Takalani v Booyens Du Preez & Boshoff Inc. (30762/2006) [2009] ZAGPPHC 78 (29 May 2009)

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[2009] ZAGPPHC 78
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Takalani v Booyens Du Preez & Boshoff Inc. (30762/2006) [2009] ZAGPPHC 78 (29 May 2009)

IN
THE HIGH COURT OF SOUTH AFRICA
(NORTH
GAUTENG, PRETORIA)
DATE:
29/05/2009
CASE
NO: 30762/2006
UNREPORTABLE
In the matter between:
NENZHELELE
JOSEPH TAKALANI
Plaintiff
And
BOOYENS
DU PREEZ & BOSHOFF INCORPORATED
Defendant
JUDGMENT
LEDWABA,
J
[1] The
parties agreed, and it was so ordered in terms of Uniform Rule
33(4), that only the special plea raised by the defendant
be
adjudicated upon. The parties further agreed that the defendant bore
the onus.
[2] The
plaintiff issued summons against the defendant in September 2006 for
damages arising out of the defendant’s breach of
agreement between
the parties and the defendant’s failure to perform its
professional duties properly and/or without negligence.
Summons was
served on the defendant on 13
th
October 2006.
[3] On
31
st
October 1999 at Giyani an accident occurred between a truck driven
by the insured driver and a minibus driven by the plaintiff.
The
plaintiff instructed defendant to institute a claim for damages
against the Road Accident Fund (RAF).
[4] In
October 2001 the defendant served the RAF with the duly completed
MMF1 form, together with some annexures, wherein an amount
of R309
740 was claimed. In September 2002 the fund offered the plaintiff
amounts totalling to R 25 166, see page 31 of exhibit
‘A’ (the
first offer). The offer was increase and past loss of earnings in
the amount of R 10 200 was added, see page 31 of
exhibit ‘B’
(the second offer).
[5] The
defendant called two witnesses to testify on its behalf viz, Mr.
Stephanus Booyens, a director at defendant’s firm of
attorneys and
Mr. Ndokiseni Netshiunda, an attorney who was duly admitted in April
2000 and was a professional assistant at the
defendant’s firm of
attorneys until 2004. Mr. Booyens’s evidence was simply that after
summons was received at the Giyani branch
he collected the file and
kept it at their Louis Trichardt office. He made copies of the file
for their insurance claim. The original
file can now not be traced.
[6]
Mr. Netshiunda testified that grew up knowing the plaintiff and he
handled the plaintiff’s claim. Before the claim was lodged
with
the RAF, he discussed with the plaintiff how the amount claimed was
computed.
[7] After
receiving the first offer from the RAF, the plaintiff instructed him
to reject the offer. He then discussed the offer
with the claims
handler which resulted in the second offer being made by the fund.
When he discussed the second offer with plaintiff
in about June
2003, the plaintiff said it was too low and he knew of a claimant
who received R 80 000 from the RAF but his/her
injuries were less
serious. His response to the plaintiff was that the fund did not
only consider the injuries but also how the
accident occurred. The
plaintiff told him to wait further instructions regarding the second
offer.
[8] On
26
th
August 2003 the plaintiff, together with his two relatives, came to
his office being furious and accused him of receiving payment
from
the RAF and demanded the monies paid or the outstanding balance. He
was angered by the plaintiff’s attitude and false accusations.
He
phoned the claim handler in the plaintiff’s presence and the
claims handler confirmed that no monies were paid by the RAF.
He
told the plaintiff to instruct another attorney and to leave his
office.
[9] The
plaintiff left and returned later to apologise because his relatives
and him misunderstood the RAF when they were told about
the offer
sent to the defendant. The plaintiff further told him that he had
serious financial problems and was accepting the second
offer. He
told the plaintiff that if he accepts the offer he could not later
complain that the monies received were insufficient.
