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[2018] ZASCA 131
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Grimbeek v Jakobo (922/2017) [2018] ZASCA 131 (27 September 2018)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not
Reportable
Case
No: 922/2017
In
the matter between:
JOHANNES
PETRUS LOUIS
GRIMBEEK
APPELLANT
and
MZIWANDILE
ALFRED
JAKOBO
RESPONDENT
Neutral
citation:
Grimbeek
v Jakobo
(922/2017)
[2018] ZASCA 131
(27 September 2018)
Coram
:
Lewis, Tshiqi, Saldulker and Swain JJA and Mothle AJA
Heard
:
29 August 2018
Delivered:
27
September 2018
Summary:
Prescription
Act 68 of 1969
–
s 12(3)
– professional negligence –
attorney failing to lodge claim timeously – necessity for
plaintiff to make reasonable
enquiries – particular
circumstances of plaintiff – inaction not unreasonable –
special plea of prescription
dismissed.
Order
On
appeal from:
Free
State Division of the High Court, Bloemfontein (Rampai J with Van Zyl
and Mhlambi JJ concurring, sitting as court of appeal):
1 The appeal succeeds to
the extent set out in paragraph 2 below and the appellant is ordered
to pay the respondent's costs of appeal.
2 The order of the full
court is set aside and replaced with the following order:
'(a) The appeal succeeds
with costs.
(b) The order of the
trial court upholding the special plea of prescription and dismissing
the appellant's claim is set aside and
replaced with the following
order:
The special plea of
prescription is dismissed with costs.'
JUDGMENT
Swain JA (Lewis,
Tshiqi and Saldulker JJA and Mothle AJA concurring):
[1]
This
appeal concerns a claim for damages instituted by the respondent, Mr
Mziwandile Jakobo, against the appellant, Mr Johannes
Grimbeek, an
attorney, in the Free State Division of the High Court, Bloemfontein
for professional negligence. The claim was based
upon the allegation
that the appellant negligently permitted the respondent's claim
against the Road Accident Fund (the RAF) to
prescribe. By agreement
between the parties the trial court granted an order in terms of rule
33(4) of the Uniform Rules of Court,
initially limiting the issues to
a determination of the validity of the appellant's special plea of
prescription.
[2]
The
evidence was accordingly restricted to a determination of the special
plea of prescription, no evidence being led on the merits
of the
respondent’s claim. After hearing the evidence, the trial court
upheld the special plea and dismissed the respondent's
claim with
costs. A subsequent appeal to the full court with the leave of the
trial court, resulted in the dismissal of the special
plea. The full
court then however impermissibly entered into the merits of the
respondent’s claim, finding that the appellant
was liable for
100 per cent of the respondent’s agreed or proven damages. In
doing so, it committed a grave misdirection.
It disregarded the order
made by the trial court in terms of rule 33(4), which meant that it
had no jurisdiction at that stage
of the proceedings to determine the
merits. It also ignored the absence of any evidence on this issue.
Consequently, the finding
by the full court on the merits cannot
stand. Not surprisingly, the present appeal is with the leave of this
court.
[3]
Some
of the facts which are relevant to the special plea of prescription,
are unusual. The appellant had no recollection of consulting
with the
respondent or his father and was unable to identify them in court.
However, from the limited records still in his possession
he was able
to say that he had received an amount of R250 on 13 February 2001 in
connection with a third party claim. A cheque
was then drawn in
favour of the superintendent of the Boitumelo Hospital on 6 April
2001 for R200 and on 22 March 2005, he debited
a nominal fee for R50
which reduced the account to a nil balance. On 1 June 2005 he closed
the respondent's file, destroying it
five years later. The appellant
stated that without the file he was unable to say why he had closed
it and whether the merits of
the respondent’s claim had been
determined. He was unable to cast any light on what had happened to
the claim.
[4]
In
order to place the appellant's evidence in context, it is necessary
to briefly outline the history of the interaction between
the
appellant and the respondent. The accident in which the respondent
was injured happened on 25 January 2001. The respondent
was 17 years
old and at school in grade 9, when he was struck by an ambulance,
whilst riding a bicycle. He was admitted to the
Boitumelo Hospital
and was in a wheelchair when he consulted with the appellant during
February 2001, in the company of his father
Mr Friedman Jakobo. His
father's employer, a client of the appellant, had recommended they
consult the appellant. The employer
had apparently told the
respondent's father that he would speak to the appellant and ask him
to help them.
