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[2025] ZAKZPHC 113
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Mncwabe v S S Nqayi Attorneys (9272/2023P) [2025] ZAKZPHC 113 (29 October 2025)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
DIVISION, PIETERMARITZBURG
CASE NUMBER:
9272/2023P
In
the matter between:
STANGUOUS
MZONZIMA MNCWABE
PLAINTIFF
And
S S NQAYI
ATTORNEYS
DEFENDANT
JUDGMENT
P
C BEZUIDENHOUT J
:
[1]
Plaintiff instituted an action against Defendant claiming damages of
R5 000 000.00 on
the basis that Defendant, who acted as his
attorney in a claim against The Road Accident Fund (RAF) did not
perform his duties
in terms of what is expected of an attorney.
The incident occurred during 2011 and the claim against Defendant was
instituted
on 21 June 2023. The claim against the RAF was
settled with the RAF during November 2013.
[2]
The matter was defended by Defendant who filed a special plea on the
basis that payment was made
to Plaintiff by Defendant on 15 November
2013 and that the claim had accordingly in terms of section 11 of the
Prescription Act
prescribed on 14 November 2016. On the merits
it was pleaded by Defendant that he was given instruction to finalise
the already
lodged claim against The Road Accident Fund and that that
is what he did. He was under instruction to swiftly obtain
finalisation
of the claim and that despite all advice and support
offered by Defendant to Plaintiff he was instructed to reach a swift
settlement.
Plaintiff’s word was final to accept the
settlement proposal that was received and despite advice from
Defendant Plaintiff
accepted it and that Defendant did not act
negligently nor did he breach any contract. There was an
amendment by Defendant
to the special plea setting out that Plaintiff
waited more than nine 9 years before instituting these proceedings
and that they
had therefore prescribed. In replication to
Defendant’s special plea it was pleaded that Plaintiff as a lay
person
would not have acquired the actual, alternatively constructive
knowledge of the identity of the debtor nor of the facts giving rise
to the debt and therefore the claim had not prescribed as the claim
only arose on 25 October 2022.
[3]
Plaintiff brought an urgent application to be heard on the first day
of the trial that a private
investigator’s report, which was
discovered by Defendant, be struck out and Defendant be interdicted
to use this report.
At the commencement of the trial the
parties sought an order by consent in this regard in the following
terms.
1.
Defendant is interdicted from using in evidence the report from NMK
Forensics discovered
on 25 September 2025.
2.
Defendant is ordered to pay the costs of the urgent application dated
9 October 2025 with
counsel’s fees on scale B.
This
order was accordingly granted.
[4]
Further it was submitted by the parties that due to the special plea
of prescription being raised
by Defendant that it was agreed between
them that Defendant would have the duty to begin. The only
issues which had to be
decided was the special plea of prescription
and the liability of Defendant. The other issues would not be
applicable at
this stage. The parties also handed in a combined
trial bundle which was marked Exhibit “A”.
[5]
Defendant testified that he is a qualified attorney practicing under
his own name and was admitted
as an attorney in 2009. At the
time he was working at Mathonsi Attorneys and in 2013 opened his own
practice and was already
practicing on his own during September
2013. He commenced acting for Plaintiff while still employed by
Mathonsi Attorneys.
He had an appointment and consultation with
Plaintiff at his office at Mathonsi attorneys which was arranged by a
Mr. Ngidi and
was informed that he wanted to pursue a claim against
The Road Accident Fund. Plaintiff was together with his wife
and a
minor child. He established that there was already
attorneys who had instituted a claim against the RAF, one Fatima
Karodia
Attorneys. He was instructed to take over the matter.
Karodia Attorneys agreed but wanted a fee of R32 265.00 for work
which they had done. Plaintiff was not happy with the amount
which was charged by Karodia Attorneys and lodged a complaint
with
the KwaZulu-Natal Law Society (as it was at the time). His
complaint against the fee was dismissed.
[6]
He and Plaintiff conversed in isiZulu and he advised him that the
claim had two heads such as
general damages and special damages for
example for loss of earnings etc. He established that a certain
medical report and
Form RAF1 had been submitted by Karodia
Attorneys. In respect of special damages an amount of R1.00
only was claimed under
each of the headings and stated that it would
be quantified at a later stage.
[7]
At the time of consultation Plaintiff was unemployed but stated that
for three months prior he
was employed by Ladysmith Municipality as a
grass cutter. He however had no employment or salary advice and
he gave him a
form to take to his former employer to complete in
respect of loss of income. He was also advised that he had to
see an orthopaedic
surgeon and be assessed by an occupational
therapist. Form RAF4 had to be submitted which was done.
