IN THE HIGH COURT OF SOUTH AFRICA
(ORANGE FREE STATE PROVINCIAL DIVISION)
Case No. : 2957/2003
In the case between:
PAULOS DLAMINI Plaintiff
and
E M KUBUSHI Defendant
_____________________________________________________
HEARD ON: 18 & 19 OCTOBER 2005
_____________________________________________________
JUDGMENT BY: EBRAHIM J
_____________________________________________________
DELIVERED ON: 3 NOVEMBER 2005
_____________________________________________________
[1] The plaintiff seeks to recover damages from the defendant in
the sum of R464 200,00. The plaintiff’s cause of action is
based on the alleged negligence of the defendant in settling
the plaintiff’s claim against the Road Accident Fund for an
amount less than that to which plaintiff was allegedly entitled
in law.
[2] The defendant has resisted the plaintiff’s claim on the merits
and, in addition, has raised a special plea of prescription as a
special defence. This judgment deals exclusively with the
adjudication of the special plea. It was agreed by both
parties that this issue could not be disposed of without a fair
amount of evidence being led which related to the merits.
[3] At the commencement of the trial I was informed by counsel
that agreement had been reached between the parties at the
pretrial conference, that
(a) there would be a separation of the issues of merits and
quantum and
(b) the defendant carried the onus of proving that the plaintiff’s
claim had prescribed. Accordingly the trial commenced with the
defendant leading its evidence first.
[4] The following matters were common cause:
4.1 The plaintiff was injured in a motor vehicle accident on
9 September 1992 and accordingly was entitled to
recover damages in terms of the Multilateral Motor
Vehicle Accidents Fund Act 1989 (Act 93/1989).
2
4.2 He consulted the defendant shortly after the accident
and mandated her in her capacity as an attorney to
lodge such a claim for damages in terms of the said
Act.
4.3 A claim in the sum of R20 000,00 was lodged on 26
February 1993 by the defendant on plaintiff’s behalf
which claim was made up of R5 000,00 in special
damages and R15 000,00 in general damages for pain
and suffering.
4.4 No amount was claimed in respect of plaintiff’s loss of
earnings, future loss of earnings and future medical
and hospital expenses.
4.5 On 2 March 1994 the insurance company, Santam
Insurance, made an offer of R9 500,00 in respect of the
capital amount of the claim plus an amount of R900,00
towards legal costs in full and final settlement of all and
any claims which plaintiff had or may in the future have
3
arising from the accident in question.
4.6 The plaintiff signed a special release form known as a
discharge form purporting to accept the settlement with
all its conditions on 2 March 1994. A cheque for R10
400,00 was received by the defendant’s firm from the
insurance company on 31 March 1994.
4.7 On 11 April 1994 the plaintiff was given a cheque for
R8 000,00 by the defendant in respect of the aforesaid
settlement and an amount of R2 400,00 was debited to
the plaintiff’s account in respect of the defendant’s
legal costs on the same day.
4.8 At the time the plaintiff consulted the defendant she
practised under the name and style of L. Kubushi & Co.
with offices at the Finance Building, Phuthaditjhaba in
QwaQwa. In January 1994 she entered into
partnership with one, T. Mosese. It was intended that
her third partner one, Fantisi, should join the
4
partnership and that the practise should be renamed
Fantisi Kubushi & Mosese. This never materialised
because the Law Society of the Free State refused
Fantisi permission to join, so defendant practised under
the name and style Kubushi Mosese from January
1994 to December 1995 at the Consultancy Building,
Phuthaditjhaba in QwaQwa. In January 1996 the
defendant commenced practising once again for her
own account under the name and style Liz Kubushi &
Co. This she did until June 1996 when she joined
another partnership and moved from Phuthaditjhaba to
Bloemfontein in the Free State.
4.9 In September 1994 at plaintiff’s request defendant
obtained a certificate from Santam Insurance Co. in
respect of the settlement of plaintiff’s Provincial
Hospital expenses for medical treatment he had
already received as of that date. The plaintiff received
the certificate from the defendant.
