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[2018] ZAECMHC 11
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Funeka v T. Qina and Sons (1725/2011) [2018] ZAECMHC 11 (22 February 2018)
IN
THE HIGH COURT OF SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION: MTHATHA
CASE
NO. 1725/2011
MGOBOZI
PATRICIA
FUNEKA
Plaintiff
and
T.
QINA &
SONS
Defendant
JUDGMENT
BROOKS
J
[1]
On 19 July 2011 the plaintiff issued summons against the defendant,
who was her erstwhile attorney who had been instructed to
pursue a
claim which the plaintiff had against the Road Accident Fund (the
RAF). In the amended particulars of claim it is
alleged on
behalf of the plaintiff that in breach of a material term of his
agreement with the plaintiff the defendant allowed
the plaintiff’s
claim against the RAF to prescribe and acted negligently in doing so.
[2]
In the amended particulars of claim the plaintiff alleges that as a
result of the defendant’s conduct she has been deprived
of her
claim against the RAF, which, had the defendant executed the terms of
his mandate properly, would have been successful.
In the
circumstances, the plaintiff alleges that she has suffered damages
and that the defendant is liable to compensate her accordingly.
[3]
In paragraph 16 of the amended particulars of claim the following
allegation is made:
“
Defendant
wilfully prevented the plaintiff from coming to know the existence of
defendant’s indebtedness to the plaintiff,
who only became
aware of the existence of the debt, alternatively the identity of the
defendant as a debtor and or the facts from
which the debt arose at
the earliest on 17 November 2009.”
[4]
In due course the summons was served on the defendant and he entered
an appearance to defend the action. On 26 March 2013
the
defendant filed a special plea of prescription. It is expressed
in the following terms:
“
1. The
plaintiff’s cause of action arises pursuant to the death of her
alleged husband as a result of an alleged collision
which occurred on
or about the 27
th
April 2002.
2. The provisions
of the Road Accident Fund Act 56 of 1996 (hereafter referred to as
Act 56 of 1996) applied.
3. In terms of Act
56 of 1996, the plaintiff and/or her attorney was required to lodge a
claim with the Road Accident Fund within
three years of the date of
the alleged collision and thereafter a summons was to be served on
the Road Accident Fund within five
years of the alleged collision
failing which the plaintiff’s claim for compensation against
the Road Accident Fund would
prescribe.
4. The plaintiff
allegedly instructed the defendant during or about July 2004 to lodge
a claim for compensation on her behalf with
the Road Accident Fund.
5. The plaintiff
alleges that:
5.1 the defendant
failed to take the necessary steps to ensure that the plaintiff’s
claim did not become prescribed in terms
of section 23 of the Act and
her claim against the Road Accident Fund accordingly prescribed on or
about 26 April 2007.
5.2 the defendant
wilfully prevented her from coming to know of the existence of the
defendant’s indebtedness to her, such
that prescription only
commenced to run from 17 November 2009 at the earliest.
6. In terms of
section 11(d) of the Prescription Act 68 of 1969 (hereafter referred
to as
Prescription Act), the
plaintiff was required to effect service
of summons upon the defendant within a period of three years from the
date of the alleged
failure and/or negligence in order to prevent her
claim against the defendant prescribing.
7. In terms of the
Prescription Act:
7.1 Section
12 (1)
states that prescription shall commence to run as soon as the debt is
due.
7.2
Section 12
(2)
states that 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.
8. The defendant
avers that the plaintiff has failed to allege sufficient
particularity to sustain the argument that prescription
in the above
matter falls to be decided in terms of
section 12
(2) of the
Prescription Act and
avers that the issue of prescription ought to be
decided in terms of
section 12
(1) of the
Prescription Act.
9. The
summons in
this matter was served upon the defendant on or about the 26 July
2011 being more than three years after:-
9.1 the defendant’s
alleged negligence, and
9.2 more than three
years after the time when the plaintiff ought to have knowledge or
could by the exercise of reasonable care
have had knowledge that her
claim against the Road Accident Fund had prescribed.
WHEREFORE
the
defendant prays that the plaintiff’s clam be dismissed with
costs.
”
[5]
On 21 July 2015 the plaintiff filed a replication. The portion
dealing with the special plea reads as follows:
“
AD
PARAGRAPHS 1 to 5 (inclusive)
1. The contents
hereof are admitted.
AD PARAGRAPH 6 and
7
2. The contents
hereof are admitted in so far as they correctly reflects the
provisions of Act 68 of 1969 (the “Act”)
and are denied
in so far as they do not correctly reflect the provisions of the Act.
