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[2015] ZAGPPHC 369
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Ekman v Venter & Volschenk Attorneys and Another (44655/2013) [2015] ZAGPPHC 369 (1 June 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
Case
number: 44655/2013
Date:
1/6/2015
In
the matter between:
A.H.
EKMAN PLAINTIFF
And
VENTER
& VOLSCHENK
ATTORNEYS 1
ST
DEFENDANT
STOFFEL
JACOBUS
VENTER 2
ND
DEFENDANT
JUDGMENT
PRETORIUS
J,
[1]
In this action for damages
the plaintiff claims damages based on personal injuries sustained by
the plaintiff in a motor vehicle
accident on 24 October 2003, and a
second claim where the plaintiff similarly claims damages based on
injuries sustained in a motor
vehicle accident on 28 March 2006.
These claims are instituted against the defendants, as both claims
had become prescribed,
whilst the defendants acted as the legal
representatives of the plaintiff in both claims. The defendants
raised two special
pleas of prescription. It was ordered, by
agreement by the parties, that the court would first deal with the
special pleas
and that adjudication of the special pleas will be
separated from the remainder of the trial in terms of Rule 33(4) of
the Uniform
Rules of Court.
[2]
It was common cause that
the defendant had the onus to begin and the burden of proof to prove
the first and second pleas of prescription.
[3]
The provisions of
section
12
of the
Prescription Act, 68 of 1969
apply in the present instance:
“
(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
would have acquired it by exercising reasonable care.”
(Court’s emphasis)
[4]
Mr Venter, the second
defendant, was the attorney who had been instructed by the plaintiff
to institute action against the Road
Accident Fund, after the
plaintiff had sustained injuries in an accident. The accident
took place on 24 October 2003 and
the claim would have become
prescribed on 24 October 2005. The second claim related to an
accident which the plaintiff was
involved in and instructed the
second defendant to institute action against the Road Accident Fund.
This accident took place
on 28 March 2006 and would have become
prescribed on 28 March 2009.
[5]
It is common cause that
the first and or second defendants had accepted instructions from the
plaintiff during November 2003 to
perform professional services as a
firm of attorneys in relation to the first accident. The
instructions to the first and
second defendants were to institute a
claim and or handle and or expedite and or facilitate the plaintiff’s
claim against
the Road Accident Fund. These instructions were
in relation to a motor vehicle accident which occurred on 24 October
2003
where the plaintiff had sustained injuries. It is further
common cause that the action was not instituted timeously within
two
years and that the claim had become prescribed. It is alleged
that had the first and second defendants lodged the claim
timeously
against the Road Accident Fund or any wrongdoer the plaintiff would
not have suffered a loss of damages, due to injuries
in the amount of
R1 199 275.69.
[6]
The second claim relates
to a motor vehicle accident which occurred on 28 March 2006 in which
the plaintiff sustained injuries.
In this instance the driver
of the other vehicle involved in the accident was known. The
first and second defendants were
instructed to institute action
against either the Road Accident Fund or any other wrongdoers.
Once more the first and second
defendants undertook to handle the
matter with the required skills and diligence expected by a
practicing attorney and or firm
of attorneys. It is common
cause that the claim was not instituted as the second defendant
originally denied that he had
received a mandate and instructions to
institute a claim.
[7]
The plaintiff had a valid
claim against the Road Accident Fund in both instances. In the
second instance the plaintiff allegedly
suffered damages in the
amount of R999 103.75 due to injuries sustained in the accident
being the amount the plaintiff would
have been entitled to claim had
the claim not prescribed.
[8]
Section 55
of the
Road
Accident Fund Act, 56 of 1996
makes provision that in the instance where the identity of a driver
or the owner of the other vehicle is known, a right to claim
compensation will prescribe within a period of three years from the
date upon which the claim arose. It is common cause between
the
parties that the period within which the 2003 claim would have
prescribed, would have been two years from the date of the accident,
that is 24 October 2003, as the other party involved was unknown.
It is further common cause that the period within which
the 2006
claim would have prescribed was three years, that was on 28 March
2006.
[9]
In
Gunase
v Anirudh 2012(2) SA 398 SCA
at para 14 Seriti JA found:
“
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.”
[10]
The plaintiff pleaded that
the first time he was informed by the second defendant that both his
claims had become prescribed was
on 26 July 2010. According to
the plaintiff the first defendant as represented by the second
defendant had breached the agreement,
by not instituting and/or
lodging the claims with the Road Accident Fund timeously within the
prescribed periods.
[11]
Mr Venter, the second
defendant, gave evidence under oath. His evidence was that he
is a practicing attorney who has been
practicing in Vereeniging for
37 years. He has known the plaintiff for at least 30 years and
had attended to several legal
matters for the plaintiff throughout
the years.