5
[5] In its particulars of claim the plaintiff pleaded its cause of
action against the defendant thus:
“11. The defendant represented at all material times hereto that she
was a professional in respect of such motor vehicle
accident cases and claims and undertook to do all things
necessary so as to protect the plaintiff’s interests and so
as to permit plaintiff’s claim to become lodged timeously
with such agent or responsible instance, so as not to
permit the plaintiff’s claim to become prescribed.
12. The defendant has expressly or impliedly represented to
the plaintiff that she would do all things necessary so as
to ensure that plaintiff was to receive fair compensation in
respect of such injuries.
13. The defendant also undertook that she would not settle the matter
without consulting with the plaintiff first and would obtain the plaintiff’s
agreement to any figure which she intends settling the matter for. Defendant
undertook that she would ensure that fair and reasonable compensation is
paid to the plaintiff.”
[6] It is the plaintiff’s case that the defendant failed to carry out
the plaintiff’s mandate to the plaintiff’s satisfaction for the
following reasons:
6.1 Defendant claimed nothing on behalf of the plaintiff in
respect of future medical expenses and future loss of
6
earnings. Defendant did not inform the plaintiff that
she had received an offer of R9 500,00 in respect of
capital and R900,00 in respect of legal costs from the
insurance company in full and final settlement of the
claim lodged on behalf of the plaintiff.
6.2 She took no steps to negotiate a higher offer with the
insurance company on plaintiff’s behalf but was
satisfied with the initial offer of R10 400,00 altogether.
6.3 The defendant had no authority from the plaintiff to
settle the claim at this amount.
6.4 Defendant requested the plaintiff to sign certain
documents which he identified as the final discharge
form releasing the insurance company from further
obligation to compensate him (exhibit 11). On
defendant’s advice plaintiff signed the form.
6.5 Defendant gave him a cheque for R8 000,00 and
7
informed him that it was an interim payment in respect
of his claim with the insurance company and more
money was to follow.
6.6 Had the defendant told the plaintiff that the offer from
Santam was in full and final settlement of his claim for
damages and that the cheque for R8 000,00 was the
only payment he would receive, he would not have
signed the discharge forms accepting the offer as it
was at all times his intention that defendant elicit a
higher offer from the insurance company.
6.7 He attempted to contact the defendant on several
occasions after April 1994 when he received the
cheque but could not find her. His purpose was to
establish whether she had received any more money
from him from the insurance company. His evidence
was that he was at this stage in financially straitened
circumstances having dissipated the R8 000,00 he had
received. His investigations eventually led him to the
8
offices of his present attorneys of record who he
consulted for the first time on 3 May 2002 with
instructions to trace the defendant. It was only when
the defendant contacted his present attorneys that he
became aware that the payment of R8 000,00 was a
final payment in settlement of his entire claim for
damages against the insurance company.
