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[2015] ZAFSHC 236
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Rautenbach N.O. v CMW Operations (EDMS) Bpk (4623/2012) [2015] ZAFSHC 236 (11 November 2015)
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IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case number: 4623/2012
In
the matter between:
ANNALIZE
RAUTENBACH N.O.
Applicant
and
CMW
OPERATIONS (EDMS) BPK
Respondent
CORAM:
RAMPAI, AJP
JUDGMENT BY:
RAMPAI, AJP
HEARD
ON:
11 NOVEMBER 2014
DELIVERED
ON:
19 FEBRUARY 2015
[1]
These were subsidiary motion proceedings. The plaintiff, an
executrix of the deceased estate, sues the defendant for damages
in
the main action proceedings. Her cause of action is the defendant’s
alleged failure to fulfil a legal duty. The
heart of her case
is the assertion that the defendant neglected to ensure that
appropriate life insurance policy was taken out
to cover the entire
indebtedness of her husband to the defendant in the event of his
death. The action is defended.
[2]
Simultaneous with its plea, the defendant also filed a special plea
to the plaintiff’s claim. The defendant
asserted that the
plaintiff’s claim has been extinguished by prescription in that
a period longer than 3 years had elapsed
from the date on which the
debt of the plaintiff fell due to the date on which summons of the
plaintiff was served on the defendant.
[3]
On 2 October 2014 Jordaan J made an order in terms of rule 33(4) that
the dispute as regards the defendant’s
special plea of
prescription and the plaintiff’s replication thereto, be
adjudicated first and that the rest of the issues
be deferred for
later adjudication. The order was made by agreement between the
parties following a formal application for
separation brought at the
defendant’s instance.
[4]
The subsidiary matter subsequently came before me in accordance with
the aforesaid separation order. I heard
oral evidence.
The version of the defendant was narrated by two witnesses, namely Mr
Horn and Mr Futter. The version
of the plaintiff was narrated
by Mr Becker and Ms Rautenbach, the plaintiff or executrix.
[5]
There were material facts which were common cause between the
parties. The plaintiff’s husband, Mr Abraham
Petrus
Cornelius Rautenbach, was a farmer in the district of Memel.
His farm was known as Petrusvlei farm. He and the defendant
concluded
a written agreement at Memel on 24 July 2008. In terms of the
agreement the defendant lent and advanced money to
the plaintiff to
facilitate his farming operations. The agreement was attached
to the particulars of claim as “Annexure
A”.
[6]
The farmer, in other words Mr A P C Rautenbach, was obliged to take
out life insurance policy on his life for the
full duration of the
agreement. The defendant proposed that such insurance policy be
purchased from an insurance entity called
Capital Alliance Risk Group
– see clause 11 “Annexure A”.
[7]
Apart from the written agreement, Mr Rautenbach also signed two
further documents,
viz
form 22 and form 24. By virtue of those documents, which were
attached to the main agreement, Mr Rautenbach authorised the
defendant
in terms of section 106(5)
National Credit Act of 2005
to
obtain the proposed life insurance policies on his behalf;
accepted that he would be responsible to pay a monthly premium
of
R700 in order to service such life insurance policy; authorised
the defendant to pay the premium monthly to Capital Alliance
Risk
Group on his behalf; further authorized the defendant to debit his
accounts with the defendant every month and nominated the
defendant
as the beneficiary of the life insurance policy entitled to retrieve
the full settlement amount from the aforesaid life
insurer.
[8]
These material facts were averred in paragraphs 3 – 6 of the
plaintiff’s particulars of claim.
They were admitted by
the defendant in paragraphs 1 and 19 of the defendant’s plea.
[9]
The plaintiff’s husband died on 13 July 2009, approximately 12
months after the conclusion of his agreement.
Since the
conclusion of the agreement until the date of his death, the
plaintiff’s husband regularly paid the premium
to the defendant
in order to cover his entire indebtedness to the defendant in the
event of his death. However, the defendant
failed to pay such
premiums over to the insurer, Capital Alliance Risk Group. In
fact the defendant continued to debit the
account of the plaintiff’s
husband for some months after his death. About three weeks or
so after his death, on 7 August
2009 to be precise, the Master of the
High Court appointed the plaintiff as the executrix of estate late A
P C Rautenbach.
