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[2026] ZAKZDHC 46
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Ramballi v RK Nathallal and Company (13011/2010) [2026] ZAKZDHC 46 (18 August 2026)
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FLYNOTES:
CIVIL PROCEDURE – Prescription –
Claim
against attorney
–
Attorney
mandated to prosecute minor’s RAF claim – Claim
allowed to lapse while attorney continued representing
matter as
pending – Creditor lacking legal expertise and relying on
attorney’s advice – Knowledge of professional
negligence acquired only after consulting new attorneys –
Limited exception permitting legal conclusion to form part
of
minimum facts – Defendant failing to prove earlier actual or
deemed knowledge – Special plea dismissed –
Attorney
liable for proven damages –
Prescription Act 68 of 1969
,
s
12.
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL
LOCAL DIVISION, DURBAN
Case
no: 13011/2010
In
the matter between:
DEAN
RAMBALLI
PLAINTIFF
and
RK NATHALLAL AND
COMPANY
DEFENDANT
Delivered electronically:
This judgment is deemed to be handed down electronically on 18 August
2026 at 11h30 by circulation to
the parties’ representatives
via email.
ORDER
The
following order is issued:
1. The
defendant’s special plea of prescription is dismissed.
2. The
defendant is liable to compensate the plaintiff all his proven
damages. The issue of quantum is held over
for later determination.
3. The
defendant is ordered to pay the plaintiff’s costs on scale B.
JUDGMENT
HLATSHWAYO
J
Introduction
[1]
The plaintiff instituted an action against the defendant seeking
damages
arising out of the alleged professional negligence. The
defendant is a firm of attorneys with its practice situated around
Verulam,
Kwa Zulu-Natal. The plaintiff was a passenger in a motor
vehicle that was involved in a collision on 18 March 1995 and as a
result
sustained injuries. He was accordingly entitled to pursue a
claim for compensation against the then Multilateral Motor Vehicle
Accidents Fund (MVA) which was later replaced by the Road Accident
Fund (RAF).
[2]
The plaintiff was a minor at the time of the accident and was at all
times
represented by his father, Mr Harrinarain Ramballi (Mr
Ramballi). During May 1996 Mr Ramballi gave a mandate to the
defendant to
pursue a claim against the RAF on behalf of the
plaintiff. The defendant collated the necessary information and
proceeded to lodge
the claim with the RAF on 3 March 1997. The
plaintiff alleges that the defendant allowed his claim against the
RAF to be extinguished
by the effluxion of time in terms the
Prescription Act 68 of 1969 (the
Prescription Act).
[3
]
It is also common cause that the plaintiff reached the age of
maturity on
18 March 2003 and he subsequently issued summons in his
name against the defendant in this matter on 4 November 2010. The
defendant
denied any liability and amongst the defences raised by the
defendant is that the plaintiff’s action against it has
prescribed
in terms of Chapter III of the
Prescription Act. At
the
commencement of the trial, both parties agreed that the court should
deal with the issues of prescription and liability only,
with quantum
to stand over for later determination. As part of this agreement, I
was asked to consider paragraphs 9 to 12 of the
particulars of claim,
paragraph 10 to 11 of the plea and paragraphs 4 to 14 of the
replication dealing with the issue of liability.
In addition, I was
called upon to focus on paragraphs 1 to 5 of the plea and the
plaintiff’s replication on pages 22 to 26
when considering the
special plea of prescription.
[4]
During the trial the plaintiff led the evidence of his father, Mr
Ramballi
and the defendant closed its case without calling any
witnesses.
Summary
of evidence
[5]
Mr Ramballi testified that he is a retired plumber who was employed
by
the eThekwini municipality. Around March 1995 he was travelling
with his son, Dean Ramballi (the plaintiff) in Ottawa, Verulam.
The
traffic light was green in his favour; however, another motor vehicle
collided with his van. As a result of the collision,
the plaintiff
was flung out of the car and fell with his head on the tarmac. Both
were immediately rushed to City Hospital in Durban
and the medical
staff informed him that the left side of the plaintiff’s brain
had slight damage.
[6]
He thereafter approached
an attorney, Mr RK Nathallal around May 1996 in order to assist him
with the claim against the RAF. He
was attended to by another
attorney at the firm, Mr Raghavjee who assured him that he will
attend to the claim. Mr Ramballi duly
paid a deposit of R1 500. The
claim was subsequently lodged with the RAF sometime in March 1997.
There were various communications
between him and his legal
representatives regarding this matter. Some of those interactions are
captured in letters written to
the plaintiff requesting further
information
[1]
and some were as
a result of physical interactions with his lawyer. Due to his work as
a plumber who was based in Verulam, Mr Ramballi
frequently visited
the offices of the defendant to deliver the requested documents and
to make inquiries regarding the status of
the claim. As a result of
the defendant’s letter dated 18 December 2000
[2]
detailing queries from the RAF, he together with the plaintiff
visited Addington Hospital for an examination to assess the damage
to
the plaintiff’s head. He received a report which he handed over
to his attorney.
[3]
[7]
Mr Ramballi continued
with regular visits to his attorney making inquiries. As a lay person
he knew nothing about prescription.
