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[2014] ZAFSHC 225
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Mabaso v Coetzer (1825/2013) [2014] ZAFSHC 225 (28 November 2014)
IN THE HIGH COURT OF
SOUTH AFRICA
FREE STATE DIVISION,
BLOEMFONTEIN
Case No: 1825/2013
DATE: 28 NOVEMBER 2014
In the matter between:-
MZONDASE INGRID
MABASO
................................
Plaintiff
And
CHARL
COETZER
...................................................
Defendant
JUDGMENT BY: MOENG, AJ
HEARD ON: 12 November 2014
DELIVERED ON: 28 November 2014
[1] The plaintiff, an adult female,
instituted action for damages against the defendant, an attorney
practicing as such in Senekal.
She alleges in her particulars of
claim that on 16 March 2005, her husband was run down and resultantly
killed by an unidentified
vehicle whilst working on the road between
Bethlehem and Kestel.
[2] Shortly after the accident, she
consulted the defendant to act on her behalf and seek compensation
from the Road Accident Fund
(RAF) for loss of support and the
defendant accepted the mandate. She however discovered on 10 April
2013 that the defendant failed
to lodge or prosecute such a claim and
as a result, her claim became prescribed as against the RAF. She
accordingly lost the amounts
as reflected in her particulars of claim
and submits that the defendant is liable in law to compensate her.
[3] In response, the defendant raised a
special plea of prescription. He in the main denies that he accepted
plaintiff’s mandate
to lodge or prosecute the claim on her
behalf. He admits to having consulted with the plaintiff during March
2008 with a view of
acting on her behalf in lodging the claim, but
advised her in a letter dated 10 March 2008 that he will not act on
her behalf since
the claim was due to prescribe on 15 March 2008 (5
days later) and that she should immediately consult another attorney.
[4] He contends that plaintiff issued
and served summons on him on or about 10 May 2013, more than three
years after the cause of
action arose. The plaintiff’s action
therefore prescribed on 9 March 2011 since she was aware of the fact
that he will not
act on her behalf on 10 March 2008.
[5] The plaintiff denied in replication
that her claim prescribed, asserting that she only became aware of
the defendant’s
failure to prosecute her claim timeously on or
about the 10th of April 2013.
[6] The parties by agreement requested
me to separate the special plea from the rest of the issues in terms
of rule 33(4) and I
granted the order. The issue to be decided in
this judgment therefore only relates to whether the plaintiff’s
claim prescribed
against the defendant.
[7] It is common cause that the
defendant, having raised the special plea, bears the onus of proof.
He testified and called two
other witnesses, Annacletta Skosana
(Skosana) and Betty van der Merwe (van der Merwe), both her staff
members. Plaintiff was in
turn the only witness in her case. The two
versions are mutually irreconcilable
[8] The facts upon which the defendant
based his case are in short as follows: He is an admitted attorney
practicing as such in
Senekal for the past 28 years. He was
approached by the plaintiff on 8 March 2008 with a view of giving him
instructions to lodge
a claim for loss of support against the RAF.
[9] His practice did not deal with RAF
matters but he nonetheless contacted Mr. Yazbek, an attorney from
Bloemfontein, who usually
assisted him with similar matters. He was
however warned not to accept the instruction since the plaintiff’s
claim was about
to prescribe in the next five days. He informed the
plaintiff likewise and ensured that Skosana explain same to her in
Sesotho.
[10] He furnished her with a letter and
she acknowledged receipt thereof. I find it apposite to repeat the
contents thereof verbatim:
“We refer to the above matter and
attach hereto the documents that you supplied to us.
Due to the circumstances and the fact
that we are of the opinion that we will not be able to help you, and
that there is a breech
(sic) of trust, we no longer act on your
behalf.
Please note that you must IMEDIATELY
(sic) consult with another attorney in this matter as this claim, if
you have any, will prescribe
on the 15th of March 2008.
We also attach hereto for your
convenience a RAF 1 form.
Yours faithfully
Charl Coetzer Prokureurs
Original receive(sic) on 10 March 2008
(signed by plaintiff)
“I understand the meaning of this
letter”
[11] He did not open a file for the
plaintiff but placed the letter referred to above in a general file
that he uses for general
correspondence. This was the first and last
time he saw the plaintiff.
[12] Skosana confirmed that defendant
told plaintiff that he will not be able to assist her and that she
must go to another attorney.
The plaintiff and defendant conversed in
English but it appeared as if she did not understand when he told her
that he will not
be able to assist her since she merely kept quiet.