On 11 August 2009 she assigned her powers to Mr
P A Becker of Noble Trust as her agent to administer the deceased’s
estate
on her behalf.
[10]
Ms A E Rautenbach, the deceased’s mother, had bound herself as
surety in favour of the defendant for the payment of her
son’s
debt due to the defendant. To that effect she registered a
mortgage bond against her property, portion 3 of Erf
260 Memel,
one-third undivided share in the remainder thereof in favour of the
defendant as security for the repayment of her son’s
debt.
[11]
On 21August 2009 a firm of attorneys, Theron & Neethling,
enquired, on behalf of the surety, about the deceased’s
debt
from the defendant, Cape Mohair Wool Operations (Pty) Ltd. The
lawyer enquired about the outstanding balance of the
debt owing by
the deceased farmer to the defendant and whether the deceased had a
life insurance cover in respect of such debt
– see p.50 Bundle.
[12]
On 27 August 2009 Mr Roger Futter, the defendant’s attorney,
answered the enquiry by Theron & Neethling. He
advised that
the outstanding balance of the deceased’s debt as on 25 August
2009 was R755 726,82; that on that day
the defendant received
an amount of R300 000 from Capital Alliance Risk Group; that
such receipt reduced the outstanding
balance to R455 726,82 and that
the defendant would cancel the mortgage bond once the surety had
settled the outstanding balance
– see p.52 bundle, email from
the defendant’s attorney to the surety’s attorney.
[13]
On 28 March 2009 there was a telephonic conversation between Mr
Becker and Mr Futter.
[14]
By 1 September 2009 the defendant’s representative, Mr Horn,
already knew that the defendant had not complied with its
obligation
to take a full life cover policy on the plaintiff’s husband but
failed to advise Mr Becker accordingly.
[15]
On 10 August 2011 Mr Becker prepared the liquidation and distribution
account in the deceased estate of the late Abraham Petrus
Cornelius
Rautenbach. Item number 44 thereof had a bearing on an entity
described as CMW. It was an undisputed fact
that the
abbreviation CMW was an acronym for Cape Mohair Wool, in other words
the defendant. The defendant was, according to the
account drawn by
the agent of the executrix listed as one of the 28 creditors of the
deceased estate – see p. 39 bundle.
The account was
signed at Kimberley on 10 August 2011 by Mr P A Becker who certified
at the foot of the relevant page that according
to his knowledge the
account was a true and accurate account of his administration and
distribution of the deceased’s estate
– see p.42 bundle.
[16]
The plaintiff’s agent obtained a copy of the insurance policy
contract during or about October 2010 or November
2010.
He became aware of the precise terms and conditions thereof in
general and the evidence of the so-called free cover
limit.
[17]
The dispute between the parties revolved around the date on which
prescription commenced to run against the plaintiff’s
claim.
On behalf of the defendant it was contended that the crucial
date was 24 July 2008. The defendant argued that
the debt
fell due on that particular date, being the date on which the
plaintiff’s late husband and the defendant contracted
and that
the summons served on 16 November 2012 was belated since the 3 year
prescriptive period had lapsed on 23 February 2011
– see
paragraph 2 “hoofaksie” pleadings.
[18]
The question in the case was whether the claim had prescribed on 16
November 2012 or not.
[19]
Mr De Bruin, on behalf of the defendant, submitted that at best for
the plaintiff the summons was supposed to have been served
within 3
years from 27 August 2009. Since it was not done by the last
ate of that period being 26 May 2012, the debt had
prescribed.
Accordingly counsel urged me to dismiss the plaintiff’s
claim with costs.
[20]
However, Mr Swanepoel disagreed. He contended that the defendant
failed to establish that the plaintiff was deemed to have
had imputed
knowledge of the negligence on 27 August 2009. Counsel submitted that
the plaintiff’s summons was served well
within a period of 3
years from the time she gained knowledge of the material breach of
the defendant’s mandate. Accordingly,
counsel urged me to
dismiss the defendant’s special defence of prescription raised
as a point
in limine.