[12]
According to Mr Venter the
plaintiff consulted and instructed him in November 2003 to claim from
the Road Accident Fund for the
injuries that the plaintiff had
sustained. Mr Venter conceded that he had made a mistake by not
knowing that the first claim
would expire after two years. He
had sent the MMF1 form to Dr van Dyk, the doctor who had treated the
plaintiff, to be completed
by Dr van Dyk. Although he had
followed up the request to Dr van Dyk, he never received a reply,
although he had provided
the plaintiff’s consent to the release
of his medical records in August 2005.
[13]
Mr Venter admitted that he
had made a mistake in not ascertaining when the first claim would
have become prescribed. He testified
that it was not easy to
make such an admission. He further conceded that it was his
duty to obtain the necessary documents
to enable him to institute
action. He had realized at the time that any other medical
practitioner could have completed the
MMF1 form, but did not foresee
that he would not get the form timeously from Dr van Dyk despite his
numerous enquiries resulting
in no reply.
[14]
The second defendant had
made an appointment with the plaintiff for a consultation on 24
October 2006 to inform him that his claim
had become prescribed.
Mr Venter did not inform the plaintiff that he could sue the
defendants as he did not accept at the
time that the claim had
prescribed due to a mistake on the defendants’ side.
[15]
Although the defendants
had pleaded that they did not hold instructions for the second claim,
Mr Venter, when confronted by the
Power of Attorney, conceded that he
was specifically given the instruction to institute a claim relating
to the accident of 28
March 2006. He conceded that he had done
nothing to pursuit this claim, although his mandate had never been
terminated by
the plaintiff. Mr Venter testified that he had
dealt with numerous cases for the plaintiff and that the plaintiff
did not
make enquiries as to his 2003 Road Accident Fund matter,
during the subsequent years.
[16]
Under cross-examination he
testified that he did not know how it had happened that he did not
know that the first claim would become
prescribed in 2005. He
waited a year before he informed the plaintiff of the prescription of
the claim and could give no
explanation as to why it took a year
before he informed the plaintiff that his 2003 claim had prescribed.
The court finds
it highly improbable that he would have handled 12
cases for the plaintiff from 2003, consulted on other matters with
the plaintiff
and that he never informed the plaintiff as to the
status of his claims.
[17]
In relation to the second
claim the second defendant’s evidence was that he sent faxes to
the plaintiff, but did not know
whether he had received these faxes.
These faxes were sent to inform the plaintiff during October 2010
that prescription
was imminent on the 2006 claim. The question
is whether a reasonable lawyer, in these circumstances, would have
ascertained
whether his communication had reached his client as his
client did not respond. Should he not have telephoned his
client
and alerted him to the imminent prescription of his claim?
In any event, even had the plaintiff received the faxes from the
first and second defendants on 4 October 2006, the claim had already
prescribed.
[18]
His evidence was the only
evidence on behalf of the defendants. The plaintiff closed its
case on the special pleas without
presenting any evidence.
[19]
The defendants’
reply to the plaintiff’s pre-trial questions set out:
“
1.2 That aside, it is indeed the
defendants’ case that the defendants informed the plaintiff
that
the plaintiff’s claim was about to prescribe. The
plaintiff was so informed on 4 October 2006.
1.3
The defendants,
however, erred in law by informing the plaintiff that his claim was
to prescribe, as the plaintiff’s claim
had already prescribed
by 4 October 2006
.
1.4
Thereafter and more specifically on 24 October 2006, the defendants
informed the plaintiff
that his claim had prescribed.”
(Court’s emphasis)
[20]
It is thus clear from
these answers by the defendants that the second claim had already
prescribed on 24 October 2010, although
the defendants had
erroneously informed the plaintiff on 4 October 2010 that his claim
was about to prescribe.
[21]
It is admitted in the
pre-trial answers that the defendants informed the plaintiff of the
prescription of both claims on 24 October
2010. Mr Venter
admitted that he had given the plaintiff the wrong information as he
had already been aware that the first
claim had become prescribed on
24 October 2005 and it was a mistake on his side not to inform the
plaintiff immediately of this
fact and that it had “
just
happened”
.
Furthermore Mr Venter’s evidence was that he could have told
the plaintiff earlier that the claim had prescribed,
but gave no
explanation as to why he did not.
[22]
According to Mr Venter he
had told the plaintiff on 26 July 2010 of the prescription of the
first claim and advised the plaintiff
to go and consult with another
attorney in regards to the 2003 claim.
