v Gore NO
[5]
to explain the meaning of “knowledge” in relation to
prescription: “ 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.”
[17]
The court then came to the following conclusions:
17.1
“Until the applicant had knowledge of facts that would have led
him to think that possibly there
had been negligence and that this
had caused his disability, he lacked knowledge of the necessary facts
contemplated in Section
12 (3)”
[6]
17.2
“A firm finding that the applicant did not know what caused his
condition as at 5 August 2006
can, therefore, be justifiably made.
That was a material fact a litigant wishing to sue in a case such as
this would need to know.”
[7]
17.3
“Without advice at the time from a professional or expert in
the medical profession, the applicant
could not have known what had
caused his condition. 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 a reasonable person to
suspect that something has gone wrong and to seek advice.”
[8]
[18]
These principles now have to be applied to the facts, and especially
to the evidence of the Second
Defendant, to arrive at a justifiable
conclusion. The Defendants rely on the very same facts and evidence
in their contention in
this Court that the Plaintiff had known by 9
July 2015 that her claim was limited in the Regional Court while the
actuarial calculations
obtained after issue of summons in the
Regional Court, suggested that her claim was much higher than the
limit in that Court. She
also knew on the date that her action could
not be transfer to, or reinstituted in the High Court. On the basis
of this knowledge,
the Plaintiff knew or must have known on 9 July
2015, or could have established it by exercise of reasonable care,
that she had
a claim against the attorney, the argument went.
[19]
In my view, however, this argument is undermined by the evidence of
the Second Defendant. His
testimony that the Plaintiff is a lay
person as far as the law is concerned, and that he created the
impression with the Plaintiff
on 9 July 2015 that the limited claim
was the result of circumstances beyond his control and that he failed
to inform her of his
omissions relating to the obtaining of reports,
is decisive. It conveys the message that the Plaintiff did not have
all the facts,
nor did she know that the Second Defendant was
responsible for her predicament. This brings to mind what was stated
in the Links-case,
namely that until the applicant had knowledge of
facts that would have led him to think that possibly there had been
negligence
and that this had caused his disability, he lacked
knowledge of the necessary facts contemplated in Section 12 (3) of
the Prescription
Act.
[9]
[20]
A firm finding that the Plaintiff did not know what caused her
predicament on 9 July 2015, can
therefore justifiably be made. That
was a material fact that a litigant wishing to sue in a case such as
this, would need to know.
In this respect the Court is also mindful
of what “knowledge” entail, namely that mere opinion or
supposition is not
enough. For there to be knowledge, the belief must
be justified.
[21]
The Second Defendant further testified that, on 9 July 2015, the
Plaintiff was not aware that
she could claim from him or the First
Defendant. She was only aware of the fact that she had a bigger claim
than the R 400 000.00.
He testified that he did not inform her
that her limited claim was the result of his negligence, and that she
could seek the assistance
of another attorney in the circumstances.
He did not regard it as his duty to inform her as such, he testified.
[22]
As for the duty to inform, I cannot agree with the Second Defendant.
When there is a conflict
between an attorney’s own interest and
the interest of a client, the interests of the client must certainly
prevail.
[10]
This is not the
point however. The point is that the Second Defendant did not inform
the Plaintiff, therefore wilfully preventing
the Plaintiff to know of
the existence of the debt.
[23]
In the premises, I find that the Defendants have failed to prove that
the Plaintiff’s claim
had become prescribed. Only the question
of costs remains to be decided.
[24]
A feature that stands out in this respect, is that the Defendants
persisted in the Special Plea
of prescription while the Second
Defendant was well aware of the fact that he had withheld crucial
information from the Plaintiff
on 9 July 2015, which caused her to
lack the necessary knowledge on that day to realise that there had
been negligence and that
this had caused the claim to be limited. It
speaks for itself that the Plaintiff had to incur costs to resist the
Special Pleas
and, in the prevailing circumstances, I can find no
reason why the Plaintiff should be left out of pocket.
[25]
The following orders are made:
1.
The Special Pleas of Prescription entered by the First and Second
Defendants
are dismissed.
2.
First and Second Defendant are liable to compensate the Plaintiff in
the amount
R 2 261 204.00 plus interest a tempore morae.
3.
First and Second Defendant shall pay the Plaintiff’s taxed or
agreed costs
on an attorney and client scale, which will include the
following, but will not be limited to:
3.1
The costs of the assessment of the Plaintiff, preparation of the
medico-legal reports, reservation,
preparation and consultation
costs, which includes consultations with counsel of Dr. Versveld, Ms.
Donaldson, Mr. Wittaker and
Mr. Weideman.
3.2
The travel, accommodation and attendance fees for purposes of trial
for Mr. Weideman for the trial on
19 to 20 April 2022.
3.3
The costs of both junior and senior counsel for trial on 19, 20 and
22 April 2022.
3.4
The costs for the travel and accommodation of the Plaintiff’s
attorney and counsel for the trial
on 19 and 20 April 2022.
P.
J. LOUBSER, J
For
the Plaintiff:
Adv. J.J. Wessels SC with Adv. C Vallaro
Instructed
by:
Munro,
Flowers & Vermaak Attorneys
c/o
Lovius Block Attorneys, Bloemfontein
For
the Defendants:
Adv. F. Grobler SC
Instructed
by: Ditsela
Inc.
c/o
Phatshoane Henney Attorneys, Bloemfontein
[1]
Act 68 of 1969
[2]
2016(4) SA 414 (CC)
[3]
[2006] ZASCA 16
;
2006 (4) SA 168
at par 16
[4]
Par 19 in the Truter case
[5]
2007(1) SA 111 (SCA) par 18
[6]
Par 45 of the Judgement
[7]
Par 46 of the Judgement
[8]
Par 47 of the Judgement
[9]
See Par 17.1 above
[10]
See for instance Ekman v Venter & Volschenk Attorneys and
another ZAGPPHC 358