[21]
It is settled law that the
onus
rested on the defendant to prove both the date of prescription and
the date of completion of the period of prescription.
Gericke
v Sack
1978 (2) ALL SA 111
(A) of 116.
[22]
In terms of
sec 10(1)
read with
sec 11(d)
Prescription Act 68/1969
the applicable prescription period in the instant matter is three
years.
[23]
Section 11(d) Provides:
“(d)
save where an Act of Parliament provides otherwise, three years in
respect of any other debt.”
[24]
Sec 10(1) provides:
“(1)
Subject to the provisions of this Chapter and of Chapter IV, a debt
shall be extinguished by prescription after the lapse
of the period
which in terms of the relevant law applies in respect of the
prescription of such debt.”
[25]
Sec 12(1) provides that prescription commences to run as soon as the
debt is due unless subsection 3 of section 12 is applicable.
Now section 12(3) provides:
“(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.”
[26]
When did prescription commence to run in the instant matter?
Put differently: when did the debt become due?
The
plaintiff answered that on or before the conclusion of the contract
on 24 July 2008, the defendant was appointed as an agent
of the
plaintiff’s husband with a specific mandate and that the
defendant breached the mandate there and then. In this
instance
it was immaterial whether the plaintiff’s cause of action was
contractually or delictually grounded. I have
to point out that
nowhere in the particulars of claim was any negligence attributed to
the defendant. There can be no doubt that
it was given and breached
at the very latest on 24 July2008.
[27]
The legal position as to when in such circumstances a debt, in other
words a claim for compensation, became due was comprehensively
discussed by Basson J in
Harker v Fussel &
Another
2002 (1) SA 170
(T). Seeing
that the reasoning and application of the existing principles in that
case were clear, that decision was subsequently
followed in
Primavera
Construction SA v Government, NWP & Another
2003
(3) SA 579
(B) 602 and
Burley Appliances
Ltd v Grobbelaar N.O. & Others
2004
(1) SA 602
(K) 610.
[28]
In
Harker’s
decision,
supra,
Basson J referred to decided cases such as
Electricity
Supply Commission v Stewarts & Lloyds of SA (Pty) Ltd.
1979 (4) SA 905
(W),
Erins
v Shield Insurance Co. Ltd.
1980 (2) SA
814
(A) and
Hawkins v Olympic Pads (Pty)
Ltd.
1979 (3) SA 224
(T).
On
p174 Basson J concluded after review of the aforesaid cases:
“
The
correct view appears to be that such breach or wrongful act (which in
casu occurred at the latest on 12 August 1991 - supra)
gives rise to
a single cause of action and that the period of prescription begins
to run from the date of the breach, whether or
not the damages have
become apparent.
”
I
am in respectful agreement. That provided an answer to the question
as to when prescription commenced to run. See sec 12(1).
The
crucial date was 27 July 2008, being the date of the contractual
breach (
Harker’s
decision,
supra
).
The 3 year period from that date of inception expired on 26 July
2011.
[29]
The email of 27 August 2009 was significant. From the email it
appeared that Mr Pierre Horn, the defendant’s representative,
had a discussion with Mr Becker, the plaintiff’s agent, on 26
August 2009, a day before the email. The email from the
defendant’s attorney, Mr Roger Futter to Mr Becker was crafted
as follows:
“The
outstanding balance excluding further interest claimed from 27 August
2009, due to CMW is R455 726,82 which amount
is calculated as
follows: R755 626,82 less R300 000,00 equals
R455 726,82.
The
R300 000,00 was received from Capital Alliance Group Risk and
paid to CMW on 25 August 2009. A copy of the proof
of payment
is transmitted herewith for your perusal and records.
As
security for his credit facility with my client, Mr Rautenbach’s
Mom, Mrs AE Rautenbach, registered a surety mortgage bond
in favour
of CMW. Theron & Netthling Attorneys represent Mrs AE
Eautenbach and have made enquiries concerning the cancellation
of the
bond. My instructions are that CMW will only cancel the bond
upon payment in full. Please advise whether you
are in any
position to give us an indication at this stage whether the deceased
estate will be able to pay my client?