[23]
The 2006 claim was not
pursued at all by the defendants and the plaintiff only knew, upon
enquiry, on 26 July 2010 that this claim
had prescribed. Mr
Venter’s evidence was that on 24 October 2006, when he informed
the plaintiff that the claim had
prescribed the plaintiff seemed to
be upset and disappointed that the claim had not been instituted
timeously and that Mr Venter
had not pursued the claim at all.
[24]
Summons was issued on 22
July 2013 against the first and second defendants. It is thus
clear that the present action was launched
timeously. The onus
to prove prescription is on the two defendants. Mr Venter could
not deny that he had informed the
plaintiff on 26 July 2010 that the
claim had prescribed and could not provide any date when, according
to him, the claim had become
prescribed.
[25]
In
Nedcor
Bank Bpk v Regering van die Republiek van Suid-Afrika 2001(1) SA 987
SCA
at paragraphs 9
and 10 Schutz JA held:
“
[9] Wat die Wet
nastreef, is ‘n gulde middeweg tussen die onbillikheid, aan die
een kant,
dat ‘n potensiële skuldenaar ‘n ewigheid
na die plaasvind van die gewraakte gebeure skielik met hofverrigtinge
bedreig word en die onbillikheid,
aan die ander kant, dat
‘n potensiële skuldeiser sy aanspraak op regshulp bloot
vanweë tydsverloop verbeur waar
hy, sonder enige verwyt aan sy
kant, nie oor die nodige inligting beskik om sodanige hofverrigtinge
inmiddels van stapel te stuur
nie
.
[10]
Hou mens dit alles in gedagte, bestaan daar geen dwingende rede
waarom ‘n skuldeiser volkome
oor alle aspekte van sy beoogde
litigasie ingelig moet wees alvorens verjaring teen hom kan begin
loop nie. Die skuldenaar
se belange moet immers ook in ag
geneem word.”
(Court’s emphasis)
[26]
At the end of para 13
Schutz JA comes to the conclusion:
“
Wat beoordeel moet word, is nie of die eiser oor voldoende
feite beskik het om sy saak teen die einde daarvan te bewys nie, maar
of hy oor die minimum feite beskik het om daarmee te begin.”
[27]
The court has to decide as
to how
section 12(2)
of the
Prescription Act, No 68 of 1969
should be
applied in conjunction with
section 12(3)
of the Act.
[28]
The courts have not had
occasion to clarify what constitutes conduct that prevents the
creditor from coming to know of the existence
of the debt. In
this instance Mr Venter did not inform the plaintiff in both
instances that the two claims would become prescribed.
The
plaintiff only knew about it when Mr Venter informed the plaintiff
after the fact. In these circumstances,
section 12(2)
of the
Act should apply where the defendants are an attorney and a firm of
attorneys. These inactions by the defendants by
preventing to
let the plaintiff know timeously of the prescription of both claims
makes
section 12(2)
of the Act applicable.
[29]
In
Brand
v Williams 1988(3) SA 908 (C)
at 913 Scott AJ held:
“
The
main object of extinctive prescription is no doubt to create legal
certainty and finality between parties after a lapse of time.
But prescription does not simply serve as a blunt instrument to
achieve finality regardless of the circumstances of the creditor
(M M
Loubser “Toward a Theory of Extinctive Prescription”
(1988) 105 SALJ 34
at 53). This is recognised not only in
s 13
of the
Prescription Act but
also
s 12(3)
which is clearly aimed at
preventing
prescription from running against a creditor who, by reason of a lack
of knowledge and the inability to acquire it by
the exercise of
reasonable care, is unable to institute action. The underlying
object of
s 12(3)
is accordingly to ensure that it is negligent
rather than innocent inaction that is penalised
.”
(Court’s emphasis)
[30]
In
Administrator,
Cape v Olpin 1996(1) SA 569 (C
)
the Full Bench found:
“…
the provisions of
s 2(2)(c)
of the (Limitation of
Legal Proceedings (Provincial and Local Authorities)) Act and of
s
12(3)
of the
Prescription Act 68 of 1969
require a creditor to do no
more than what could reasonably be expected in the circumstances of a
reasonable man”.
[31]
In
Drennan
Maud & Partners v Pennington Town Board 1998(3) SA 200 (SCA)
at p209 F-G, Olivier JA explained the meaning of
section 12(3)
as
follows:
“
Section 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 of 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.”
[32]
The test to determine
whether the defendants exercised reasonable care is an objective test
as set out at para 18 in
Leketi
v Tladi NO and Others
[2010] 3 All SA 519
(SCA)
.
[33]
The court has to deal with
the meaning of the word “wilfully” as set out in
section
12(2)
of the Act.