She in turn read the letter and explained the contents thereof to
her. She did
however not explain the issue relating to prescription
and breach of trust to her.
[13] Van der Merwe stated that she has
no independent recollection of the plaintiff since there were no
entries that she made of
any appointment that she made after the 8th
of March. She however conceded that there would be no entries if she
was a walk-in
client and that she also has no recollection of whether
she phoned the defendant after 8 March. The procedure that she
follows
should someone phone the defendant in his absence would be to
jot the information of such a person down and then hand it over to
him upon his arrival. No record is however kept of such telephone
messages.
[14] Plaintiff in turn stated that she
met the defendant shortly after her husband’s death at the
small claims court in Senekal
where he presided as commissioner. She
related the untimely death of her husband to him and he told her to
visit his office the
next day. She obliged and the defendant told her
what documents he will need to lodge a claim on her behalf. She
handed the documents
over to him before the end of 2005.
[15] She visited his office around five
to six times but the defendant assured her that he is working on her
file and that she must
stop disturbing him since he knew his job. She
confirmed signing the document that purportedly informed her that
defendant will
not represent her, but disputed that the contents
thereof were explained to her. She was merely asked to sign the
document without
reading it and was told that the reason for her
signature was for submission of her claim to the RAF. She disputed
that Ms. Skosana
interpreted anything to her and that she was given a
copy of the letter.
[16] She on the date of this signature
informed the defendant that she was relocating to Frankfort. She
phoned his office on numerous
occasions after March 2008 but never
managed to speak to him. She was time and again informed by the
receptionist that the defendant
is not available and that she would
pass the message to him. She was once told that they have not
received any response from the
RAF and also visited his office but
was informed that he was not available.
[17] She later met him whilst alighting
from his motorcycle. She enquired about the status of her claim but
he informed her that
he was not acting for her anymore. She only
learned on 10 April 2013 that her claim was not submitted after
having visited the
current attorney’s office.
[18] It appears from the above summary
that it is common cause that:
1. The collision, in which the
plaintiff’s husband was tragically killed, took place on 16
March 2005;
2. That in case the identity of the
driver was known, a claim had to be lodged with the RAF within a
period of 3 years therefore
on or before 15 March 2008 and in the
case of an unidentified vehicle, within 2 years;
3. That plaintiff issued and served
summons on the defendant for damages on 10 May 2013.
[19] The issues are:
1. Whether plaintiff instructed
defendant two or three months after her husband’s death
(therefore in or around May or June
2005) to lodge and prosecute a
claim on her behalf, or as defendant sought this Court to conclude,
whether he declined to accept
such mandate on the 8th March 2008;
2. Whether the contents of the letter
purporting to inform the plaintiff that the defendant will not be
able to accept her mandate
or terminating the mandate to lodge the
claim, were explained to her on 8 March 2008 or whether she was
informed that the purpose
of her signature was to lodge the claim.
3. Whether she continuously during the
period between May or June 2005 and 8 March 2008 as well as 10 April
2013 and/or 10 May
2013, contacted defendant to determine the
status of her claim
[20] Mr. Grobler placed strong reliance
on Gunase v Anirudh
2012 (2) SA 398
(SCA) and contended in the main
that the plaintiff was aware that the defendant did not accept her
mandate on 8 March 2008 and
that her claim thereby prescribed on 14
March 2011. He in the alternative argued that even if the Court may
conclude that the mandate
was accepted, the plaintiff should, by the
exercise of reasonable care have acquired knowledge that her claim
had not been lodged
before 14 March 2011.
[21] Mr. Rontgen in the main relied on
Macleod v Kweyiya
2013 (6) SA 1
(SCA). He contended that the issue to
be determined was whether there was a mandate to lodge the claim and
once concluded in the
affirmative, the defendant’s liability
would be established. He argued with great persuasion that the
defendant accepted
the mandate to lodge and prosecute the claim but
failed to do so. The plaintiff in his view only became aware of the
defendant’s
failure to lodge her claim on 10 April 2013.
[22]
Section 12
of the
Prescription Act
68 of 1969
reads as follows:
“12. When prescription begins to
run.
(1) Subject to the provisions of
subsections (2), (3), and (4), prescription shall commence to run as
soon as the debt is due.
(2) If the debtor wilfully prevents the
creditor from coming to know of the existence of the debt,
prescription shall not commence
to run until the creditor becomes
aware of the existence of the debt.
