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[2011] ZASCA 231
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Gunase v Anirudh (826/2010) [2011] ZASCA 231; 2012 (2) SA 398 (SCA) (30 November 2011)
11
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case No: 826/2010
In the matter between:
HAROLD GUNASE
…...............................................................................
Appellant
and
RAMESH ANIRUDH
…..........................................................................
Respondent
Neutral citation:
Harold Gunase v Ramesh
Anirudh
(826/10)
[2011] ZASCA 231
(30 November 2011)
Coram:
BRAND, MAYA and SERITI JJA
Heard:
21 November 2011
Delivered:
30 November 2011
Summary:
Prescription - ss 11, 12(1)
and (3) of
Prescription Act 68 of 1969
– claim prescribes after
a period of three years from date upon which claim arose -
prescription starts to run as soon as
creditor knows or ought to know
identity of debtor and facts from which debt arose – duty on
creditor to exercise reasonable
care in this regard –
respondent failed to exercise reasonable care.
ORDER
On appeal from:
KwaZulu-Natal High Court, Durban
(Hughes-Madondo AJ sitting as court of first instance):
The appeal is upheld with costs.
(2) The order of the court a quo is set aside and
replaced by the following:
‘
The special plea of
prescription is upheld and the claim is dismissed with costs.’
__________________________________________________________________________
JUDGMENT
SERITI JA (JJA concurring):
Introduction
[1] The respondent instituted a claim for damages
against the appellant in the KwaZulu-Natal High Court. The appellant
pleaded to
the particulars of claim and filed a special plea, raising
the defence of prescription.
[2] In terms of rule 33(4) of the Uniform Rules the
issues relating to the special plea were separated from the other
issues in
the action. The matter was set down for the determination
of the special plea. On the date of the hearing evidence was led and
the court a quo (Hughes-Madondo AJ) dismissed the special plea and
reserved the costs of the preliminary hearing. The matter is
before
this Court with leave of the court a quo.
Background Facts
[3] On 9 July 1992 at about 18h20 the respondent, a
pedestrian, was knocked down by a motor-vehicle with registration
numbers ND
219134, which was driven by Mr Goundon. The respondent
sustained serious physical injuries in the said accident and he was
hospitalised
for a period of about one year.
[4] During October 1993 the respondent allegedly
instructed the appellant who then practiced as an attorney to lodge a
third party
claim for him in terms of the Multilateral Motor Vehicle
Accidents Fund Act 93 of 1989 ( the MVA Act). The respondent alleges
that
a month after the first consultation with the appellant, he
provided the appellant with hospital records and police documents and
his personal documents. The respondent alleges that he was informed
by the appellant that they were going to work on his case and
he must
visit regularly to enquire about progress.
[5] Every month he visited appellant’s office for
a progress report. On one such visit he was informed that his claim
was
lodged and that they were waiting for the MVA Fund to advise them
about the Fund’s attitude towards his claim.
[6] At some stage, he visited the respondent’s
office again and he found that the offices had been closed; and that
he was
informed that they had moved to another office. He went to the
new premises and he also found that office to be closed. In 2000
the
appellant’s practice as an attorney was closed down and the
respondent became aware of that fact in 2001. During the
period 2000
to 2004 he did not go to the defendant’s offices or contact any
other person for assistance.
[7] Later, he was informed that some of the files of the
appellant, who had ceased practising as an attorney, were taken over
by
an attorney Ms Aggie Govender (Govender). His sister contacted
Govender’s office to find out if his file was with them, and
she was informed that they would check. His sister phoned Govender’s
offices on five occasions during March 2005. On the
last of these
occasions she was informed that his file was lost. He
never went to the offices of Govender.
[8] On 28 April 2005 he consulted with Ms Anushka
Parbhoo (Parbhoo) his attorney of record, after being advised by a
friend to do
so. He requested her to take over his third party claim.
He explained to her the history of his claim and that the defendant
who
he had initially instructed had ceased practising as an attorney.
He also informed her that Govender, who had taken over the files
of
the defendant, might have taken his file. Parbhoo informed him to get
all the necessary documents relating to his claim and
come back to
see her so that she could find out what had happened to his claim. No
file was opened for him.