Please
acknowledge receipt and should you wish to discuss any aspect hereof
do not hesitate to contact me. I look forward
to receipt of
your reply.”
[30]
The aforegoing email, item 8, was substantially the same as item 9,
an email to Mrs N E Rautenbach’s attorneys.
A copy of
proof of payment in the amount of R300 000 received from Capital
Alliance Risk Group was annexed to each of the two mails.
Both emails
were sent on 27 August 2009. In the email marked item 9, Mr
Futter informed the surety’s attorneys that
the defendant
required payment of the outstanding balance in order to cancel the
bond against the surety’s property.
[31]
In the mail marked item 8, Mr Futter further enquired from the
plaintiff’s agent whether the deceased’s estate
would be
able to pay the outstanding balance due to the defendant. He
concluded the email by inviting Mr Becker to contact
him should he
wish to discuss any aspect of his client’s claim.
[32]
Pursuant to that email, Mr Futter and Mr Becker had a telephonic
discussion about the matter the very next day on 28 August
2009.
Mr Futter wrote a note of that conversation – see “exhibit
a”.
[33]
In these circumstances, Mr De Bruin submitted that the summons should
have been issued and served, at the very latest, within
three years
from 27 August 2009. Since it was never done, the debt claimed
prescribed.
[34]
Mr Swanepoel disagreed with the submission. Counsel contended that
the inception date of prescription could not have been 27
August
2009. He submitted that, as on that day, the plaintiff did not
have knowledge of the basic facts on which the debt
owing by
defendant to the deceased’s estate was based. He stressed
that the plaintiff’s replication to the defendant’s
special plea was based on the provisions of sec 12(3).
[35]
The section provides that until the creditor has knowledge of the
identity… of the debtor and the facts on which the
debt
arises, such debt shall not be deemed to be due. The practical
effect of the section is that it postpones the inception
of
prescription until a future date on which the executrix, in other
words the claimant, becomes aware of the material facts which
gave
rise to the claim. The section does not postpone the inception
of prescription nor suspends its running until a creditor
has gained
knowledge of all her rights.
[36]
On 27 August 2009 Mr Becker received an email, item 8 bundle, from Mr
Futter. Attached to the email was written proof
of payment.
The attachment described as proof of payment was an email dated 25
August 2009 from one Brony ….
to one Nigel.
The subject was confirmation of electronic fund transfer from Capital
Alliance Risk Group.
The
email reads:
“Dear
client,
Scheme
name: Cape Mohair Wool Credit Life Scheme (RT665)
Member’s
name: Rautenbach Petrus (2)
We
hereby wish to advise that Capital Alliance Group risk has paid the
Death benefit for the above mentioned member in favour of
the payee
mentioned below:
Payee
Details:
In
accordance with instruction received by Capital Alliance Group Risk,
the amount mentioned below was paid as follows:
Payee
:
Cape Mohair & Wool
Banking
Institution:
Rirstrand Bank Limited
Branch
code:
261050
Account
number:
[………]
Account
type:
CURRENT/CHEQUE
Transmission
date:
20090825
Amount:
300000.00
Less
Tax:
.00
Net
Amount Paid:
300000.00
Claim
Type:
Death
Reference
Number:
881410.”
[37]
It appeared
ex facie
item 8 that the email was triggered off by the telephonic
conversation of the previous day, 26 August 2009, between Mr Horn,
the
defendant’s representative, and Mr Becker, the plaintiff’s
agent. Mr Becker initiated the communication process
between
the parties. He did so because the plaintiff had informed him that
her husband had an insurance cover in respect of the
defendant’s
claim. When he received the email he gained the following
constructive knowledge: that the plaintiff’s
husband was
indeed a member of Cape Mohair Wool Credit Life Scheme; that
the insurance life policy contract was issued by
Capital Alliance
Risk Group; that the deceased estate of the plaintiff’s
husband was indebted to the defendant in the
sum of ± R755
226,82 as on 6 August 2009; that the insurer did not settle the
defendant’s claim in full;
that the payment of death
benefit in the amount of R300 000 still left the outstanding balance
of R455 726,82 and that the defendant
demanded payment of such
balance from the executrix.
