About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: North Gauteng High Court, Pretoria
SAFLII
>>
Databases
>>
South Africa: North Gauteng High Court, Pretoria
>>
2018
>>
[2018] ZAGPPHC 725
|
|
Moreotlotlo v Monama (45608/2012) [2018] ZAGPPHC 725 (15 March 2018)
REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH
AFRICA
GAUTENG DIVISION, PRETORIA
CASE
NO: 45608/2012
15/3/2018
In
the matter between:
KOKETSO
FRIEDA
MOREOTLOTLO
PLAINTIFF
And
HIS
LORDSHIP, MR
JUSTICE
DEFENDANT
RAMARUMO
MONAMA (J)
JUDGMENT
MOKGOHLOA DJP
1.
The
plaintiff, who is described in the amended particulars of claim as 'a
housewife born on 08 March 1933', was injured in a motor
vehicle
accident around the area of Mafikeng in the North West on 5 August
1989. The accident occurred when the driver of a bus
in which the
plaintiff was a passenger lost control of the bus which then collided
with an unknown object and overturned.
2.
Shortly
after the accident, the plaintiff instructed the defendant who at
that time practised as an attorney in Mmabatho, Mafikeng,
to recover
compensation from the then Multilateral Motor Vehicle Accident Fund
(now RAF) for damages she had sustained as a consequence
of her
injuries.
3.
The
plaintiff's action is to recover damages from the defendant for
having allowed her claim to prescribe. The action is based on
an
alleged professional negligence.
4.
In
her amended particulars of claim, the plaintiff pleaded that:
‘7. The
Defendant had in fact informed the Plaintiff that he did so prosecute
her claim timeously but advised her from time to time that he was
unable to recover any damages from those responsible in that
the Road
Accident Fund was in serious financial difficulty and as a result
whereof it was unable to make payment of the amount
due to her at
that stage but that he would report to her at a stage when the Road
Accident Fund was in fact able to discharge her
claim.
8.
The
Plaintiff became disillusioned during the year 2009 and made
enquiries from other attorneys with regard (to) what she was told
by
the Defendant and as a result she instructed her attorneys of record
to contact the Defendant so as to ascertain the status
of the
Plaintiff's claim and whereafter they were informed by the Defendant
that the claim had not in fact been prosecuted. This;
notwithstanding
the representations and undertakings aforesaid.
12. The
Defendant had breached his undertakings aforementioned or
alternatively had
failed to exercise the degree of care required of
the Defendant under the aforementioned circumstances and for which
the Defendant
is liable to compensate the Plaintiff in that
Plaintiff's claim had as a result become prescribed against all of
those responsible
to have compensated her for the aforementioned
losses.'
5.
The
defendant raised a special plea of prescription.
6.
It
appears that during a previous trial date, an order was granted in
terms of rule 33(4) of the Uniform Rules of Court directing
that the
special plea be tried and determined separately from the other issues
in the action.
7.
In terms of Section 23 (1) of the Road
Accident Fund Act (RAF Act)
[1]
,
as it read prior to the amendment in terms of Act 19 of 2005, the
plaintiff's claim had to be lodged in terms of Section 24 of
the RAF
Act, within three years of the date of the collision, i.e. by 4
August1992. Thereafter, any action necessary to enforce
the claim had
to be instituted within five years of the date of the collision, i.e.
by 4 August 1994.
8.
The
debt in issue is one within the meaning of Section 11 (d) of the
Prescription Act
[2]
and was thus susceptible to extinction by prescription after three
years . In terms of section 12(1) of the Prescription Act,
prescription commences to run as soon as the debt is due. However
section 12 (3) provides that a debt shall not be deemed to be
due
until the creditor has knowledge of the identity of the debtor and
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.'
9.
In
Truter v Deysel
[3]
,
the court held:
'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.'
10.
Maasdorp
JA in Mckenzie v Farmers' Co-operative Meat Industries Ltd
[4]
continued and explained that:
"Cause of action' for the
purpose of prescription means
'... 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.'
11.
The
crisp question is thus when the plaintiff came to know 'of the facts
from which the debt arises.'
12.
There
is no allegation in the particulars of claim as to when the plaintiff
came to know of the existence of the debt. However,
in an application
which she brought seeking leave to institute the present action
against the defendant in terms of s47 (1) of
the Superior Courts
Act
[5]
the following appears in her affidavit:
'4.
Shortly after the accident I consulted with His Lordship, Mr Justice
RE Monama who
at the time practised as an attorney of the High Court
of South Africa and having had his offices at Mmabatho, Mafikeng,
North
West Province and having practised under the style and firm
name Ramarumo Monama & Co.
5.
I
consulted with His Lordship, Mr Justice Monama {then an attorney)
with the view of prosecuting a claim in terms of the then
Multilateral
Motor Vehicle Act, No 93 of 1989 (as amended), as I
maintained that the Fund established thereunder was liable to
compensate me
in respect of the damages I suffered as well as such
losses I incurred following the aforesaid accident.
6.