(3) A debt shall not be deemed to be
due until the creditor has knowledge of the identity of the debtor
and of the facts from which
the debt arises: Provided that a creditor
shall be deemed to have such knowledge if he could have acquired it
by exercising reasonable
care”.
[23] Extinctive prescription in terms
of
section 12(3)
only begins to run from the date when the creditor,
has knowledge or is deemed to have knowledge, of the identity of the
debtor,
and of the facts out of which the claim arises. It has been
repeatedly said that the statutory prescription periods are meant to
protect defendants from undue delay by litigants who are reluctant in
enforcing their rights.
[24] It has also been held that one of
the focal purposes of the
Prescription Act is
to protect a debtor
from old claims against which it cannot effectively defend itself
because of loss of records or witnesses caused
by the lapse of time.
If creditors are allowed by their deliberate or negligent acts to
delay the pursuit of their claims without
incurring the consequences
of prescription, that purpose would be subverted. (See Uitenhage
Municipality v Molloy
[1997] ZASCA 112
;
1998 (2) SA 735
(SCA)
[25] It is a well-established principle
that a creditor is not able, by his own conduct, to postpone the
commencement of prescription
by his inaction to ascertain the
identity of the debtor and of the facts from which the debt arises.
As was held in The Master
v I L Back & Co Ltd and Others1983 (1)
SA 986 (A) 'If all that is required to be done to render the debt
payable is a unilateral
act by the creditor, the creditor cannot
avoid the incidence of prescription by studiously refraining from
performing that act’.
[26] In Drennan Maud & Partners v
Pennington Town Board
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA), Olivier JA held that:
“
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 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 arise”
[27] In Leketi v Tladi NO and others
[2010] 3 All SA 519
(SCA) Mthiyane JA held at para 18 that:
“It seems to me that the adverse
operation of
section 12(3)
is not dependent upon a creditor’s
subjective evaluation of the presence or absence of “knowledge”
or minimum
facts sufficient for the institution of a claim. In terms
of
section 12(3)
of the
Prescription Act, the
“deemed
knowledge” imputed to the “creditor” requires the
application of an objective standard rather than
a subjective one. 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 of…”
[28] The onus rests on the defendant
claiming prescription to allege and prove such knowledge, or deemed
knowledge. (See Gericke
v Sack
1978 (1) SA 821
(A)) Diemont JA
however held at 827 E-G that the Courts take cognizance of the
handicap under which a litigant may labour where
facts are within the
exclusive knowledge of his opponent and they have in consequence
held, as was pointed out by Innes J., in
Union Government (Minister
of Railways) v Sykes,
1913 AD 156
at p. 173, that "less evidence
will suffice to establish a prima facie case where the matter is
peculiarly within the knowledge
of the opposite party than would
under other circumstances be required." But the fact that less
evidence may suffice does
not alter the onus which rests on the
defendant. This burden shifts to the plaintiff only if the defendant
has established a prima
facie case.
[29] I am faced with mutually
irreconcilable accounts relating to the issues referred to above. In
order to reach a conclusion on
disputed issues in a civil trial a
court must determine (i) the credibility of witnesses, (ii) their
reliability and, (iii) the
probabilities. (See Stellenbosch Farmers'
Winery Group Ltd and Another v Martell ET CIE and others
2003 (1) SA
11
(SCA) at par 5.
[30] I will proceed to deal with these
disputed issues:
• Was there a mandate?
[31] The defendant’s version is
that plaintiff visited his office for the first time on 8 March 2008
and he refused to assist
her but advised her to see another attorney.
The plaintiff in turn stated that she instructed the defendant in
2005 to lodge and
prosecute the claim on her behalf.
[32] I should approach this dispute
mindful of the fact that the onus rests on the defendant to allege
and prove prescription. The
primary source from which one may deduce
whether there was a mandate is the letter that professed, according
to the defendant,
to inform plaintiff that he will not act on her
behalf. This letter is the epitome upon which defendant sought to
show the date
from which prescription started to run. It also sought
to indicate that defendant had no mandate and that he informed
plaintiff
to see another attorney due to the impending prescription
of her claim.
[33] This letter however strongly
militates against the conclusion that defendant seeks this court to
reach. Two critical averments
in this letter are in direct conflict
with the testimony of the defendant and his key witness Skosana and
these averments casts
doubt over their reliability, honesty and
credibility.