[9] On 18 January 2006 the respondent went to see
Parbhoo. He took all the relevant documents to her, a file was opened
for him
and a proper consultation ensued. The respondent told his
attorney that he only came back at that time as it took a while long
to gather the necessary documents. On 23 January 2006 Parbhoo
telephoned the Road Accident Fund (RAF) in order to enquire if the
respondent’s claim had been lodged and establish that it was
not. The respondent’s identification number was used to
make
enquiries.
[10] On 2 February 2006 Parbhoo wrote a letter to
KwaZulu-Natal Law Society enquiring about the date on which Govender
took over
the practice of the appellant, who had since joined the
bar. On 21 February 2006 the KwaZulu-Natal Law Society advised her
that
Govender took over the firm of the appellant on 1 July 2001. On
30 March 2006 Parbhoo addressed a letter to Govender enquiring if
the
respondent’s file was with her. On 25 April 2006 Govender
replied and said that she did not have the respondent’s
file
and that she did not receive it from the appellant.
[11] On 23 June 2006 Parbhoo addressed a letter of
demand to the appellant alleging that the respondent’s claim
prescribed
because of his negligence and claiming substantial damages
allegedly suffered by the respondent as a result. On receipt of the
letter of demand the appellant forwarded it to the Attorney’s
Insurance Indemnity Fund. On 27 July 2006 Glenrand MIB Risk
Services,
Managers of the Attorneys Fidelity Fund Professional Indemnity
Insurance Scheme addressed a letter to Govender and advised
her that
the letter she addressed to the appellant was handed to them. They
requested that pleadings be held in abeyance so as
to offer them an
opportunity to investigate the matter.
[12] There was various correspondence exchanged between
Parbhoo and Glenrand MIB, but the matter could not be settled. The
last
correspondence from Ms Parbhoo to Glenrand MIB is dated 26
October 2007. It is an email and in it she said:
‘I note
with regret that despite our several requests to settle this matter
amicably, we have to date not heard from yourselves
or your client.
In light of the above, we will have no alternative but to proceed
with High Court litigation herein.’
On 21 October 2008 summons was issued.
Prescription
[13] Article 55 of the MVA Act provides that a right to
claim compensation from the MVA Fund or its appointed agents in
respect
of claims arising from the driving of a motor vehicle in the
case where the identity of either the owner or driver thereof has
been established, shall become prescribed upon the expiry of a period
of three years from the date upon which the claim arose. Section
11(
d
) of the
Prescription Act 68 of 1969 (the
Prescription Act) states
that a debt
shall prescribe after three years unless an Act of Parliament
provides otherwise. There is no suggestion from any of
the parties
that the three-year prescription period does not apply in the case of
the debt involved in this case. Section 12(1)
and (3) read 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.’
[14] Section 12(3) imposes a duty on the creditor to
exercise reasonable care to obtain knowledge of the identity of the
debtor
and the facts from which the debt arises. A creditor is not
allowed to postpone the commencement of the running of prescription
by his failure to take necessary steps. In
Burley
Appliances Ltd v Grobbelaar NO & others
2004
(1) SA 602
(C) at 607G Nel J said:
‘…the
declarator is contrary to the established principle that a creditor
cannot by supine inaction arbitrarily and
at will postpone the
commencement of prescription.’
See also
Consol
Ltd t/a Consol Glass v Twee Jonge Gezellen (Pty)Ltd & another
[2005] 4 All SA 517
(C)para 26 and
Uitenhage
Municipality v Molloy
[1997] ZASCA 112
;
1998 (2) SA 735
(SCA)
at 742A-C.
[15] In
Drennan Maud &
Partners v Pennington Town Board
[1998] ZASCA 29
;
1998 (3) SA
200
(SCA) at p 209F-G, Oliver JA said:
‘
[s]ection 12(3) of the Act provides that a
creditor shall be deemed to have the required knowledge “if he
could have acquired
it by exercising reasonable care.” In my
view, the requirement “exercising reasonable care”
requires diligence
not only in the ascertainment of the facts
underlying the debt, but also in relation to the evaluation and
significance of those
facts. This means that the creditor is deemed
to have the requisite knowledge if a reasonable person in his
position would have
deduced the identity of the debtor and the facts
from which the debt arises.’