He anticipated
that the plaintiff could later claim that the offer from the RAF was
not enough. He then reduced what he said to
plaintiff in writing and
plaintiff signed the document, see page 38 of exhibit ‘A’.
[10] He
then sent a letter to the RAF accepting the second offer.
[11] The
plaintiff kept on phoning to enquire if the discharge form was
received from the RAF. After the discharge form was received
plaintiff signed it on 6
th
November 2003 and he was given a covering letter for him, the
plaintiff, to deliver the discharge form to the RAF by hand.
[12] On
17
th
March 2004 plaintiff signed to acknowledge receipt of an amount of R
28 200 in full and final settlement in respect of monies claimed
from the RAF, see page 62 exhibit ‘A’.
[13] During
cross-examination Mr. Netshiunda further said he, personally, was
not satisfied with the monies offered by the RAF,
however, he
advised the plaintiff to accept the offer because of the allegation
in the claim form that the plaintiff was unable
to work as a taxi
driver could not be sustained. Furthermore, because the RAF had
informed him that they have discovered that the
plaintiff was
employed in Johannesburg. Furthermore, there was a witness who was a
passenger in the plaintiff’s vehicle when
the accident occurred
and he alleged that the accident was caused by the sole negligence
of the plaintiff. Mr. Netshiunda was of
the view that they did not
have a good case on the merits that is why he advised the plaintiff
to accept the offer.
[14] It
was further put to Mr. Netshiunda that the plaintiff’s version is
that the RAF would pay him more than R 200 000 and that
the amount
of R 35 000 was the first payment and further monies would be paid
by the RAF later. Mr. Netshiunda denied the said
version and stuck
to his version. The plaintiff, who was at court, did not testify to
put his version before the court.
[15] The
issue to be decided concerns the time at which prescription started
to run in respect of plaintiff’s claim for damages
against the
defendant.
[16] In
terms of
section
11(d)
of the
Prescription Act 68
of 1969
(the Act)
the plaintiff’s
claim is subject to a three year extinctive prescription period.
[17] Defendant’s
counsel submitted that on the evidence before the court the
prescription period started running on 28
th
August 2003 when the RAF received the acceptance of the offer.
[18] The
crucial question is when did the plaintiff know that defendant acted
improperly, unprofessional and or negligent in breaching
of its
professional duties.
[19]
Section
12
of the Act
reads as follows:
“
When
prescription begins to run
(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 could have acquired it by exercising
reasonable
care.”
[20] There
is no evidence to suggest that defendant prevented plaintiff from
knowing the existence of the debt. There is no doubt
that plaintiff
knows the identity of the plaintiff.
[21] The
crisp issue is whether the plaintiff had actual or deemed knowledge
of the facts from which the debt arises as required
by
section
12 (3) of the Act
prior to 13
th
October 2003. If the plaintiff had the factual knowledge after 13
th
October 2003 the special plea should fail.
[22] The
plaintiff in the particulars of claim does not allege when the
defendant breached the alleged agreement. In paragraph 13.6
and 13.7
of the particulars of claim the made the following allegation:
“13.6 advising
the plaintiff on 6 November 2003 to accept an offer of settlement
from the road Accident Fund in respect of Plaintiff’s
claim in
terms whereof a sum of R35 366,00 and an undertaking in terms of
section 17 of the RAF Act and costs was paid (“the
settlement”);
and
13.7 on
6 November 2003, to the detriment of the Plaintiff, caused the
Plaintiff, in particular due to the aforegoing and under
circumstances where the plaintiff was relying solely on the advice
of the Defendant through its representatives, to accept the
settlement with the Road Accident Fund in respect of Plaintiff’s
claim for a sum which did not amount to adequate compensation
for
the Plaintiff’s injuries and related sequelae.”
[23] On
the evidence of Mr. Netshiunda supported by the contents of page 38
of exhibit ‘A’, contrary to what plaintiff alleged
in the
particulars of claim, the plaintiff informed his attorney and signed
on 26
th
August 2003 that he accepts the second offer from the RAF.