[34] It is inconceivable that defendant
would dictate in this letter that there was a breach of trust and
that he is no longer acting
on behalf of the plaintiff if there was
no prior mandate to lodge and prosecute the claim. His explanation
that he did not know
what to write in the letter is deplorable and
has no basis. A breach of trust is a precursor to a termination of
mandate and it
validates the plaintiff’s assertion that she
mandated the defendant to lodge the claim on her behalf. Any
inconsistencies
in plaintiff’s evidence relating to the
response given in the request for further particulars concerning the
date she instructed
him becomes immaterial in view of the contents of
this letter. The unassailable conclusion is that there was such a
mandate.
[35] I am satisfied, despite the
conflict between the plaintiff’s evidence and the response
given in the request for further
particulars, that plaintiff gave
defendant a mandate to lodge or prosecute her claim in or around
May/June 2005. The plaintiff’s
version as opposed to that of
the defendant is in my view more probable and consistent with the
averment in the letter.
• Were the contents of the letter
explained to plaintiff on 8 March 2008?
[36] The defendant asserts that the
contents of the letter were explained to the plaintiff in English and
interpreted by Skosana
in Sesotho. The plaintiff conversely stated
that she did not read the document, the contents thereof were not
explained to her,
and she was told that the purpose of her signature
was for the claim to be lodged. I already concluded that defendant
was unreliable
on the issue relating to the mandate. It is highly
improbable that he would draft a letter absolving himself from
possible liability
against someone who merely intended to give him
instructions and therefore not his client.
[37] The question as to whether the
contents of the letter were explained to the plaintiff should
therefore be seen in this context.
There are a number of
improbabilities in defendant’s version on this issue. His
evidence is that the plaintiff conversed
with him in English. The
entry at the bottom of the letter, which was supposedly made by
plaintiff stating that “I understand
the meaning of this
letter”, is also in English.
[38] The plaintiff should therefore
also have spoken to him in English when she initially handed the
documents over with a view
of instructing him to lodge the claim. It
is however strange that he insisted that what he informed her and the
contents of the
letter be interpreted in Sesotho if it was clear
throughout that the plaintiff was conversant in English. Skosana
conversely stated
that it appeared as if plaintiff did not understand
when defendant told her that he will not be able to assist her since
she merely
kept quiet. She therefore not only had to explain what
defendant related but also the contents of the letter.
[39] Both defendant and Skosana could
in detail and without hesitation, give a similar version of the
events that took place almost
six years ago. It is mind boggling that
the document that they could refresh their memories from and which
should have been their
reference point after such long passage of
time was contrary to their recollection.
[40] It is thought-provoking that both
defendant and Skosana did not explain the entire contents of the
letter to plaintiff but
only explained the part that defendant could
not assist her and that she should consult another attorney. It is
strange that Skosana
read the letter and interpreted its contents,
but did not interpret the breach of trust and the part that defendant
will no longer
be acting on her behalf.
[41] Skosana clearly attempted to
support her employer’s version, not appreciating the
inconsistency of her evidence with
the letter that he drafted. What
was explained by both was not in line with the contents of the letter
that the plaintiff supposedly
understood and signed.
[42] Plaintiff in turn maintained that
she was placed under the impression that her signature was required
to lodge the claim. Having
concluded that she gave defendant
instructions to lodge her claim, the question is simply whether by
signing the document, she
was signifying her intention to accept that
due to breach of trust, defendant was terminating his mandate. The
answer is in my
view in the negative based on the inconsistencies in
the defendant’s version.
[43] The defendant does not rely on the
root of the document which is the termination of his mandate due to
breach of trust. He
however, in the same breath, wishes to rely on
the averment that he informed plaintiff that she should consult
another attorney.
He wants to rely on the document but wants a
certain portion thereof to be ignored. This is the idiomatic wanting
to have one’s
bread buttered on both sides.
[44] The evidence around the
defendant’s letter of 8 March 2008 is crucial. The plaintiff
acknowledges that she signed the
letter but the question is whether
she understood the contents thereof. The letter indicates that
plaintiff was a client of the
defendant at that stage. I reject
defendant’s assertion that he saw the plaintiff only on that
day. I likewise reject the
evidence of defendant and Skosana that
they explained the contents of the letter to her or gave her a copy.
A prudent attorney
would not merely have written a letter to
exonerate him. An attorney in such situation, seeing that a client’s
claim is about
to prescribe, should try to arrange an appointment an
attorney who can help the client., particularly a client who is not
sophisticated
and does not appear to understand English.
[45] He can in my view therefore not
succeed on the first leg of
section 12(3)
of the
Prescription Act
that
the plaintiff had knowledge of the identity of the facts from
which the debt arose.