[7] The defendant was adamant in evidence that she had
explained to the plaintiff on 2 March 1994 prior to him signing
the discharge that the amount of the settlement was R9
500,00 in respect of capital and R900,00 in respect of her
legal costs and that the implications thereof for him was that
if he accepted the offer he would have no further recourse to
the insurance company for further payment. She was
consistent in her denial that she had told the plaintiff that the
sum of R8 000,00 was an interim payment and that she had
persuaded him to sign the discharge form under false
pretences. She said that the plaintiff with the full knowledge
that the payment was the only one he would ever receive,
9
accepted the offer because he desperately was in need of
money. She testified that in submitting the plaintiff’s claim for
R20 000,00 she had deliberately excluded a claim for future
medical expenses in view of the fact that the doctor who
completed the statutory medical report accompanying the
claim, had specifically excluded the necessity of future
medical treatment. Indeed, Doctor Schnaid, a witness
called by the plaintiff was corroborative of the defendant’s
version in this regard. He said that immediately after the
accident it would not have been clear to a medical doctor
what the exact nature and seriousness was of the injury
plaintiff had sustained and whether or not there would be a
permanent disability necessitating a claim for future medical
expenses. Indeed the defendant testified that the doctor who
completed the statutory medical report, upon which she
relied to formulate the plaintiff’s claim, had specifically
excluded the necessity for future medical treatment by
indicating that future medical treatment was not foreseen on
the claim form (exhibit A4). Similarly a claim for future loss
of income was omitted because the plaintiff, being a hawker,
10
was not in possession of a hawker’s licence which by
regulation of the QwaQwa municipality was a prerequisite for
anyone plying the hawking trade in QwaQwa. This was not
disputed by the plaintiff. The defendant also readily admitted
that the amounts claimed in respect of general damages and
special damages, i.e. R20 000,00, was based on her
experience in handling third party matters but she was
specific in excluding characterising herself as a specialist in
third party matters. She did however stress that she had
dealt with a number of such matters in her general litigation
practice. She agreed that she had not shown the document,
exhibit A10, incorporating the offer to settle nor had she gone
through it or the discharge form, that is exhibit A11, verbatim
with the plaintiff. According to her she was satisfied that she
had explained the legal consequences of both the
documents to the plaintiff. She also confessed to having
failed in her statutory duty as an attorney instructed by the
Legal Aid Board, as was the case in this matter, to, firstly,
inform the Board of the receipt of the offer to settle and the
contents thereof and take instructions thereon from the
11
Board and second to account to the Board on the settlement
of the matter in connection with the costs and fees owing.
She also conceded that she had not prepared a full and
detailed account to the plaintiff reflecting amounts received
from the insurance company and amounts debited to the
plaintiff in respect of costs.
[8] The issue therefore which arises for determination with
regard to the special plea, is the following:
Was payment of the R8 000,00 received by plaintiff as a final
once off payment in full settlement of his claim for damages
against the insurance company or was it received as an
interim payment by the plaintiff in the belief that further
payments would follow? This is a credibility issue which in
the circumstances of this case can only be decided with
reference to the underlying wider probabilities.
[9] I am of the view that the probabilities are overwhelmingly in
favour of the defendant. I say so essentially in view of the
fact that the plaintiff cut a very poor and pathetic figure in the
12
witness box with frequent and selective loss of memory. By
this I refer not to his appearance and demeanour but to the
content of his evidence and the manner of his giving it.
Throughout his testimony the plaintiff came across as a very
confused individual incapable of giving a proper and
consistent account of the events to which he was testifying.
He constantly chopped and changed his evidence, and the
impression I gained was that he did so for the sake of
convenience. For example, he was adamant that the offer to
settle and its import and legal consequences for him were
not explained to him by the defendant but when asked if he
had an independent recollection of the particular day’s
events with reference to his meeting with the defendant and
the content of their conversation, he said he could not
remember the day at all. He also could not remember
signing the discharge form (exhibit A11). In addition he
testified that he received the cheque payment of R8 000,00
immediately after he signed the discharge form on the same
day. He persisted in this belief despite being shown the
different dates on the discharge form viz 2 March 1994 and
13
on the cheque viz 11 April 2004. He was also shown
documents proving that the insurance company had only
paid the money on 31 March 1994. This too was to no avail
and failed to persuade him that he was mistaken in his
evidence. The same criticism is characteristic of his
evidence in connection with his procuring of the certificate for
payment of past medical expenses from the defendant. He
at first said he collected it from the defendant; then he said
that she had posted it to him and then later still that he had
received it by fax. So too when it came to his reasons for
waiting approximately eight years to take constructive steps
to find the defendant in the belief that he was entitled to
receive further payments from her. His explanation was a
weak:
“I could not find her at the Post Office building where her offices
had been. She was no longer there.”
When asked why he had not gone to another attorney in
QwaQwa after 1994 when he found that his money had dried
up and he could not find Miss Kubushi, he answered:
14
“My trust was with Miss Kubushi. With me once I reach an
agreement with a person I do not pin my hopes on anyone else
but I finally ran out of patience.”