AD PARAGRAPH 8
3. Each and every
allegation herein contained is denied as if specifically traversed,
in amplification hereof the plaintiff restates
her reliance on
section 12(2) of the Act and pleads that:
3.1 her averments
contain sufficient particularity for pleading;
3.2 are not vague
or embarrassing; and that
3.3 further
particularity is an evidential matter for trial.
AD PARAGRAPHS 9 and
9.1
4. The contents
hereof are admitted.
AD PARAGRAPH 9.2
and 10
5. Each and every
allegation herein contained is denied as if specifically traversed,
in amplification hereof the plaintiff reiterates
that the defendant
wilfully prevented her from coming to know of the existence of the
defendant’s indebtedness to her until
17 November 2009 and
therefore in terms of section 12 (2) of the Act prescription only
commenced running on that date.
WHEREFORE
plaintiff prays that
the defendant’s special plea is dismissed
.”
[6]
In due course agreement was reached between the parties’ legal
representatives that the issue encompassed by the special
plea of
prescription should be separated from the remaining issues in the
matter and dealt with at the outset. Accordingly,
at the
commencement of the proceedings in court an appropriate order was
made by agreement in terms of the provisions of rule 33
(4) of the
Uniform Rules of Court.
[7]
The parties were not in agreement on questions relating to the
incidence of the
onus
pertaining to the special plea of
prescription and the duty to begin with the leading of evidence.
Mr Ploos van Amstel, who
appeared on behalf of the defendant,
submitted that as the plaintiff had first referred to factors which
would determine the date
when prescription started to run in respect
of her claim against the defendant (paragraph 16 of the amended
particulars of claim),
indicating that reliance would be placed on
the provisions of
s 12
(2) of the
Prescription Act 68 of 1969
, the
plaintiff bore the
onus
of proof. Mr Erasmus, who
appeared on behalf of the plaintiff, submitted that the special plea
of prescription had been raised
pertinently by the defendant and was
in no way dependent upon the allegations made in paragraph 16 of the
amended particulars of
claim. In his submission, nothing
militated against the adoption of the customary approach, namely that
a defendant bears
the
onus
of proof in respect of a special
plea upon which a defendant places reliance for the dismissal of a
plaintiff’s claim.
[8]
After a consideration of the submissions made by counsel and the
manner in which the issue central to the special plea of prescription
emerged from the pleadings, a ruling was given to the effect that the
defendant bore the
onus
of
proof in respect of the special plea of prescription.
[9]
Counsel were unable to reach agreement on the identification of the
party who should be the first to lead evidence in respect
of the
special plea. After hearing the submissions from both counsel
on what would be convenient in the circumstances of
the matter, a
ruling was given to the effect that the defendant had the duty to
begin with the leading of evidence.
[10]
The defendant gave detailed evidence about the manner in which he
handled the plaintiff’s claim against the RAF.
In doing
so he made reference to the content of a bundle of documents handed
in as exhibit B. It is clear from the evidence
that the
plaintiff gave the defendant a special power of attorney on 21 July
2004 with a view to the pursuit of her claim against
the RAF.
The claim was lodged under cover of a letter addressed by the
defendant to the chief executive officer of the RAF
on 22 July 2004.
Thereafter, on a fairly regular basis initially, letters appear to
have been addressed by the defendant
to the RAF in an attempt to
ascertain whether any progress had been made in the assessment of the
claim. On at least two
occasions the letters addressed queries
raised by the RAF or furnished it with additional documentation.
The last example
of this type of letter was written on 6 October 2005
and is included in exhibit B as page 20. After a follow-up
letter dated
20 October 2005 went unanswered, the periods of time
between the dates upon which the defendant wrote letters to the RAF
asking
for progress reports appear to have got longer. The next
letter was written on 19 June 2006, followed by others on 29 January
2007, 9 January 2008, 16 January 2009 and 9 June 2009 respectively.
[11]
It was the defendant’s evidence that the plaintiff called at
his office every two or three months. Whenever she
did so, he
would draw the file and tell her what had been done since her last
visit. In this regard, he indicated that sometimes
there had
been telephonic contact between him and the claims handler at the RAF
who was responsible for the plaintiff’s claim.
He would
tell the plaintiff about these communications and show her the
letters he had written.
[12]
On 19 November 2009 the defendant received by facsimile transmission
a letter addressed to him by the plaintiff’s current
attorneys. This letter served as cover for a form entitled
“TERMINATION OF MANDATE”. Dated 19 November
2009,
this form had been signed by the plaintiff. Its content
informed the defendant that the plaintiff had terminated his
mandate
to handle her claim against the RAF. The covering letter also
asked the defendant to forward the contents of the
plaintiff’s
file to her new attorneys. The letter and written termination
of the mandate form part of the bundle of
documents handed in as
exhibit A.