[38]
According to the evidence, the plaintiff was not satisfied with the
amount of death benefit paid. She knew that her husband
was
supposed to have insurance life cover for an unlimited amount in
respect of the defendant’s claim. She also knew
that the
monthly premiums were regularly paid and that there were no arrears
at all. The only problem was that she did not
have the policy
contract.
[39]
The evidence indicated that the plaintiff, her mother-in-law as well
as Mr Horn had expected that the insurer would pay off
the
defendant’s claim in full. When that was not done, the
questions were asked. The trail of emails between
Mr Horn and
Mr Alberts on p.53 bundle demonstrated the point.
“Hello
Briony
I see
that an amount of R300 000.00 was paid as a death benefit.
Our monthly contribution was over R750,00 p.m. as the
total loan was
more or less R750 000.00.
Are
there any explanation (sic) regarding the full outstanding amount not
been paid?
Your
urgent attention will be appreciated.
Thank
you
P.
Horn”
[40]
It can, therefore, be noted that following the initial discussion he
had on 26 August 2009 with Mr Becker, Mr Horn wasted no
time
enquiring about the insurer’s reasons for the shortfall.
His first email to Capital Alliance Risk Group was dated
30 August
2009. A day later he received a copy of the insurance policy
contract as well as the so-called rate review letter.
The
abbreviation “FCL” in the emails from the insurer was an
acronym for “Free Cover Limit.”
[41]
Mr Swanepoel’s argument was that before it could be found that
Mr Becker became aware of the existence of the plaintiff’s
claim against the defendant, it must first be shown that as on 27
August 2009 Mr Becker would have known:
41.1
That payment of only R300 000 as opposed to the entire
outstanding amount had not been an error on the part
of the insurer
and that the insurer did not intend to make any further payment;
41.2
That the only reason as to why the insurer did not pay the full death
benefit to the defendant was that the defendant
had breached its
obligations by failing to arrange a full insurance cover.
41.3
That a “free cover limit” was an available option which
Mr A P C Rautenbach could have taken in order
to have a complete
cover for his entire indebtedness to the defendant.
41.4
That the defendant, as the appointed agent of Mr A P C Rautenbach,
failed to advise him accordingly.
[42]
It is probably correct to argue that Mr Becker did not have such
knowledge as on 27 August 2009 notwithstanding the information
contained in Mr Futter’s email. However, it is certainly
incorrect to contend, as counsel for the plaintiff did, that
“the
aforesaid email simply records that an amount of R300 000 was
credited to the account of Rautenbach and that R455 726,82
was still
owing to defendant.” The email contained more than that.
I have earlier outlined informative aspects
of the email. I
deem it unnecessary to repeat them here.
[43]
The bone of contention between the parties was what knowledge the
plaintiff had on 27 August 2009. Mr Futter testified
that on 28
August 2009 Mr Becker telephonically informed him on behalf of the
executrix that he repudiated the claim of his client,
CMW, for the
payment of the outstanding balance; that CMW had failed to arrange
full insurance cover in other words Rautenbach’s
entire
indebtedness and that CMW had therefore acted negligently.
[44]
Mr Becker testified that he had no recollection of the conversation.
However, he added that he would, at best for the
defendant, have said
that because the defendant had arranged the life insurance cover and
that because he had collected premiums
from the plaintiff’s
husband as if the entire amount of the indebtedness was covered –
the defendant should consequently
resolve the matter. He nevertheless
persisted that he did not know at that stage that the defendant had
been negligent. He
maintained that he only became aware of the
defendant’s negligence during October 2010 if not November 2010
when he obtained
a copy of the policy document from Liberty Life.
[45]
I find his alleged awareness of the negligence irreconcilable with
his evidence of what he would have told Mr Futter on 28
August 2009.