At no stage did he make any attempt to consult another
attorney in QwaQwa. His explanation for this is
unsatisfactory when viewed against the length of time which
elapsed before he decided to consult his present attorneys of
record. His evidence was that he only started looking for the
defendant after he had spent the R8 000,00. On his own
evidence then he started looking for Miss Kubushi only once
he realised that his money had dried up and he needed more
money. It follows as a matter of simple logic that if the R8
000,00 payment had been dissipated and he had no means
of income whatsoever, which is his undisputed evidence, he
would not have waited until all his money had been spent
before making attempts to locate the defendant if he knew all
along that he was entitled to further payment from the
insurance company. A reasonable person in the plaintiff’s
shoes would have made a determined effort long before his
15
“interim payment” had dried up to trace the defendant and
elicit further moneys if he honestly and truly believed that he
was entitled thereto. That the plaintiff did not do so,
indicates the improbability and total lack of veracity of his
having been told by the defendant that he was to receive
further money from the insurers. The submission was made
on plaintiff’s behalf that such forward thinking ability was too
much to expect of one with the limited educational standard
and lack of sophistication of the plaintiff. I cannot agree. A
lack of proper education and simplicity do not deprive one of
common sense which is all that would have been required of
the plaintiff if he is to be believed and if it was indeed the
case that he had not been told that his claim for damages
had been limited to the sum of R10 400,00 inclusive of costs
at the time he signed the discharge form (exhibit A11). A
further aspect of the case which detracts from the credibility
of the plaintiff, is the fact that not once during the entire
period from September 1994 through to June 1996 did he
raise the issue of further payments with the defendant,
despite the fact that she was still in Phuthaditjhaba in the
16
QwaQwa area throughout this time. This was never disputed
in evidence. And finally, his testimony that he could not read
and therefore was unaware of the content of the letter of
discharge (exhibit A11) settling his claim at R10 400,00 flies
in the face of the two letters (exhibit A5 & A6) which he wrote
to his former attorneys of record requesting them to close
their file in view of his having instructed the defendant in the
meantime to lodge his claim for damages.
[10] Much was made in argument by plaintiff’s counsel of the fact
that even on the defendant’s own evidence, it was clear that
she had not carried out her duty to her client, the plaintiff,
and she had not done everything that was possible to get
him a better offer. Nor did she explain the offer (exhibit A10),
to the plaintiff. She had not identified the actual offer
referring to what was capital and what was costs. The
defendant conceded this but insisted that on acceptance of
the cheque of R8 000,00 the plaintiff was well aware that the
matter had been settled in full as she had explained that to
him and she had explained that he would not get any further
17
moneys from her in respect of his claim. I cannot fault Miss
Kubushi’s approach. In view of her evidence that she
explained the offer which was recorded on the discharge
form which was in similar terms to the terms of the offer to
settle (exhibit A10), I am satisfied that she complied with the
requirement of identifying to the plaintiff the essentials of the
offer. For all of the above reasons, I find that the
probabilities are overwhelmingly in favour of the defendant’s
version that the plaintiff was fully aware that he had accepted
the sum of R8 000,00 in full settlement of his claim for
damages and that no further moneys would be coming to
him. The fact that defendant failed in her statutory duties in
the manner already alluded to in this judgment, does not in
my view, detract from her credibility on the gravamen of this
case namely that she acted in the best interests of her client,
the plaintiff, and that in doing so she had informed the
plaintiff of the terms of the settlement and that the settlement
was a final discharge of the plaintiff’s claim against the
insurance company. Conversely, I am unable to accept the
explanation given by the plaintiff as to why he allowed a
18
lapse of time of approximately eight years before consulting
a firm of attorneys in order to establish whether or not any
further moneys were owing to him. I find his explanation to
be just not credible, because of the inherent improbabilities
to which I have referred.
[11] I turn now to the question of whether or not the plaintiff’s
claim has prescribed by the effluxion of time. For the
purposes of the adjudication of the special plea, I find that
the explanation given by the plaintiff as to why he waited so
long to institute his claim for damages against the defendant,
to be incapable of honest belief.
