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[2022] ZAFSHC 213
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Phatshoane Henney Attorneys and Another v Trollip (3683/2018) [2022] ZAFSHC 213 (1 September 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:
PHATSHOANE
HENNEY ATTORNEYS
First
Applicant
PIETER
LABUSCHAGNE SKEIN
Second
Applicant
and
JUANITA
TROLLIP
Respondent
HEARD
ON:
26
AUGUST 2022
JUDGMENT
BY:
LOUBSER,
J
DELIVERED
ON:
1
SEPTEMBER 2022
[1]
This is an application for leave to appeal against the dismissal of a
Special Plea
of prescription with costs on an attorney and client
scale. The Special Plea was filed by the two Applicants, who featured
as the
two Defendants in the trial proceedings. The Second Applicant
was in the employment of the First Applicant as an attorney at the
time of the events giving rise to the litigation.
[2]
The Respondent claimed damages from the two Applicants based on the
alleged negligence
of the Second Applicant in his conduct of her case
against the Road Accident Fund. The Second Applicant had instituted
her claim
in the Regional Court, while it later transpired that the
value of her claim was much higher than the maximum amount that could
be claimed in the Regional Court. By the time the Second Applicant
realized that this was the position, it was too late for the
matter
to be transferred to the High Court or summons to be re-issued. The
Respondent had to be content with the maximum amount
of only
R400 000.00 awarded by the Regional Court for the bodily
injuries she suffered. Hence the claim for the balance of
her damages
against the Applicants.
[3]
In their respective Pleas, the Applicants raised a Special Plea of
prescription, alleging
that the Respondent’s claim became due
on 10
th
June 2015, alternatively the 9
th
July
2015, being the date on which the Respondent acquired a complete
cause of action for her claim. Summons in the action was
only served
on 24 July 2018, and therefore more than (3) years have lapsed
between the debt falling due and the institution of
the action, it
was pleaded. In the Plea, the Applicants denied any negligence.
[4]
In a Replication filed by the Respondent, she
alleged that she had only become aware of the identity of the debtor
and the facts
of the claim after she had consulted with her new
attorneys on 19 July 2016. In the alternative, she pleaded that the
Second Applicant
had wilfully prevented her from coming to know of
the existence of the debt, causing prescription to commence running
only on 19
July 2016.
[5]
Shortly before the proceedings came before this Court, the Applicants
filed an Amended
Plea in which the negligence of the Second Applicant
was conceded. It was now admitted that he -
5.1
Failed to properly assess the value of the Respondent’s claim
against the Road Accident Fund before
instituting action in the
prosecution of the Respondent’s claim against the Road Accident
Fund in the Regional Court.
5.2
Failed to timeously either transfer the Respondent’s action to
the High Court, or reinstitute action
in the prosecution of the
Respondent’s claim against the Road Accident Fund in the High
Court.
5.3
Caused the Respondent’s claim against the Road Accident Fund to
be limited to the monetary value of
R 400 000.00.
[6]
Otherwise, the Applicants persisted in their Special Plea when they
filed their Amended
Plea.
[7]
When the matter came before this Court, the Court was called upon to
first adjudicate
the issue of prescription as raised in the Special
Plea. Only one witness testified in the process, namely the Second
Applicant
himself. He was called by the Applicants to testify. After
his testimony, the Respondent was not called to the witness stand,
and
the Respondent’s case was closed.
[8]
In his testimony, and more particularly under cross-examination, the
Second Applicant
testified the following:
8.1
He conceded that the date of 10 June 2015 can be disregarded because
the Respondent was then still under the
impression that the case was
going to be transferred to the High Court.
8.2
He conceded that the Respondent is a lay person as far as the law is
concerned.
8.3
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.
8.4
He therefore knew in July 2015 that he would be liable should the
Respondent claim from him.
8.5
On 9 July 2015 he did not inform the Respondent 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.
8.6
He also did not regard it as his duty to refer the Respondent to
another attorney in the circumstances.
8.7
On 9 July 2015 the Respondent 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.
8.8
The Respondent did not know on the 9 July 2015 that she could also
claim form the First Applicant, because
he did not inform her as
such. He was not aware of a duty to inform her accordingly.
8.9
He created the impression with the Respondent 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.
8.10
As a result of her dissatisfaction with the situation, the Respondent
consulted with another attorney on 19 July 2016,
whereafter she was
advised that she potentially had a claim against the Applicants.