He was referred
to Dr. Gabela who completed the forms and an
orthopaedic surgeon Dr. P Tzvetanov. He was examined on 21
February 2013.
He referred Plaintiff to an occupational
therapist on 31 May 2013 and explained to him that this was for the
second portion of
his claim for past and future loss of earnings.
He required a certificate by his employer, all educational
certificates etc.
The report of the occupational therapist was
finalised on 31 October 2013.
[8]
It was then his intention to refer Plaintiff to a clinical
phycologist and to obtain the services
of an actuary. Plaintiff
refused to go for further medical examination and was adamant that
the claim had to be finalised.
He sent a letter to the RAF on
24 October 2013 claiming only general damages and an undertaking in
respect of medical expenses
annexure “A15”. This
was as a result of the demand of Plaintiff. It was a claim for
general damages only
as he refused to go for further medical
examinations. Plaintiff wanted the matter settled against his
advice. Plaintiff
was informed that if he accepts any offer
then he would not have any future claim for loss of income but he was
adamant that the
matter had to be settled. He stated that he
can make money if he receives this money.
[9]
He signed an affidavit in this regard but unfortunately it has now
been destroyed. Only
some documents could be retrieved form a
miscellaneous file. Both Plaintiff and his wife were very
active when they consulted
with him and asked questions whenever they
whished to do so. When something was explained he would engage
until he understood
it and was satisfied. He came to his office
about three times a month depending on where he stayed whether at
Elands Kop
or Ladysmith. An offer came from the RAF on 11
November 2013 for general damages in the sum of R750 000.00 as
appears
from exhibit “A46” to “A48”. He
contacted Plaintiff to discuss the matter, showed him the offer,
explained the implications thereof and that it was a full and final
settlement and that if he accepts it, it would be the end of
the
matter. He was advised that an action can be instituted and the
matter go to trial as summons had not yet been issued.
He was
however adamant that the offer had to be accepted. All three
pages “A46” – “A48” were
singed by
Plaintiff.
[10]
Plaintiff compelled him to accept the offer. He then followed
Plaintiff’s instructions and accepted
the offer, as appears on
Exhibit “A57”. On 15 November 2013 a breakdown of
the payment and expenses, was handed
to Plaintiff, he accepted it and
received a cheque and signed for it, as appears from exhibit “A58”.
He was given
a copy thereof and of the settlement offer Exhibit
“A46”.
[11]
Defendant’s mandate came to an end when payment was made to
Plaintiff on 15 November 2013. Normally
records are kept for
five years but they were kept longer here until he moved premises and
then destroyed. Plaintiff came
to his offices about one year
after payment had been made and complained about the fees of the
former attorneys. This had
already been sorted out and was
explained to him. He thereafter had no further contact with
Plaintiff until he received the
summons in June 2023.
[12]
It was put to Defendant that he had sufficient documents to submit to
the RAF so as to institute a claim
for loss of income. There
was also the report of the occupational therapist and that there was
no need for the industrial
phycologist at that stage and that he
failed to do so.
[13]
It was put to Defendant that Plaintiff was seriously injured that his
right leg had been amputated and accordingly
there was a claim for
loss of income. Defendant was adamant that Plaintiff refused to
go for medical examinations and instructed
him to accept the offer
against his advice. He wanted a swift finalisation of the
matter which he then did. It was
put to him that he did not do
his job according to the standard which was required of an attorney.
He responded that he did
indeed do his work correctly but that
Plaintiff refused to comply with his advice. The documents for
the loss of income could
not be submitted to the RAF as they had been
incomplete. He knew what documents had to be submitted as he
was previously
employed by the RAF. It was a full and final
settlement. He had last spoken to Plaintiff approximately a
year after
he had received the payments. It was put to him the
claim only arose in 2022 when he went to his present attorneys and
was
advised that he had a claim. In re-examination he confirmed
again that Plaintiff was adamant that he wanted no delay.
It
would have taken one and half to two years if the matter had to go to
trial. The report of the occupational therapist
was only
received from her two weeks before the trial. That was the case
for Defendant.
[14]
Plaintiff testified that he met Defendant on 9 September 2013 and
signed the document Exhibit “A30”
instructing Defendant.
He did not know the previous attorney as they had come to the
hospital. He had never seen
her but one of her employees
came to see him. When he was discharged from hospital he spoke
to his family and they then sought
the services of Defendant.
He had a meeting with Defendant and explained to him the nature of
his injuries and that his right
leg had been amputated. He had
only at a later stage signed documents and completed forms. He
was expecting Defendant
to handle his claim to the end but Defendant
did not do as he expected. Defendant came to his home, informed
him of the amount
from the RAF that he would receive and that was not
what he expected. A year later he was unhappy and went to the
office
of Defendant. He was still not happy with the amount
that had been deducted for the previous attorney. He was also
not satisfied with the amount of R750 000.00 which was paid.