[24] Plaintiff’s
counsel argued that the amount in the second offer and the amount in
the discharge form signed on 6
th
November 2003 differed, the plaintiff has therefore accepted the
offer of the 6 November 2003. I interpose to state that the
difference
is in an amount of R300 which in my view is clear that it
is caused by a calculation error in the second offer.
[25] The
defendant’s counsel submitted, correctly in my view, that the
discharge form was just an administrative process.
[26] It
is trite that a party who raises prescription must allege and prove
the date of the inception of the period of prescription,
see
Gericke
v Sack
1978 (1) SA 821
(A)
.
[27] The
defendant should prove that between 28
th
August 2003 and 13
th
October 2006 the plaintiff knew or had deemed knowledge of the facts
from which the debt arises that the defendant breached the
agreement
or acted negligently.
[28] On
the available evidence where the plaintiff signed to accept the
offer did he know that the defendant breached the agreement
and was
acting improperly and unprofessional?
[29] Based
on the evidence, the plaintiff accepted the offer because he was in
dire need of money, he knew that he is accepting
the money in the
second offer. However, does such conduct impute knowledge of
unprofessionalism and improper conduct on the part
of the plaintiff?
[30] In
Truter and another
v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
,
van Heerden JA in paragraph 16 and 17 on page 174 states the
following:
“[16]…’debt
due’ means a debt, including a delictual debt, which is owing and
payable. A debt is due in this sense when
the creditor acquires a
complete cause of action for the recovery of the debt, that is, when
the entire set of facts which the
creditor must prove in order to
succeed with his or her claim against the debtor is in place or, in
other words, when everything
has happened which would entitle the
creditor to institute action and to pursue his or her claim.
[17]
In a delictual claim, the requirements of fault and unlawfulness do
not constitute factual ingredients of the cause of action,
but are
legal conclusions to be drawn from the facts:
‘
A
cause of action means the combination of facts that are material
for the plaintiff to prove in order to succeed with his action.
Such facts must enable a court to arrive at certain legal
conclusions regarding unlawfulness and fault, the constituent
elements
of a delictual cause of action being a combination of
factual and legal conclusions, namely a causative act, harm,
unlawfulness
and culpability or fault.’”
[31] On
the available evidence supported by documents an amount of about
R309 740 was claimed, the RAF made two offers, after about
two
months the plaintiff accepted the second offer. Mr. Netshiuandi on
the information available to him advised him to accept the
offer. He
further explained to the plaintiff about his options to consult with
an attorney of his choice in June 2003 when it was
clear that the
plaintiff is not satisfied with the offer.
[32] According
to the evidence of Mr. Netshiuandi it was as early as in June 2003
he informed the plaintiff about the offer and
advised him to accept
the offer. If Mr. Netshiuandi was advising the plaintiff was
contrary to their alleged agreement, the plaintiff
knew or should
have known that in at least June 2003. Significantly, he also knew
that he could consult with an attorney of his
choice.
[33] The
plaintiff chose not to testify and put his version before court as
to why was the summons only served on 13
th
October 2006 and as to when did he become aware for the first time
about the facts from which the debt arose.
[34]
I
therefore make the following order:
(i) The
special plea of prescription is upheld.
(ii) Plaintiff’s
action is dismissed with costs which costs include the costs of the
19
th
May 2005.
_______________
A. P. LEDWABA
JUDGE
OF THE HIGH COURT
Date
of hearing: 20 May 2009
Counsel
for Plaintiff: Advocate B. Joseph
Instructed
by: De Meyer & De Vries Attorneys
â„
:
Röntgen & Röntgen Inc.
Counsel
for Defendant: Advocate A. Combrink
Instructed
by: Bennett Francis & Maitin Incorporated Attorneys
â„
: Ledwaba
Mazwai Attorneys