[9]
This Court then found in the light of this evidence by the Second
Applicant that the
Respondent did not have all the facts on 9 July
2015, nor did she know that it was the Second Applicant who was
responsible for
her predicament. The Court found that there was
indeed a duty upon Second Applicant to inform the Respondent of these
facts, and
by his failure to do so, he had wilfully prevented the
Respondent to know of the existence of the debt. The Court then found
that
the Applicants have failed to prove that the Respondent’s
claim had become prescribed. This finding was based on the provisions
of
Section 12
(1), (2) and (3) of the
Prescription Act 68 of 1969
.
[10]
At the hearing of this application for leave a number of grounds for
the intended appeal were
raised on behalf of the Applicants, one of
them being that the Court had erred in finding that there was a duty
on the Second Applicant
to inform the Respondent of his omissions and
that she could claim from him. It soon became clear, however, that
the main challenge
was directed at the Court’s finding that the
Respondent did not have the required knowledge on 9 July 2015 to
realize that
possibly there had been negligence on the side of the
Second Applicant, and that the Respondent therefore did not know what
caused
her predicament on that date.
[11]
Mr. Grobler, appearing for the Applicants, submitted that on 9 July
2015, the Respondent knew
that something had gone wrong. In addition,
she knew that her claim was limited in the Regional Court, while the
actuarial calculations
obtained after the issue of summons in the
Regional Court, suggested that her claim was much higher than the
limit in that Court.
She also knew that her action could not be
transferred to, or re-instituted, in the High Court. On the basis of
this knowledge,
she must have known, or could have established it by
the exercise of reasonable care, that she had a claim against her
attorney,
the argument went. Mr. Grobler submitted that the specific
grounds of negligence were therefore irrelevant in establishing
whether
the Respondent had the required knowledge.
[12]
I respectfully do not agree. In
Links
v Department of Health
2016
(4) SA
414
(CC)
the
Constitutional Court held unanimously as follows in par 45 of its
Judgement: “
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).” And in par 46 of the
Judgement: “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 that a litigant wishing to sue in a case
such as this would need to know.”
[13]
In the premises, I am therefore of the view that there is not a
reasonable prospect that a court
of appeal would come to a different
conclusion on this main point of contention. As for this Court’s
finding on the duty
of an attorney, the reality remains that the
Second Applicant did not inform the Respondent of the facts, whether
he had the duty
to inform her as such, or not. Consequently, I do not
think that this ground of appeal has the potential of altering the
outcome
of the proceedings on appeal. The remaining grounds of
appeal, for instance that the Court has erred in respect of certain
facts
of the case fall in the same category, in my view. For
instance, it was submitted that this Court should have taken into
account
that the Respondent was never called to testify about the
knowledge she had on 9 July 2015, and that the Court should have held
it against her. However, the onus of proof was on the Applicants, and
not on the Respondent. The Respondent probably felt that
it was not
necessary to testify in view of what the Second Applicant had
testified.
[14]
There are two remaining grounds of appeal, however, that needs to be
mentioned. The first is
that the Court erred by ordering the
Applicants to pay costs on a punitive scale. This order of costs was
made because the Applicants
persisted in their Special Plea on
prescription while the Second Applicant was well aware of the fact
that he had withheld crucial
information from the Respondent, which
caused her to lack the necessary knowledge to the effect that there
had been negligence
on the part of her attorney. This Court found
that in such circumstances, the Respondent should not be left out of
pocket.
[15]
The second is that this Court erred by ordering the Applicants to pay
the fees of a witness by
the name of Weideman. Now Weideman did not
testify in the proceedings, but he was present at the Court as an
expert attorney to
testify that the Second Applicant was negligent in
the conduct of the Respondent’s case. After the testimony of
the Second
Applicant, the Respondent obviously did not regard it
necessary to call him anymore. As far as these two grounds are
concerned,
I therefore do not think that there is a reasonable
prospect that another court would come to different conclusion.
[16]
In the premises, the following order is made:
1.
The Application for leave to appeal is dismissed with costs.
P.
J. LOUBSER, J
For
the Applicants: Adv.
J. F. Grobler SC
Instructed
by:
Ditsela Inc.
Attorneys, Pretoria
c/o
Phatshoane Henney Attorneys, Bloemfontein
For
the Respondent:
Adv.
J.J. Wessels SC
Instructed
by: Munro,
Flowers & Vermaak, Johannesburg
c/o
Lovius Block Attorneys, Bloemfontein