He was informed that he refused to see the medical experts
He
denied that and stated Defendant took him to see doctors in Durban
and Pietermaritzburg. Defendant always went with when
he went
to see a doctor. He expected Defendant to utilise all medical
information in his favour but he did not assist him.
The amount
that he received was too little.
[15]
The letter of undertaking given to him for medical treatment “A60”
he attempted to utilise but
was told he needed to get the original.
He was working before the injury. After he received the money
he discussed
it again with Defendant in 2015. He then went to
Shabalala Attorneys in 2022. He passed standard 8 at school and
he
instructed Shabalala Attorneys as he was dissatisfied. He
testified that it was not correct that he wanted to finalise the
matter quickly and did not want to see the industrial phycologist.
He was prepared to go. He admitted that he received
the cheque
from Defendant. About a year after receiving the cheque during
November 2014. he wanted to enquire amount the
amount received.
It was put to him that he could have gone to the law society if he
was unhappy with the fees and did not
do so. He knew that he
could do so as he had done that when he was unhappy with the fees of
Fatima Karodia, the previous
attorney. He was of the view that
the amount of R750 000.00 was accepted without his instruction.
It was put to
him that in 2014 he knew all the facts if he wanted to
institute a claim against Defendant. He admitted that he knew
in 2014
that he was not satisfied with the amount he received.
That was the case for Plaintiff.
[16]
It was submitted on behalf of Plaintiff that on 9 September 2013 he
signed an appointment letter for Defendant
to deal with the matter.
The offer of R750 000.00 was accepted on 15 November 2013.
He was not happy with the
amount and on 25 October 2022 approached
Shabalala Attorneys to investigate his claim against the RAF.
He was then advised
that he had a claim against Defendant and that is
when the claim was identified. It was submitted that in terms
of the Prescription
Act he had to have knowledge of the debt or
debtor and that it only arose when he was told by Shabalala Attorneys
that he had a
claim against Defendant. It was further submitted
that Defendant should have exercised care as an attorney when dealing
with
this matter. He had to protect the interests of his
client. I was referred to the decision of Le Roux v Johannes
Coetzee
en Seun 2023 (ZACC) 44 at paragraphs 21.3 to 21.5 which deals
with the duties of an attorney. It was further submitted that
the period of prescription only started to run in 2022. In this
regard I was referred to the decision of Sabela v Moroe Flowers
26857/21 GPH.
[17]
Defendant breached his duty when he did not advise Plaintiff
correctly. Defendant had medical and expert
reports which he
could have utilised but that he did not do so. He should not
have accepted the settlement and acted negligently
by accepting the
offer. Plaintiff never refused to go for medical examinations.
There was no reason for him not to
go and no reason for him to
forfeit the loss of earnings claim against the RAF. The one
document that is required, the affidavit
that was referred to, is
missing. Plaintiff denies that he signed the affidavit.
It was submitted that Plaintiff accordingly
made out a case for the
relief claimed.
[18]
It was submitted on behalf of Defendant that in terms of section
12(3) of The Prescription Act Plaintiff
had to have knowledge of the
debtor and by exercising reasonable care should have been able to do
so. He was able to acquire
it if he did not have all the
knowledge in 2014. It was submitted that there was no
allegation that Defendant gave any negligent
advice. The case
against Defendant is that he accepted the offer without the authority
of Plaintiff and abandoned special
damages. It was not that he
advised that there was no claim for special damages. It was
submitted that it was a fact
that Plaintiff accepted the amount of
R750 000.00 for general damages. On Plaintiff’s own
version the facts were
within his knowledge when he accepted the
cheque and had knowledge of the letters which appears at page “A58”
and “A46”
when he was given a copy. It was not
challenged and he was aware that it was only for general damages.
He had constructive
knowledge in 2014 and therefore his claim had
prescribed as the three year period would have ended in 2017.
[19]
Section 12(1)
of The
Prescription Act 68 of 1969
sets out:
“
Subject to the
provisions of subsection (2), (3) and (4) prescription shall commence
to run as soon as the debt is due.”
Subsection
(3) states as follows:
“
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]
In Claasen v Bester
2012 (2) SA 404
(SCA) it was held at 408 D
referring to the decision of Truter and Another v Deysel
[2006] ZASCA 16
;
2006 (4) SA
168
(SCA) paragraph 20:
“
Section 12(3)
of
the Act requires knowledge only of the material facts from which the
debt arises for the prescriptive period to be in running.
It
does not require knowledge of the relevant legal conclusions (i.e.
that the known facts constitute negligence) or of the existence
of an
expert opinion which supports such conclusions.”