After
having consulted with the aforementioned Monama (then an attorney)
and after having given my version as to how the accident
happened as
well as the injuries sustained by me in the aforementioned accident,
the said Monama agreed to accept my mandate and
to
investigate the circumstances surrounding such accident;
to obtain all the necessary details he required as from the South
African Police Services and the Hospital whereat I was admitted and
treated as well as from myself (where so required) so as to
prosecute
such claim against the said Fund (hereinafter referred to as (the
MMF). The said Fund subsequently and in the year 1996
became known as
the Road Accident Fund in terms of Act 56 of 1996 (as amended).'
12.
Acting
upon such representations and undertakings, I mandated the said
Monama and which he accepted.
13.
My
instructions were furnished and the aforementioned undertakings and
representations were given and made in and during the latter
part of
the year 1998.
14.
I
had contact with the said Monama for a number of years following my
instructions and I was always informed by the said Monama
and/or his
staff that everything necessary had been done and that I should be
"patient" and await finality of my claim.
15.
I
then lost contact with the said Monama and as a result I became
referred to Attorneys Rontgen & Rontgen Incorporated of Pretoria
on or about the 9
th
day of August 2009 whom, I understood, also handled personal injury
claims and I was then advised on or about the 7
th
day of August 2009 that they had ascertained from the Road Accident
Fund that, according to the Fund, a claim had been lodged by
the said
Monama and which had been allocated a claim number 05/17096/23/0. The
said Road Accident Fund also advised that apart
from having lodged
such claim, no further steps had been taken.'
13.
It
is therefore clear and the plaintiff confirmed these allegations in
her evidence that she came to know of the debt on 9 August
2009. This
means that her claim against the defendant arose on 9 August 2009 and
would have prescribed on 8 August 2012.
14.
During
2012 the plaintiff launched an application in terms of s47 (1) of the
Superior Courts Act seeking leave to institute action
against the
defendant. It is not clear when this application was heard or when
leave was granted. However, summons dated July 2012
were issued on 6
August 2012 and served on the defendant on 29 October 2012, more than
three years after the plaintiff came to
know of the existence of the
debt. Mr Rontgen on behalf of the plaintiff conceded that the
bringing of an application in terms
of s47 (1) of the Superior Courts
Act did not interrupt prescription,. The claim has therefore become
prescribed.
15.
I
now turn to deal with the question of costs.
16.
The
defendant's counsel sought, in the event of the special plea being
upheld, an order that the plaintiff's legal representative
pays the
costs
de bonis propriis.
17.
The
general principle at common law is that a party who litigates in a
representative capacity (such as a trustee) cannot be ordered
to pay
costs
de bonis propriis
unless
he or she has been guilty of improper conduct
[6]
.
Orders of this nature have been made against attorneys who conducted
themselves in an irresponsible and grossly negligent manner
in
relation to the litigation. Such costs orders mark the court's
disapproval of the conduct.
18.
As
stated earlier, the plaintiff knew of the existence of a debt on 9
August 2009. In her replication to the defendant's special
plea, she
stated the following:
'The plaintiff denies the averment
made by the defendant with regard to prescription and the defendant
is put to the proof of its
special plea.'
19.
There
is no explanation as to what made it impossible for the summons to be
served before 8 August 2009. Mr Rontgen did not argue,
correctly so
in my view, that he did not know the whereabouts of the defendant
because he knew by the 11 March 2011 ( letter from
the Law Society of
Northern Provinces) that the defendant was a judge in the High Court
of South Africa Johannesburg Division.
Certainly, the plaintiff’s
attorney with all the experience and expertise should have
ascertained that the summons was served
timeously before the claim
prescribed.
20.
Furthermore,
the plaintiff is cited in the particulars of claim as an unemployed
adult female. It is clear that she will not be
in a position to pay
the defendant's costs which could have been avoided had her attorney
exercised the professionalism and expertise
expected from an
attorney.
21.
I
have been informed by the defendant's counsel that their legal costs
are covered by the underwriters of the Attorneys Fidelity
Fund but
that there may be excess payment due by the defendant. In that case,
the plaintiff will have to pay only the excess if
any.
In
the result the following order shall issue:
1.
The
special plea is upheld, and the action is subsequently dismissed with
costs.
2.
Such
costs to be
borne
by
the plaintiff's attorney
de bonis
propriis.
MOKGOHLA
DJP
REPRESENTATIONS
1.
For
the Plaintiff
: K.M Rontgen
Instructed by
: Rontgen & Rontgen Inc
2.
Counsel
for the defendant
: P Uys
Instructed
by
: Maluleke Msimang & Associates
3.
Date of hearing
: 01 February 2018
4.
Date
handed down
: 15 March 2018
[1]
56 of 1996
[2]
68
of 1969
[3]
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA) at para 16
[4]
1922 AD 16
,cited with approval by Corbett JA in Evins v Shield
Insurance Co Ltd
1980 (2) SA 814
(A) at 838 D-H
[5]
10 of2013
[6]
Cooper NO v First National Banic of SA Ltd 200 I (3) 705 (SCA)