[13]
The letter of 19 November 2009 makes no reference to the prescription
of the plaintiff’s claim against the RAF.
Nor does it
make any reference to her dissatisfaction with the defendant or to
any alleged negligence or concealment on his part.
What
followed was an exchange of correspondence between the defendant and
the plaintiff’s new attorneys which confined itself
to the
transmission of the contents of the plaintiff’s file and the
payment of fees claimed by the defendant in respect of
the work that
he had done. The correspondence ends with a letter dated 9
February 2010 addressed by the defendant to the
plaintiff’s new
attorneys and enclosing the contents of the plaintiff’s file.
The letter also contains the banking
details of the defendant’s
trust account to facilitate the payment of his fees.
[14]
According to the defendant, the first he heard about the prescription
of the plaintiff’s claim against the RAF was when
he was served
with a copy of the summons in this matter. A copy of the return
of service included in the court file reveals
this to have occurred
on 26 July 2011. Under cross examination he denied the
suggestion that he knew much earlier on that
the plaintiff’s
claim had prescribed and denied the further suggestion that he had
deliberately kept this information from
her.
[15]
It is common cause that the defendant never issued a summons against
the RAF in pursuit of the plaintiff’s claim.
The motor
vehicle accident which gave rise to the plaintiff’s claim
occurred 27 April 2002. Her claim was lodged with
the RAF under
cover of a letter written by the defendant on 22 July 2004. The
copy of this letter embodied in exhibit B shows
that it was stamped
upon its receipt by the RAF. The stamp bears the date 27 July
2004. It is further common cause
that the defendant would have
been able to issue a summons against the RAF in respect of the
plaintiff’s claim after the
expiry of a period of 120 days.
This he did not do. In the circumstances, it is common cause
that the plaintiff’s
claim against the RAF prescribed at
midnight on 26 April 2007.
[16]
In her evidence relating to the special plea of prescription, the
plaintiff to a significant degree corroborated the evidence
given by
the defendant. She explained that she didn’t know how
long claims took and thought that the process may take
years.
In 2009 she changed her attorney “because this matter was
taking a long time”. Her daughter worked
in Pretoria and
heard about the plaintiff’s present attorneys. It was at
her daughter’s suggestion that she made
the change.
[17]
The plaintiff confirmed that on 17 November 2009 she signed a written
special power of attorney which gave her present attorneys
the
mandate to pursue her claim against the RAF. A copy thereof has
been included in the bundle of documents forming exhibit
B.
[18]
In answer to a question put to her during her evidence in chief the
plaintiff stated that she first heard that her present
attorneys were
going to claim against the defendant when she received a telephone
call from her attorneys “saying the claim
had prescribed and
they would take the matter further”. She was unsure of
the date when this occurred and thought that
“it could have
been 2011 or so”. She confirmed in her evidence in chief
that she had never worried about her
claim against the RAF
prescribing.
[19]
Under cross examination the plaintiff confirmed that by 26 April 2007
she knew that her claim against the RAF had not been
finalised.
She said that the defendant told her that he was “waiting for a
reply from the RAF”. When asked
if she went to her
present attorneys because she was unhappy with the defendant’s
service her reply was “yes”.
When asked if she had
lost trust in him she said “yes”, by 2009”.
When it was put to her that she must
have thought something was wrong
she replied “I didn’t think something was wrong but I
wanted an opinion from another
attorney because I got the same reply
from [the defendant]”.
[20]
The mandate was given by the plaintiff to her new attorneys on 17
November 2009. It was a mandate to pursue to finality
her claim
against the RAF. The defendant forwarded the contents of her
file to her new attorneys on 9 February 2010.
The contents of
the bundle of documents handed in as Exhibit A reveal that on 6
August 2010 the plaintiff’s new attorneys
issued summons
against the RAF, approximately six months after they must have
received the contents of the plaintiff’s file
from the
defendant. It must have been evident immediately upon a
consideration of the contents of that file that no summons
had been
issued previously and that the claim must have prescribed on 26 April
2007. However obvious it should have been,
the fact of
prescription in all probability only occurred to the plaintiff’s
new attorneys after receipt by them of a letter
dated 28 March 2011
from attorneys instructed by the RAF. A copy of this letter was
handed in as exhibit C. Therein
it is recorded that the
plaintiff’s claim against the RAF had prescribed and that the
summons issued against the RAF had
been issued and served after the
claim had prescribed.