[34]
In
Loubser,
Extinctive Prescription
at p101 the learned author explains:
“
Wilful concealment of the existence of the debt by the
debtor may not be the only factor precluding commencement of the
running
of the prescription period. Sometimes mere ignorance on
the part of the creditor without wilful concealment may preclude the
commencement of the prescription period in terms of
Section 12(3)
[in
terms of which a debt is not 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].”
[35]
In
Jacobs
v Adonis 1996(4) SA 246 (C)
at
250 J to 251 A, Foxcroft J finds that the wording of
section 12(2)
“
wilfully
prevents the creditor from coming to know of the existence of the
debt” does not include the proof of fraud”
.
[36]
Foxcroft J furthermore
held at 250I to 251A:
“
I
have no doubt that the words ‘wilfully’ or ‘opsetlik’
mean simply ‘deliberately’ or ‘intentionally’
and do not require there to have been a fraudulent intention to
deceive
.”
(Court’s emphasis)
[37]
Counsel for the plaintiff
referred the court to section 32(1)(b) of the Limitations Act, 1980
in England where the section is similar
to section 12(2) of the Act
and provides:
“
(1) […] where in the
case of any action for which a period of limitation is prescribed by
this
Act, either
(a)
The action is based
upon the fraud of the defendant; or
(b)
Any fact relevant
to the plaintiff’s right of action has been deliberately
concealed from him by the defendant; or
(c)
[…]
The period of limitation shall not begin to run until the
plaintiff has discovered the fraud, concealment […] (as the
case
may be) or could with reasonable diligence have discovered it.
References in this subsection to the defendant include references
to the defendant’s agent and to any person through whom the
defendant claims and his agent.”
[38]
In the English Act lack of
reasonable diligence trumps concealment. In English law it is
set out that lawyers have a duty
to report to the client matters
which go wrong. If they fail to do so they will be acting in
breach of a professional duty
which may be regarded as concealment
for purposes of section 32(1)(b) of the English Act.
[39]
I must agree with counsel
that section 12(3) should be interpreted that negligence and inaction
should be penalised. I can
think of no reason why the same
principles as set out in English Law should not apply in South
African Law.
[40]
Mr Venter, the second
defendant, conceded that the first time he mentioned to the plaintiff
that he could, or should consult with
another attorney due to the
prescription of the 2003 claim was on 26 July 2010. At the time
the plaintiff was still the defendants’
client in other
matters. The second defendant admitted that he had deliberately
not told the plaintiff of the option to consult
another attorney
prior to 26 July 2010.
[41]
I cannot find, in these
circumstances that the defendants proved prima facie evidence of the
date which they alleged prescription
began to run. Furthermore
it is clear from Mr Venter’s evidence that he had only informed
the plaintiff that this claim
had prescribed on 26 July 2010.
This is thus the date that prescription started in the present case.
[42]
In regards to the 2006
case, he conceded that he only told the plaintiff on 26 July 2010
that the 2006 claim had become prescribed
and on that date he
informed the plaintiff of the option of seeking another attorney to
deal with the matter. The failure
to disclose the prescription
immediately, as well as the consequences thereof was a duty which the
first defendant conceded he
had had, but did not comply with.
The defendants did not act in this matter in a manner that is
expected from a diligent,
hardworking attorney. A reasonable
attorney would have seen to it that he pursued both claims
diligently, whilst keeping
the plaintiff up to date on the progress
of his claims. A reasonable attorney would immediately have
informed the plaintiff
of the prescription of his claims and would
have advised the plaintiff how to deal with it. Due to the
first defendant’s
concession in this regard the court finds
that the first and or second defendants are guilty of not acting as a
reasonable attorney
or firm of attorneys would have acted under these
circumstances.
[43]
The defendants’
counsel argued that there was a duty on the plaintiff to adduce
evidence. I must agree that considering
the admissions and
concessions the second defendant had made under oath, that it was not
necessary for the plaintiff at all to
give evidence. I have
considered the evidence, pleadings, arguments and authorities.
I find that the provisions of
section 12(2)
and (3) of the
Prescription Act applies
. I find that the defendants wilfully
prevented the plaintiff from discovering that the claims had
prescribed by not informing
the plaintiff immediately during 2005 and
2009 that his claims had become prescribed. The result is that
the defendants special
pleas should be dismissed.
[44]
Therefor I make the
following order:
1.
The first and second
special pleas are dismissed;
2.
The defendants to pay the
costs, including the cost of senior counsel.
_____________________
Judge C Pretorius
Case number
: 44655/2013
Matter heard on
: 11-12 May 2015
For the Plaintiff
: Adv. J Du Plessis SC
Instructed by
: Elmarie De Vos Inc
For the Respondent
: Adv. De Jager
Instructed by
: Van Zyl Le Roux Inc
Date of Judgment
: 1 June 2015