It follows as a matter of logic, he could only have blamed the
defendant and repudiated its claim on the ground of
its negligence
and called upon the defendant to resolve the matter if he already had
prior knowledge of the basic facts as outlined
in paragraph 48
supra.
[46]
It is true that on 27 August 2009 not even Mr Horn knew the reason
why the insurance did not pay the death benefit equal to
the entire
amount of the debt due to the defendant. Indeed he only enquired
about the discrepancy on 31 August 2009 and received
a copy of the
policy on 1 September 2009. Within one day after his request he
was able to obtain a copy of the policy from
which he readily
ascertained why the insurer did not settle the claim in full.
Before then, he too, was expecting payment
of the full amount of the
debt.
[47]
I accept that as far back as 1 September 2009 Mr Horn knew that the
defendant did not comply with its contractual obligations
and that
the defendant’s representative failed to advise the plaintiff
or her agent accordingly. The defendant was,
for obvious
reasons, reluctant to acknowledge to the plaintiff that it, as an
agent of A P C Rautenbach, was to blame for the shortfall.
It
is not surprising that Mr Horn and Futter were uncooperative. The
plaintiff’s agent folded his arms. Because the
defendant
had breached its contractual obligations, he reckoned that
“…defendant should consequently resolve the matter.”
[48]
It is apparent that the widow knew before her husband died that the
debt in favour of the defendant was fully insured; that
the defendant
had collected premiums for the insurance cover equal to the balance
outstanding at the time of death and that the
insurer received
premiums concerning such full life cover. The evidence showed
that her knowledge as reflected in the first
two paragraphs was
correct. These were material facts which Mr Becker also knew
before his first telephonic conversation
with Mr Horn on 26 August
2009 and before his first telephonic conversation with Mr Futter on
28 August 2009. The evidence also
showed that, contrary to paragraph
3 of Mr Becker’s letter, the insurer did not receive the full
amount of premiums for a
full life cover.
[49]
Mr Becker knew, within six weeks after the death of the plaintiff’s
husband, about the identities of two corporate persons,
namely Cape
Mohair Wool trading as CMW Operations (Edms) Bpk and Capital Alliance
Risk Group – email 27 August 2009. Upon
receipt of that email
one would have expected an uninformed recipient to have taken the
matter up with the insurer as well in order
to ascertain the facts,
find out what went wrong and identify an entity which was to blame
for the shortfall.
[50]
I have painstakingly perused the joint trial bundle, but I could find
no letter or email from Mr Becker (or Noble Trust) to
Capital
Alliance Risk Group in connection with the matter. If such an
email or letter exists, then it was not discovered.
The
importance of the omission is twofold: firstly it suggests that
the plaintiff knew all along that the defendant and not
the insurer
was to blame for the shortfall. Secondly, it suggests that Mr
Becker did not immediately, properly and independently
investigate
the matter. Seemingly he expected the defendant to investigate
itself on behalf of the deceased estate.
[51]
Indeed it was undisputed that Mr Becker had knowledge of the exact
terms and conditions of the policy contract or group insurance
scheme
between the defendant and the insurer. According to him he received a
copy thereof during October or November 2010, approximately
some 14
or 15 months after he had received Mr Futter’s email of 27
August 2009. The gentleman took his time to get
things done.
The summons was issued on 12 November 2012, almost two years after Mr
Becker or the plaintiff had received a
copy of the group insurance
scheme. It will be recalled that Mr Horn took immediate,
meaningful and practical steps and obtained
such a document within
one day after his request.
[52]
It was undisputed that Mr Horn knew as early as 1 September 2009 that
the defendant had not complied with the contractual obligations
towards the plaintiff’s husband; that he also failed to advise
Mr Becker accordingly, was an undeniable fact. Obviously
his
loyalty to his employer was greater than his loyalty to his
employer’s customer. It is in the nature of things
for
people to behave in that way. He suppressed vital information which
was detrimental to the interest of his employer.
Mr Becker was
naïve to expect Mr Horn to act differently. It was
unrealistic to expect Mr Horn to benevolently give
such information
to the plaintiff at the expense of the defendant. He withheld
the information because he did not want to
bite the hand that feeds
him.