It
then at 408 G carries on and states:
“
These cases
clearly do not leave open the question posed and not answered in Van
Staden. They make it abundantly clear that
knowledge of legal
conclusions is not required before prescription begins to run.
There is no reason to distinguish delictual
claims from others.
The principals laid down have been applied in several cases in this
court including most recently in
Yellow Star Properties 1020 Pty
(Ltd) v MEC Department of Development Planning and Local Government
Gauteng
2009 (3) SA 577
(SCA) paragraph 37 where Leach AJA said that
if the applicant had not appreciated the legal consequences which
flowed from the
facts its failure to do so did not delay the running
of prescription.”
[21]
The issue of prescription which was raised by the special plea has to
be considered on the facts of the present
case. It is apparent
from the evidence that when the cheque was presented to Plaintiff in
2013 he accepted it and signed
for it. On his own evidence a
year later because he was unhappy with the payment he went back to
Defendant to discuss the
matter with him. It was at the best
for Plaintiff at the end of 2014. Thereafter Plaintiff did
nothing until 2022.
Thus for a period of approximately at least
seven to eight years.
[22]
When he went to see Defendant he was thus well aware who the debtor
was as he had been dealing with Defendant,
received payment from
Defendant who did everything on his behalf. He was thus aware
that if there was any irregularity or
any fact with which he was not
satisfied he had to take action against Defendant who was the
debtor. Further the facts which
gave rise to the debt was also
known to him as he was well aware that the facts were the payment
that was made by the RAF.
His evidence was that due to the
injuries he sustained it was not sufficient and he was not satisfied
therewith. If he was
not satisfied therewith he had knowledge
of who the debtor was and the facts giving rise to the debt and one
would have expected
him to then take action against Defendant to
ensure that the actions of Defendant are at least investigated or
instituted a claim
against Defendant.
[23]
This he did not do, although he had knowledge thereof as he
previously when he was not satisfied with the
amount paid to his
previous attorney, he took the matter up with The KwaZulu-Natal Law
Society when it was decided against him.
It is therefore
difficult to understand why, having all this knowledge, Plaintiff did
nothing until 2022 when he approached an
attorney and then instituted
an action against Defendant. Plaintiff had all the knowledge to
institute an action against
Defendant as soon as he had spoken to
Defendant at the best for him at the end of 2014. If he did not
have such knowledge
he could have acquired it by exercising
reasonable care. As set out in Classen’s case above he
did not have to have
knowledge of the legal consequences. The
claim against Defendant therefore became prescribed at the end of
2017/2018.
[24]
The other issue which due to the conclusion which I have reached
above is no longer of importance is that
of liability. From the
evidence of Plaintiff on his own admission he was not shy, he asked
questions, he sought answers from
Defendant and signed for the amount
of the claim which was paid out to him. It appears improbable
that if Plaintiff was so
dissatisfied with the amount paid out to him
as he testified that he would do nothing about it for a period of
about eight years.
He did nothing further after returning to
Defendant one year after receiving the payment.
[25]
The evidence of Defendant was straight forward. His demeanour
was good and his evidence was not improbable.
He made it clear
during his evidence that at all times Plaintiff wanted money as soon
as possible. That he did and it was
then paid to him. If
Defendant wanted to only claim general damages it appears to be
improbable that he would have gone to
the expense of obtaining the
reports which he did. That would not have been necessary for
general damages. His evidence
of the events are therefore
accepted.
[26]
Plaintiff’s version, in my view, is improbable and it appears
that at the time he accepted the offer
as he wanted the money but in
later years decided that he wanted more and was of the view that he
could then obtain more.
However it was no longer possible as
the claim was settled on general damages only and a medical
certificate in full and final
settlement.
Order
(a)
Plaintiff’s claim against Defendant has
prescribed.
(b)
Plaintiff’s claim against Defendant is
dismissed with costs.
P
C BEZUIDENHOUT J.
JUDGMENT
RESERVED ON:
14
OCTOBER 2025
JUDGMENT
HANDED DOWN ON:
29
OCTOBER 2025
COUNSEL
FOR PLAINTIFF:
P
D NYEMBE
Instructed
by:
T
Shabala Inc Attorneys
Ladysmith
c/o:
T Shabalala Inc Attorneys
Pietermaritzburg
Tel:
039 976 1089/71
Cell:
078 3375 842
Email:
info@shabalalainc.co.za
Ref:
S GCINISA/MVA-2021/PMB-HC/ST MNCWABE/11223
COUNSEL
FOR DEFENDANT:
D
P CRAMPTON
Instructed
by: A TMD Attorneys
Pietermaritzburg
Email:
info@atmd.co.za
Ref:
ATM/Claudette/M00004925