[5]
According
to the respondent's father, at this meeting the appellant said he
would proceed with the case and required payment of
R250 to do so.
The appellant also said they must not be impatient regarding progress
of the claim. The respondent stated that the
interpreter in the
appellant's office told him to go to the police station and obtain a
case number. The respondent then returned
at a later stage to the
appellant's office and furnished him with the case number. The
respondent’s father stated that he
also returned to the
appellant's offices not long after the meeting and paid the amount of
R250 in cash at the reception. In the
light of the appellant's
evidence that he had received the sum of R250 on 13 February 2001 in
connection with a third party claim
and had paid an amount of R200 to
the superintendent of the Boitumelo Hospital on 6 April 2001, it is
clear that the respondent
and his father consulted with the appellant
at this time.
[6]
At
a later stage the respondent, together with his father and
brother-in-law, Mr Michael Thabatha, visited the appellant. According
to the respondent’s father, the reason for the visit was that
the appellant had not advised him about progress in the claim.
Although there was some confusion between the witnesses as to the
year in which this meeting took place, they all agreed that the
appellant was asked what progress had been made. According to the
respondent the appellant said he was handling the case and this
type
of case took a long time to finalise. The appellant said he would
phone and keep them informed. The respondent and Mr Thabatha
said the
appellant was angry. According to Mr Thabatha the appellant spoke
harshly to them, adding he knew how to do his work and
they must not
tell him how to do it. He then told them to leave, mentioning this
type of claim took eight to ten years to finalise.
According to the
respondent his father said they must leave and give the appellant a
chance to handle the case.
[7]
Contrary
to the evidence of the respondent and Mr Thabatha, the respondent’s
father said the appellant had not spoken harshly
to them. When the
contradiction was put to Mr Thabatha, he replied this may be how his
father-in-law viewed the appellant's behavior,
but he maintained that
the appellant was angry. He believed the reason for the appellant's
anger was because they had questioned
him about the claim.
[8]
Mr
Thabatha said his father-in-law told them after the meeting that he
trusted the appellant who knew his work and they must leave
him
alone. He did not return to make any further enquiries from the
appellant, as he had chased them away. The respondent likewise
made
no further enquiries and, as he put it, remained silent.
[9]
In
accordance with his instructions to the respondent and Mr Thabatha,
the respondent's father did not approach the appellant again
for
information concerning the claim. He explained this was because he
believed in the appellant and believed he would handle the
claim
properly and finalise it. When asked why he did not take the claim
away from the appellant because he had taken so long,
he restated his
belief in the appellant adding that the appellant was helping them.
He viewed the appellant as a 'dominee' and
described him as a good
man. He confirmed he got on well with the appellant and agreed it
would not have been difficult to speak
to the appellant if he wished.
Because his place of employment was 200m from the appellant's offices
he agreed he could have made
enquiries at any time.
[10]
According
to the respondent, at none of these consultations did the appellant
inform them they had not carried out their obligations
and as a
result he could not submit the claim. Mr Thabatha said they received
no indication there were any problems with the claim,
as the
appellant said he was proceeding with it. The respondent's father
never received any letter from the appellant, in which
he was advised
that the appellant was no longer proceeding with the claim. He had
furnished his home address to the appellant at
the first
consultation. He was never told by the appellant he must obtain
another attorney, as he was no longer prepared to act
for his son and
he must do this quickly, as his claim would prescribe.
[11]
The
first occasion on which the respondent became concerned about his
claim was during 2012, when he heard on the radio that many
cases
against the RAF had been neglected. He phoned the RAF, furnished his
identity number and was told there was no record of
a claim being
lodged on his behalf. When he told his father what he had done, his
father became very angry with him for doing so.
The respondent's
father explained his reaction on the basis of a deep belief he held
in the appellant that he was helping them.
He regarded the appellant
as a person who would discuss his son's claim with him.
[12]
It
is against this factual background that the provisions of s 12(3) of
the Prescription Act 68 of 1969 (the Act), must be applied:
'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.'
[13]
The
meaning of the phrase ‘by exercising reasonable care’ has
been considered in a number of cases. In
Drennan
Maud & Partners v Pennington Town Board
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA) at 209H-I, the following was stated:
'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.'