• Could plaintiff be deemed to
have acquired such knowledge by the exercise of reasonable care?
[46] The next and most critical
question relates to the second leg of
section 12(3)
, whether the
plaintiff is deemed to have had knowledge of defendant’s
failure to lodge her claim if she could have acquired
such knowledge
by the exercise of reasonable care.
[47] The key enquiry is whether
plaintiff took reasonable steps to determine whether her claim had
been lodged with the RAF. Alternatively
whether a reasonable person
in plaintiff’s position would have deduced such facts from
which the debt arose. 'Debt' in relation
to the
Prescription Act, for
current purposes, refers to the obligation of defendant to perform
services on behalf of plaintiff.
[48] The evidence led by defendant is
that he never had any contact with plaintiff after the letter dated 8
March 2008. Skosana
and van der Merwe also confirmed that they never
saw plaintiff at defendant’s office after this date. I regard
this averment
by Skosana as extremely strange. Her post description
is that of a messenger. Such an occupation is not office bound but
entails
running errands for your employer. Despite the long passage
of time, with the utmost conviction, she unambiguously stated how
many
times plaintiff visited their office. She could in detail
explain the dates that plaintiff visited their office and when she
did
not turn up for her appointment. This was in my view a clear
indication of her bias and attempt to validate her employer’s
version.
[49] Van der Merwe was in turn frank to
state that she had no independent recollection of the plaintiff
visiting their office and
whether she received phone calls from her.
She explained the procedure that she follows should a client make an
appointment or
leave a message for the defendant. The significance of
this procedure is that all appointments are entered in two diaries
but no
such entries are made for walk-in clients. Telephone messages
are given to the defendant upon his arrival at the office but no
record is kept of such messages. The process that they followed could
therefore not cast doubt on plaintiff’s version.
[50] Plaintiff in turn stated that she
continuously tracked the progress of her case until she was told by
defendant to leave the
case to him as he knows what he is doing. She
signed a document on 8 March 2008 which was purportedly aimed at the
submission of
her claim. She relocated to Frankfort and often called
defendant’s office to track the progress of her claim. She
however
never managed to speak to him as he never returned her calls.
She was once told that her papers were not back yet. She visited his
office but could not find him but at one stage met him on his
motorcycle and enquired about the claim. He told her that he
terminated
her mandate. She consulted her current attorney and
discovered on 10 April 2013 that the defendant failed to lodge her
claim. She
could however not give any dates when the above happened.
[51] The plaintiff was in my view a
credible and a reliable witness save for certain aspects that she
testified about, but were
not put during cross examination. Subject
to the difficulties of recollection which any witness would have
after the lapse of a
number of years, there is nothing to criticise
in the plaintiff’s evidence about the mandate and her conduct
thereafter.
I accept what she says.
[52] Mr. Grobler placed a great deal of
emphasis on the fact that certain points were not put by the legal
representative to the
defendant when he testified and argued that her
version should be rejected as a result. He contended that Mr. Rontgen
failed to
put it to defendant that plaintiff visited his office and
he told her that she should not make herself a nuisance as he is
familiar
with his work. He also emphasized that no statement was made
regarding the steps that plaintiff took after 8 March 2008 to enquire
about her claim.
[53] In President of the Republic of
South Africa and others v South African Rugby Football Union and
Others
2000 (1) SA 1
(CC) it was held that it is essential, when a
party intends to suggest that a witness is not speaking the truth on
a particular
point, to direct the witness's attention to that fact by
questions put in cross-examination showing that an imputation is
intended
to be made and to afford the witness an opportunity of
giving any explanation and defending his or her character.
[54] It was further held that if the
point in dispute is left unchallenged, a party calling the witness is
entitled to assume that
the uncontested testimony is accepted as
correct. The precise nature of the imputation should be made clear to
the witness so that
it can be met and destroyed, particularly where
the imputation relies upon inferences drawn from other evidence in
the proceedings.
The Court however warned that these rules relating
to the duty to cross-examine must not be applied in a mechanical way,
but always
with due regard to all the facts and circumstances of each
case.
[55] The facts of the matter at hand
are that the defendant disputed outright, that there was any mandate
from plaintiff to lodge
the claim on her behalf. This was challenged
by the plaintiff. Even if it was put to defendant that he assured
plaintiff that he
will deal with her claim, such a statement would
have been met with a denial based on the nature of the defendant’s
defence.
Mr. Rontgen’s failure to put this averment was in my
view therefore not fatal.
