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[2015] ZAGPPHC 541
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Ekman v Venter & Volschenk Attorneys and Another (44655/2013) [2015] ZAGPPHC 541 (1 July 2015)
IN THE HIGH COURT OF
SOUTH AFRICA
(GAUTENG DIVISION,
PRETORIA)
Case number: 44655/2013
Date: 01 June 2015
In the matter between:
A.H.
EKMAN
........................................................................................................................
PLAINTIFF
And
VENTER & VOLSCHENK
ATTORNEYS
............................................................
1ST
DEFENDANT
STOFFEL JACOBUS
VENTER
.............................................................................
2ND
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 shail 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 plaintiffs 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 plaintiffs 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 piaintiff 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
guide middeweg tussen die onbillikheid, aan die een kant, dat ‘n
potensieie skuldenaar
‘n ewigheid na die plaasvind van die
gewraakte gebeure skielik met hofverrigtinge bedreig word en die
onbillikheid, aan die
ander kant, dat ‘n potensieie skuldeiser
sy aanspraak op regshulp bloot vanwee tydsverfoop verbeur waar hy,
sonder enige
verwyt aan sy kant, nie oor die nodige inligting beskik
om sodanige hofverrigtinge inmiddeis van
stapel te stuur nie.
[10] Hou mens dit afles 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 (MM 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 knowiedge and the
inabiiity to acquire it by the exercise of reasonable care, is unabie
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 251 A:7 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 plaintiffs
right of action has been deliberately concealed from him by the
defendant; or
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 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