[14]
In
Leketi
v Tladi NO & others
[2010]
ZASCA 38
;
[2010] 3 All SA 519
(SCA) para 18, the subjective element
in the objective enquiry to determine whether the requisite knowledge
should be deemed to
be held by the creditor, was described as
follows:
'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. . . .’
In
Macleod v Kweyiya
[2013] ZASCA 28
;
2013 (6) SA 1
(SCA) para
13, the particular circumstances of the plaintiff were again
emphasised in the following terms:
'It
is the negligent and not an innocent inaction that
s 12(3)
of the
Prescription Act seeks
to prevent and courts must consider what is
reasonable with reference to the particular circumstances in which
the plaintiff found
himself or herself.'
[15]
An
application of these principles in
Gunase
v Anirudh
[2011] ZASCA 231
;
2012 (2) SA 398
(SCA) paras 14 and 18, resulted in
a finding that prescription of a client's claim for damages against
an attorney who allowed
a RAF claim to prescribe, commences to run
when the client by making reasonable enquiries, should have learnt
that his claim against
the RAF was not timeously lodged.
[16]
The
justification for the principle of extinctive prescription is of
particular importance in the present appeal where as a result
of the
long delay, the appellant is unable to recollect any of the details
of the respondent's claim and most of the documentary
evidence has
been lost. The justification for the principle was formulated in
Road
Accident Fund & another v Mdeyide
[2010] ZACC 18
;
2011 (2) SA 26
(CC) para 8, in the following terms:
'This
Court has repeatedly emphasised the vital role time limits play in
bringing certainty and stability to social and legal affairs
and
maintaining the quality of adjudication. Without prescription
periods, legal disputes would have the potential to be drawn
out for
indefinite periods of time, bringing about prolonged uncertainty to
the parties to the dispute. The quality of adjudication
by courts is
likely to suffer as time passes, because evidence may have become
lost, witnesses may no longer be able to testify,
or their
recollection of events may have faded. The quality of adjudication is
central to the rule of law.'
[17]
Accordingly,
the danger that a fair adjudication of the appeal may be compromised
because of the delay must be guarded against.
The danger is
particularly acute as a result of the inability of the appellant to
explain why he terminated his mandate from the
respondent, by closing
the respondent's file on 1 June 2005, long before the respondent's
claim against the RAF prescribed on 17
December 2007. It is, however,
clear that neither the respondent, nor his father, received notice
from the appellant that he was
no longer proceeding with the claim.
If they had they would have approached another attorney, particularly
as the appellant had
not informed them of any problems with the
claim.
[18]
The
crucial issue is when should the respondent have learnt, by making
reasonable enquiries, that his claim against the RAF was
not
timeously lodged? It is common cause the respondent attained his
majority by reaching the age of 21 years on 17 December 2004
and his
claim against the RAF prescribed three years later, on 17 December
2007. The trial court held that on this date prescription
commenced
running against the respondent in respect of his claim against the
appellant, with the result that three years later
on 17 December
2010, his claim against the appellant prescribed. The first enquiry
to the appellant through the respondent's new
attorneys took place on
1 October 2012, followed by the issue of summons and service on the
appellant on 6 February 2013, of the
respondent’s professional
negligence claim against the appellant.
[19]
The
aspects of the evidence, which are relevant to this enquiry, are as
follows. It was the decision of the respondent's father,
after the
meeting at which the appellant was asked about progress in the claim,
that no further enquiries should be directed to
the appellant. That
this decision was respected by the respondent and Mr Thabatha is not
surprising. He was a person in authority
over them, whether as a
father or father-in-law. It is clear that the reason for this
decision was the deep-seated belief he held
in the ability and good
faith of the appellant, to properly prosecute the respondent’s
claim. He is not a sophisticated person
and was in awe of the
appellant. This may in part be attributed to the appellant being his
employer’s attorney and his employer
having garnered the
appellant's assistance. He believed implicitly that the appellant was
helping them and would communicate with
him regarding the
respondent's claim. The evidence reveals he was extremely
uncomfortable about questioning the appellant’s
progress at the
meeting, regardless of whether the appellant’s response to
being questioned was one of anger, or not. The
depth of his belief in
the appellant is starkly illustrated by his reaction when told by the
respondent that he had made enquiries
concerning the claim, which
revealed that the appellant had failed to lodge it with the RAF.