[56] To Mr. Rontgen’s credit, he
put it to the defendant that plaintiff contacted defendant’s
office telephonically
and that she later met defendant on his
motorcycle. It is not in dispute that he rides a motorbike. This was
met with a denial
and Van der Merwe was called to dispel this
averment and evidence by plaintiff. There can therefore be no
imputation that defendant
did not have an opportunity to respond to
this evidence. The circumstances herein are therefore not such as to
reject plaintiff’s
evidence because it was not put to the
defendant in cross examination.
[57] Mr. Grobler further reasoned that
even if it may be accepted that defendant did not explain the
contents of the letter to plaintiff,
then in that case she did not
exercise reasonable care to have acquired the necessary information.
He contended that reasonable
care did not merely entail making
enquiries but plaintiff should have gone further than that to get
information on the status of
her claim. The warning bells should,
according to him, have sounded when the defendant failed to revert to
her after her calls.
[58] The question is therefore whether
a reasonable person in her position would have acted differently and
deduced the facts from
which the debt arose at an earlier stage. The
following factors in my view refute the argument by Mr. Grobler:
[59] The plaintiff is an
unsophisticated person who failed her matric exams. When confronted
in cross examination as to why she
did not insist to see the
defendant when she visited his office, she indicated that it would
have been disrespectful. She clearly
had a very high regard for the
defendant. This is therefore the standard of reasonable care upon
which she should be measured.
[60] She was told by defendant that he
knows what he is doing and should leave her claim to him. She
logically left her claim in
his capable hands. A lay client is
customarily entitled to regard an attorney duly admitted to the
practice of the law as a skilled
professional practitioner. Such a
client places considerable reliance upon the competence, skill and
knowledge of an attorney and
trusts that the attorney will fulfil his
or her professional responsibility.
[61] She did not just sit back and do
nothing after having signed the documents that purportedly were to
authorise the submission
of her claim. She made enquiries, went to
his office and enquired from him when he was on his motorbike. She in
my view acted reasonably
under these circumstances.
[62] The defendant had accepted her
mandate. He relied on a letter that supported plaintiff’s
assertion that there was such
a mandate. This letter was the basis
upon which defendant could refresh his memory and effectively defend
himself. The need for
the protection afforded by the
Prescription Act
to
protect a debtor from old claims against which he cannot
effectively defend himself because of loss of records or witnesses
caused
by the lapse of time, therefore falls away.
[63] Mr. Grobler quoted a number of
cases in support of his argument. These cases are in my view
distinguishable from the facts
in casu.
[64] In Gunase v Anirudh supra the
creditor failed to make reasonable enquiries regarding the status of
his RAF claim from 2000
to 2004. He did not go to the appellant's
offices or contact any other person for assistance during this period
and also failed
to contact the new attorney that had taken the
debtor’s files over.
[65] In Jakobo v Grimbeek case 380/2013
an unreported judgment delivered on 7 August 2014 by Kruger J in the
Free State High Court
Bloemfontein, the plaintiff failed to make any
enquiries regarding the status of his RAF claim from 2002 to 2012
after having attained
the age of majority in 2004. The defendant had
long destroyed his file and had no recollection of the claim.
[66] In Drennan Maud & Partners v
Pennington Town Board supra the enquiry was when the Town Board,
acting through its employees
and members, became aware, or were
deemed to have become aware, that the appellant had committed a
design fault on a reinforced
concrete retaining wall which resulted
in a failure to protect the Town Board's properties as described.
Officers of the Town Board
inspected the wall in September 1989 and
observed certain defects on the wall. The cause of action arose in
November 1989 but summons
was served more than three years later.
[67] The Court upheld the special plea
and held that the nature of the design fault was clearly visible at
the toe end of the wall
in November 1989. Anyone observing what was
taking place there could see the scouring action of the river and
sea, and how sand
behind the wall was being sucked out into the
river. The court held that the creditor was deemed to have had 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 arose.
[68] I conclude that the plaintiff
discovered on 10 April 2013 that the defendant failed to lodge or
prosecute her claim. Her claim
against the defendant had therefore
not prescribed when summons was served on the defendant on 10 May
2013.
[69] I therefore make the following
order:
1. The special plea is dismissed.
2. The costs are to be reserved for
determination by the trial court
LBJ MOENG, AJ
On behalf of the plaintiff: Mr. K.M
Rontgen
Instructed by: McIntyre & Van
Der Post
BLOEMFONTEIN
On behalf of the defendants: Adv.
J.F Grobler
Instructed by: Lovius Block
BLOEMFONTEIN