In
Leketi v Tladi NO & others
[2010] 3 All SA 519
(SCA) para 18 Mthiyane JA said:
‘
[I]t seems to me that the adverse operation
of section 12(3) is not dependent upon a creditor’s subjective
evaluation of the
presence or absence of “knowledge” or
minimum facts sufficient for the institution of a claim. In terms of
section 12(3)
of the
Prescription Act, the
“deemed knowledge”
imputed to the “creditor” requires the application of an
objective standard rather than
a subjective one. In order to
determine whether the appellant exercised “reasonable care,”
his conduct must be tested
by reference to the steps which a
reasonable person in his or her position would have taken to acquire
knowledge of the “fraud”
on the part of Albert.’
The impact of
s 12(1)
read in conjunction with
s 12(3)
is that prescription starts to run as soon as the creditor has or
ought to have knowledge of the identity of the debtor and the
facts
from which the debt arises.
[16] The accident in which the respondent was involved,
as stated earlier, took place on 9 July 1992. His claim against the
MVA
Fund, in terms of article 55 of the MVA Act prescribed on 8 July
1995.
[17] The respondent alleges that after giving
instructions to the appellant to lodge his claim with the MVA Fund,
he regularly visited
the appellant’s offices to find out about
progress made in his claim. On 1 July 2001 he went to the offices of
the appellant
and he found them closed. From July 2001 to April 2005
he did not take any steps to ascertain what transpired with his
claim. When
asked why he waited for such a long period before
consulting with his attorney of record he said: ‘I waited for
such a long
period because I did not know what to do until my friend
advised me to check for another attorney’. He consulted with
his
attorney of record on 28 April 2005. His attorney requested him
to bring her all relevant documents and he took all the relevant
documents to her only on 18 January 2006. After the first
consultation, he only saw her 8 months later.
[18] It is clear to me, applying an objective standard
that the respondent failed to exercise reasonable care as required by
s 12(3)
of the
Prescription Act. If
he had, he would have known that
the appellant did not lodge his claim at least shortly after the
appellant ceased practising as
an attorney. The appellant’s
offices were closed from 1 July 2001, and if the respondent had made
enquiries at RAF, or had
consulted another attorney, the
possibilities are that he could have known during 2001 that the
appellant had not lodged his claim
with the RAF. He would have gained
knowledge of the facts from which his claims arose during 2001.
[19] The respondent consulted with his attorney of
record on 18 January 2006 when he gave her the documents she
requested. On 24
January 2006, his attorney, utilising his
identification number, enquired from the RAF if the respondent’s
claim was lodged
and she was informed that no such claim was lodged.
The attorney received an answer from the RAF in six days.
The evidence reveals that the respondent’s failure
to institute action timeously was caused by his inaction and not his
inability
to obtain knowledge of the relevant facts timeously.
[21] The respondent issued summons against the appellant
on 21 October 2008. In its judgment, the trial court said:
‘
[I] therefore conclude, that the earliest,
the plaintiff could have been in a position where he had every fact
necessary for him
to prove and support him attaining a judgment of
the court, was on the 21 January 2006. The plaintiff’s claim
against the
defendant had not prescribed when summons was served on
the defendant on the 11 November 2008.’
It is clear that the trial court did not consider
s
12(3)
of the
Prescription Act. If
the trial court was referred to and
considered
s 12(3)
, it would have been clear to the trial court that
if the respondent had exercised reasonable care he could have
acquired knowledge
that his claim was never lodged with the RAF much
earlier than January 2006, either in 2001 or the latest April or May
2005.
[22] In my view, the appeal should succeed with costs. I
therefore make the following order:
(1) The appeal is upheld with costs.
(2) The order of the court a quo is set aside and
replaced by the following:
‘
The special plea of
prescription is upheld and the claim is dismissed with costs.’
__________________
W L SERITI
JUDGE OF APPEAL
APPEARANCES:
For Appellant: R Pillemer
Instructed by:
Nichols Attorneys - Durban
For Respondents: CD Pienaar
Instructed by:
Du Toit Havemann and Lloyd Attorneys - Durban