[53]
The same can be said about Mr Futter. He would have acted
unethically had he divulged, without the consent of his client,
information that could potentially harm the interests of his client.
It appears that Mr Becker expected too much from the
two gentlemen
but received very little. I accept the submission that the
inescapable conclusion was that the defendant’s
two witnesses
were fully aware that the defendant had failed the plaintiff’s
husband but kept that knowledge to themselves.
I am of the view
that they were not obliged to share such knowledge with the
plaintiff.
[54]
These proceedings were not concerned with acts of omission committed
by the defendant. The focus of these proceedings
concerned acts
of omission attributed to the plaintiff. It is my considered view
that the plaintiff, via her agent, could have
acquired knowledge of
the identity of the debtor as well as knowledge of the material facts
from which the debt, in other words
her claim against the defendant,
arises, by the exercise of reasonable care – sec 12(3).
The plaintiff failed to do
so. There was no sound explanation
proffered as to why the plaintiff could not do likewise. What is
apparent from the undisputed
evidence is that the plaintiff did not
investigate the matter to ascertain the material facts as envisaged
in the section.
She expected her adversay to do so on her
behalf.
[55]
In my view the plaintiff was appraised of the basic facts on 27
August 2009. The defendant was not obliged to appraise
the
plaintiff of all aspects of her claim –
Nedcor
Bank Bpk v Regering,
supra.
The plaintiff was not required to become aware of all her rights
before she could take appropriate steps against the defendant.
[56]
The testimony of Mr Becker was that he became aware of the terms of
the policy during October or November 2010, some thirteen
months, at
least, since Mr Horn had become aware of such terms. On his own
version, Mr Becker was uncertain as to precisely
when he received a
copy of the policy document from Liberty Life. The plaintiff
discovered no relevant correspondence between
Mr Becker’s Noble
Trust and Liberty Life.
[57]
In
Macleod v Kweyiya
2013 (6) SA 1
(SCA) at 6 the court held:
“
The
test is what a reasonable person in his position would have done,
meaning that there is
an expectation to act reasonably and with the diligence of a
reasonable person
.”
I
am in respectful agreement. In this instance, the plaintiff’s
agent did not act diligently as a reasonable person
in his position
would have acted given the peculiar circumstances of this particular
case. On the facts, I could find no
reasonable explanation as
to why, at the very latest, the agent could not have gained knowledge
of all material facts, say by 1
November 2009, some two long months
after the defendant’s representative had gained such
knowledge.
[58]
The fact that the plaintiff’s summons was issued on 12 November
2012, almost two years after the plaintiff had, via her
agent,
allegedly gained constructive knowledge of the material facts,
demonstrates the plaintiff did not act with diligence to
institute
the current legal proceedings. In my view the plaintiff’s
attendant failure to act with the diligence of a reasonable
person
constituted negligence and not just innocent inaction as she
contended.
[59]
Consequently I have come to the conclusion that the defendant has
discharged the
onus
of
proving both the date of inception and the date of completion of the
period of prescription –
Gericke
supra
. Those
important dates were 27 August 2009 and 26 August 2012 strictly
speaking since the defendant was able to ascertain
not only the basic
but rather the facts on 1 September 2009, just 4 days after 27 August
2009, it is not unrealistic to say a reasonably
diligent litigant in
the shoes of the plaintiff would independently have done likewise
within a period of 60 days at most after
receipt of Mr Futter’s
email at 27 August 2009. However, even such generous
construction of the evidence, does not
redeem the plaintiff.
[60]
I am persuaded, on the facts, that the point raised
in
limine
was well taken.
[61]
Accordingly, I make the following order:
61.1
The defendant’s special plea of
prescription is upheld.
61.2
The plaintiff pays the costs.
________________
M. H. RAMPAI, J
On behalf of the
plaintiff: Adv. J. J. C.
Swanepoel
Instructed by:
Azar & Havenga Inc
BLOEMFONTEIN
On behalf of the
defendant: Adv. H. de Bruin SC
Instructed by:
Symington & de Kok
BLOEMFONTEIN