[21]
The occurrence of the letter dated 28 March 2011 ties in with the
plaintiff’s evidence that it was in 2011 that she was
advised
telephonically by the plaintiff’s new attorneys that her claim
against the RAF had prescribed. She confirmed
in her evidence
that she had never consulted with her new attorneys about
prescription. No one had ever said anything about
prescription
when she gave her new attorneys the mandate to pursue her RAF claim.
Accordingly, the content of paragraph 16
of her amended particulars
of claim did not emanate from a consultation with her new attorneys.
She confirmed again that
on 17 November 2009 she did not know that
her claim against the RAF had prescribed. This fact is also
borne out by the fact
that her mandate to her new attorneys was
confined to the pursuit of the RAF claim, that in due course her new
attorneys issued
summons against the RAF and that her new attorneys
never raised the issue of prescription with the defendant until
summons against
him was issued out of this court on 19 July 2011.
[22]
Section 12 of the Prescription Act 68 of 1969 (the Act) provides for
the commencement of the periods of prescription relevant
to the
institution of the plaintiff’s claim against the defendant.
It reads as follows:
“
12(1) Subject
to the provisions of ss (2) and (3), prescription shall commence to
run as soon as the debt is due.
(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
.”
[23]
Mr Erasmus submitted in argument that the word “wilfully”
employed in s 12 (2) of the Act means simply “deliberately”
or “intentionally” and does not necessarily mean “having
the intention to deceive”. This interpretation
has found
judicial confirmation in JACOBS v ADONIS
[1]
.
Under cross examination it was put to the defendant that it was
highly improbable that he was unaware that the plaintiff’s
claim against the RAF had prescribed and accordingly he was not being
truthful when he claimed that he had been ignorant of this
fact until
he received the summons issued against him by the plaintiff’s
new attorneys. He denied that this was the
case. In my
view his evidence should be accepted. His statement that he did
not know that the claim had prescribed
is borne out by the nature of
his attention to the matter well beyond the date of prescription and
his request that he be paid
his fees before handing over the contents
of the plaintiff’s file to her new attorneys in February 2010.
If he did
not know that the plaintiff’s claim had prescribed in
his hands and that in the circumstances he now owed a debt to the
plaintiff,
how could it ever be said that he deliberately or
intentionally prevented the plaintiff from coming to know of the
existence of
this debt? In my view, on the facts of this matter
as they emerge from the evidence the provisions of s 12(2) of the Act
are of no assistance to the plaintiff.
[24]
Mr Erasmus also submitted that the special plea of prescription
raised by the defendant in respect of the plaintiff’s
claim
against him could not succeed because the plaintiff was unaware of
the identity of the debtor and of the facts from which
the debt
arises. In these circumstances, he submitted the provisions of
s 12(3) of the Act were relevant to her, particularly
as she is a lay
person who placed her trust in the professional capabilities of the
defendant. He sought to align the plaintiff’s
position
with that of the respondent in FLUXMANS INCORPORATED v LEVENSON
[2]
where delivering the minority judgment of the court Mpati AP, as he
then was, stated:
[3]
“
In his
founding affidavit the respondent averred that he is a lay person and
that he relied on the appellant to represent his interests
and to
advise him properly and fairly…[t]here is nothing in
the papers to suggest that he should at any stage have
realised that
there had been non-compliance with the provisions…which should
have led him to believe that he should seek
legal advice elsewhere.
”
[25]
The majority of the court in FLUXMAN’S case found differently
on the question of the availability of s 12(3) of the Act
to the
respondent in that matter
[4]
.
In my view, it is not necessary to evaluate the differences between
the two judicial views on the point because the entire
matter is
distinguishable from the present matter on its facts.
[26]
In the present matter, the plaintiff stated that she was dissatisfied
with the progress in her matter. She wanted to
approach another
attorney and indeed did so on 17 November 2009. This alone
distinguishes her from the respondent in FLUXMAN’S
case who was
not faced with anything which should have led him to believe that he
should seek legal advice elsewhere. Accordingly,
unlike the
plaintiff, he did not do so.
[27]
It is difficult to form an opinion that the present attorneys for the
plaintiff should have realised that something was amiss
with the
plaintiff’s claim against the RAF when she first approached
them on 17 November 2009. It would be with the
undoubted
benefit of hindsight that it might be said that her complaint of
“undue delay” should immediately have alerted
her present
attorneys to assess with vigilance the status of her claim against
the RAF in relation to the prospect that it may
have prescribed.
However, when the plaintiff’s new attorneys received the
content of the plaintiff’s file in
early February 2010 this
should certainly have been uppermost in the research and enquiry
required of them as her new legal representatives.