11.1 Summons in this matter was issued on the defendant
on 20 July 2004. The claim was lodged on 26
February 1993 and settled on 2 March 1994.
Section 12(1) of the Prescription Act 68 of 1969
provides:
19
“Subject to the provisions of subsections (2) and (3),
prescription shall commence to run as soon as the debt is
due.”
The Prescription Act of 1969 contains no definition of
the term “due date”. It is accepted that in the
interpretation of statutes words must be given their
ordinary grammatical meaning and it is a primary rule
in the construction of statutes that the language of
legislation should be read in its ordinary sense. See
UNION GOVERNMENT (MINISTER OF FINANCE) v
MACK 1917 AD 731 at 739; S v COCKLIN EN 'N
ANDER 1971 (3) SA 776 A at 781.
The usual meaning of the word due is “owing and
already payable” LAGERWEY v RICH AND OTHERS
1973 (4) SA 340 (T) at 345.
11.2 In order for the question of prescription to rise, two
things are prerequisite – the debt must have arisen and
the debt must be due. For purposes of the adjudication
20
of the special plea, I have assumed that a debt has
arisen. The only question is, is it due?
Section 10 of the Prescription Act of 1969 provides for
the extinction of a debt after the lapse of certain
periods stipulated in section 11 of the Act. A debt
which arises from a breach of contract does not
become recoverable until loss or damage has been
suffered. See ELECTRICITY SUPPLY COMMISSION
v STEWARTS AND LLOYDS OF SA (PTY) LTD 1981
(3) SA 340 (A) at 344 F – G and OERTEL EN
ANDERE NNO v DIREKTEUR VAN PLAASLIKE
BESTUUR EN ANDERE 1983 (1) 354 (A) at 370 B.
Both Mr. R öntgen, who appeared for the plaintiff and
Mr. Cronje, who appeared for the defendant, agreed
that a claim for damages is a debt as envisaged in
section 10(1) of the Prescription Act of 1969 and that in
terms of section 11(d) of the Act the period of
prescription applicable to such a debt is three years.
21
11.3 As it stands it is the case for the defendant that the
plaintiff’s claim for damages against the defendant has
become prescribed by the effluxion of time and that
any summons instituting action ought to have been
served on the defendant on or before either 25
February 1996 being three years from the date of the
plaintiff’s signature of the claim for compensation under
the Motor Vehicle Accidents Act 1989, that is 26
February 1993, alternatively on or before 1 March 1997
being three years from the date on which the plaintiff
signed the discharge (exhibit A11) accepting the
settlement from the insurance company, that is 2
March 1994.
12.1 The plaintiff’s case is that the running of prescription
was interrupted in view of the disputed settlement
agreement and that prescription can only run from the
date on which the plaintiff instructed his present
attorneys of record to trace defendant, i.e. 3 May 2002.
22
Therefore the plaintiff pleads that his claim has not
become prescribed.
12.2 In view of the credibility findings I have made and more
specifically in view of the fact that I have rejected
outright the explanation given by the plaintiff for the
inordinate length of time which he took in instituting the
action for damages against the defendant as being non
credible, it is my finding that as of the date of the
service of the summons on the defendant, that is 20
July 2004, the plaintiff’s claim had become prescribed,
he having had three years only from the date of either
of the lodging of his claim for damages under the Motor
Vehicle Accidents Act 1989, alternatively three years
from the date on which he accepted the settlement by
signing the discharge form, to sue the defendant for
damages for breach of contract.
[13] Accordingly judgment is awarded as follows:
23
1. The special plea of prescription is upheld.
2. The plaintiff’s claim against the defendant is dismissed.
3. The plaintiff is ordered to pay the defendant’s costs.
_____________
S. EBRAHIM, J
On behalf of plaintiff : Mr. K.M. Röntgen (Snr)
Instructed by:
Bothma Nothnagel & Röntgen
BRAKPAN
On behalf of defendant: Adv. P.R. Cronje
Instructed by:
Naudes
BLOEMFONTEIN
/sp
24