Rather than directing his anger at
the appellant for his failure to
do so, it was directed at his son for questioning whether the
appellant had properly handled the
claim.
[20]
A
recurring theme in the evidence of the respondent, his father and Mr
Thabatha was that the appellant told them they must be patient
and
this type of claim took a long time to finalise. In addition, the
appellant at no stage warned them of the danger of prescription
and
the effect it could have on the enforceability of the claim.
[21]
In
Macleod
(para 10), it was reiterated that a defendant bears the full
evidentiary burden to prove a plea of prescription, including the
date on which a plaintiff obtained actual or constructive knowledge
of the debt. The burden shifts to the plaintiff only if the
defendant
has established a prima facie case. Accordingly, as stated in
Ditedu
v Tayob
2006 (2) SA 176
(W) para 12, a defendant bears the onus of proving
that a plaintiff, in acting as he did, failed to meet the standard of
care required
by s 12(3) of the Act. In this manner, the date on
which the plaintiff obtained constructive knowledge of the debt may
be proved.
[22]
It
must be borne in mind that it is negligent conduct and not innocent
inaction on the part of a plaintiff that
s 12(3)
of the
Prescription
Act seeks
to prevent. What is reasonable conduct must be determined
by reference to the particular circumstances in which the plaintiff
found
himself or herself. I am satisfied on a conspectus of all the
evidence that the failure by the respondent to make further enquiries
from the appellant concerning the progress of his claim, was not
unreasonable in the particular circumstances of this case. The
appellant therefore failed to discharge the onus of proving that the
respondent in acting as he did, failed to meet the standard
of care
required by s 12(3) of the Act. The appellant accordingly failed to
prove that the respondent obtained constructive knowledge,
earlier
than the date on which he obtained actual knowledge of the failure of
the appellant to lodge his claim with the RAF.
[23]
In
reaching this conclusion I am acutely aware of the lengthy delay
before the respondent obtained knowledge of the appellant's
failure
to submit his claim to the RAF and the resultant inability of the
appellant to explain his conduct. A loss of evidence
and the
inability of witnesses to recollect events as justification for the
principle of extinctive prescription are equitable
considerations
aimed at ensuring that the quality of adjudication is maintained. In
the present case an equally important equitable
consideration is the
failure of the appellant to ensure that the respondent received
proper notification that he was no longer
proceeding with the
respondent's claim. If he had done so, the respondent would have been
able to obtain the services of another
attorney well in advance of
his claim prescribing. Consequently, a consideration of the equities
in the appeal does not favour
the appellant.
[24]
In
the result, the appeal against the decision of the full court
dismissing the special plea of prescription must be refused. However,
for the reasons set out above, the appeal against the decision by the
full court in which the merits of the respondent's claim
were
determined in favour of the respondent, must succeed.
[25]
The
appellant submitted that if the appeal only succeeded to the extent
that the order of the court a quo determining the merits
of the claim
in favour of the respondent was set aside, the appellant should be
entitled to the costs of the appeal, on the basis
that the appellant
was materially successful. I do not agree. The only substantive issue
on appeal was whether the court a quo
was correct in reversing the
finding of the trial court on the issue of prescription. The
appellant has failed on this issue and
there is no reason why the
appellant should not be ordered to pay the costs of the appeal.
[26]
I
grant the following order:
1 The appeal succeeds to
the extent set out in paragraph 2 below and the appellant is ordered
to pay the respondent's costs of appeal.
2 The order of the full
court is set aside and replaced with the following order:
'(a) The appeal succeeds
with costs.
(b) The order of the
trial court upholding the special plea of prescription and dismissing
the appellant's claim is set aside and
replaced with the following
order:
The special plea of
prescription is dismissed with costs.'
K
G B Swain
Judge
of Appeal
Appearances:
For
the Appellant: J F Grobler
Instructed
by:
Gildenhuys
Malatji Inc, Pretoria
Symington & De Kok,
Bloemfontein
For
the Respondent: Z Schoeman
Instructed
by:
R
Röntgen & Röntgen Inc, Pretoria
McIntyre
Van Der Post, Bloemfontein