It is clear
from the evidence that there was no summons issued by the defendant
against the RAF and accordingly there was not a
copy a summons in the
plaintiff’s file. The date of the motor vehicle accident
giving rise to her claim and the date
that the claim had been lodged
with the RAF were facts immediately evident from the contents of her
file. The identity of
the defendant was also known. A
diligent enquiry by the plaintiff’s new attorneys would have
revealed that her claim
against the RAF had prescribed in the hands
of the defendant on 26 April 2007. In my view, it is entirely
reasonable to expect
that acting diligently, the plaintiff’s
new attorneys should have realised that she had a claim against the
defendant arising
from his failure to prevent her RAF claim from
prescribing and that the resultant claim against the defendant would
prescribe in
approximately two months time.
[28]
As her duly appointed agents, the knowledge of the existence of the
debt owed by the defendant to the plaintiff which her new
attorneys
ought reasonably to have had on receipt of the contents of her file
from the defendant is knowledge which ought to be
imputed to the
plaintiff. In these circumstances, any belief held on behalf of
the plaintiff that she is entitled to an extension
of the time
before the commencement of the prescription until 28 March 2011, when
the RAF attorneys advised her attorneys
that the claim against the
RAF had prescribed, is a belief held without foundation.
[29]
Moreover, in my view, there is room for the expectation that the
plaintiff ought to have taken reasonable steps to acquire
knowledge
of the debt owed to her by the defendant at an even earlier stage.
The spaces between the dates upon which the
defendant addressed
letters of enquiry to the RAF got gradually larger. By October
2005 they were large enough lapses of
time, without any indication
that the defendant’s litany of almost identical and
unthreatening enquiries were productive
of progress in the matter, to
prompt concern in the mind of a reasonable lay person. If the
plaintiff continued with her
habit of calling on the defendant every
two or three months, then by December 2005 she would have found that
he had done nothing
since October 2005. Visits in February 2006
and April 2006 would have revealed the same thing, for the next
letter was only
written to the RAF in June 2006. The next was
only written seven months later on 29 January 2007 and the one
thereafter a
whole year later on 9 January 2008. In my view, it
is not unreasonable to expect that a person in the position of the
plaintiff,
in the exercise of reasonable care, should have contacted
another attorney well before she did on 17 November 2009.
Inasmuch
as she did not do so, her circumstances are hit by the
proviso
to s 12(3) of the Act. The plaintiff’s inability to
acquire the prerequisite knowledge of the circumstances giving
rise
to the debt owed to her by the defendant was the result of her
failure to exercise reasonable care in respect of taking a
decision
to seek alternative legal advice. It has been held
[5]
that
the underlying object of s 12 (3) of the Act is to ensure that it is
negligent rather than innocent inaction that is penalised.
With
this view I am in respectful agreement. The concept that a
layperson is required to exercise reasonable care when in
circumstances such as the plaintiff faced in the hands of the
defendant is no stranger in our law. See, for example, HAROLD
GUNASE v RAMESH ANIRUDH.
[6]
[30]
No evidence was led from any member of the firm acting currently as
the plaintiff’s attorneys. Accordingly, in
the light of
the plaintiff’s evidence that she did not consult with them on
the issue of the prescription of her claim against
the RAF, the
origin of the erroneous allegation made in paragraph 16 of
plaintiff’s amended particulars of claim remains
a mystery.
[31]
I am satisfied that the defendant had discharged the
onus
of proof resting upon him in respect of the special plea of
prescription.
[32]
In the circumstances, the following order will issue:
“
1. The
defendant’s special plea is upheld.
2. Judgment is
granted in favour of the defendant with costs
.”
RWN
BROOKS
JUDGE
OF THE HIGH COURT
Appearances
For
the plaintiff: Adv DJ Erasmus
Instructed
by Mgweshe Ngqeleni Inc.
1
st
Floor
Old
Mutual Building
Cnr
York Road and Leeds Street,
MTHATHA
For
the defendant: Adv JA Ploos van Amstel
Instructed
by T Qina & Sons
Clublink
Building
28
Maderia Street
MTHATHA
Date
heard: 14 February 2018
Date
delivered: 22 February 2018
[1]
1996 (4) SA 246
(C) 250 I – 251 A
[2]
2017 (2) SA 520 (SCA); [2017] 1 ALL SA 313 (SCA)
[3]
Par [23]
[4]
Par [42]
[5]
BRAND v WILLIAMS 1988 (3) SA 908 (C) 913
[6]
(826/10)[2011]ZASCA231 (30 November 2011)