Whilst he knew the claim amount
sought from the Fund was the sum of R400 000 he did not know if
it was a good or bad claim
amount. Mr Ramballi was dissatisfied with
the delays in the plaintiff’s matter. He penned a letter dated
12 March 2008 to
the defendant expressing his dissatisfaction and
demanded his attorney provide what he referred to as a “seriatim
report”
on the RAF claim.
[4]
At the same time, he delivered a letter to the RAF requesting
information about this matter and the RAF response was that they
could not locate his claim.
[8]
On 12 June 2008, Mr
Ramballi sought the assistance of the KwaZulu-Natal Law Society (the
Law Society) in order to get a response
from the defendant and to
expediate the claim. Following its interaction with the defendant,
the Law Society informed him that
Mr Raghavjee of the defendant still
wished to continue with the matter and Mr Ramballi agreed that the
defendant must continue
in order to settle the claim. Subsequently
thereafter Mr Ramballi filed another complaint with the Law Society.
As part of the
allegations against the defendant was that from
inception the defendant had used evasive techniques to keep him
uninformed of the
matter and has delayed the matter for 15 years. He
had expected that the matter would take one year to be finalised. The
defendant’s
response to the Law Society was that the matter was
still pending, summons were issued and the matter is dealt with by a
stated
case.
[5]
At this
juncture, Mr Ramballi had approached another attorney, Mr Gowans to
assist him. As a result of the advice received,
the plaintiff
issued summons against the defendant alleging inter alia that the
defendant allowed his claim to prescribe.
[9]
Under cross-examination Mr Ramballi conceded that his interaction
with
the defendant occurred around 30 years ago and there are certain
things he does not remember. However, the defendant informed him
sometime in December 2000 that there was an issue of outstanding
medical evidence in support of the claim but denied having been
told
of prescription. He also conceded that the last report received by
him from the defendant was towards the end of 2001.
[10]
He further testified that in April 2004, the plaintiff was involved
in another accident
where he suffered what is commonly referred to as
whiplash injuries. A RAF claim was subsequently lodged and that claim
only took
one year to be finalised. The plaintiff thereafter closed
his case and as alluded to above there were no witnesses called by
the
defendant.
Submissions
[11]
The plaintiff submitted that the defendant bears the onus to
establish that the plaintiff’s
action has prescribed but the
plaintiff bears the evidential burden regarding the allegations that
the defendant wilfully prevented
the plaintiff from gaining knowledge
of the existence of the debt.
On the question of
liability, the plaintiff bears the onus.
[12]
It was submitted that the undisputed evidence of
Mr. Ramballi demonstrated that a mandate had been given to the
defendant which
mandate the defendant was duty bound to exercise with
skill, knowledge and diligence expected of a reasonable attorney.
Despite
the plaintiff sustaining a fractured skull and severe brain
injury, the defendant failed to obtain the necessary expert medical
legal reports. The defendant also issued summons against the RAF on
16 March 2001 in the Inanda Magistrates’ Court but failed
to
take any further steps to pursue that action. In addition, he caused
the plaintiff’s claim to lapse.
[13]
Dissatisfied
with how the matter was being dealt with, the plaintiff filed a
complaint with the Law Society. The defendant's response
to the Law
Society on 17 June 2008 was that the matter was still proceeding and
was still willing to finalise the claim. Further,
the communications
between the defendant and the Law Society as late as 22 September
2010 represented that the matter is dealt
with by a stated case at
Inanda Magistrates’ Court held at Verulam. It was contended
that if one accepts that the claim had
prescribed on dates as alleged
by the defendant,
[6]
the
defendant’s communications in particular in September 2010 to
the Law Society is decisive in determining the issue of
liability and
prescription. As at this date, the defendant represented that the
claim was still alive and being dealt with by a
stated case.
[14]
I
t was argued that Mr. Ramballi is a lay person
who had no knowledge about prescription law and the quantum of the
claim. The only
time he became aware of prescription, and the nature
and extent of the claim against the defendant was when he consulted
with another
law firm, Gowans and Paton in 2010. It is at this stage
that he acquired a complete cause of action and the entire set of
facts
which he needed to prove. Consequently, the plaintiff knew
or reasonably ought to have known that the RAF
claim was unsuccessful when he became aware of the facts of a matter
when he consulted
Gowan's and Paton.
[15]
It was submitted that the interaction with the Law
Society reaffirms the fact that the plaintiff did not have actual
constructive
knowledge that the claim had prescribed. Mr. Naidoo, for
the plaintiff was critical of the defendant’s failure to call
witnesses
to deal with when the plaintiff gained knowledge of facts.
He argued that the court has not been favoured with the defendant’s
version regarding when the debt became due and when the plaintiff had
actual knowledge of the relevant facts. Accordingly, an adverse
inference must be drawn from the defendant’s failure to lead
evidence.
[16]
The defendant on the other hand submitted that in
line with its plea the claim has been extinguished by prescription in
terms of
Chapter III of the
Prescription Act. Reliance
was placed on
the plaintiff’s reply to its plea of prescription to the effect
that the defendant did not keep the plaintiff
informed or provide
progress reports. In that reply the plaintiff stated that the
defendant is estopped from raising prescription
in terms of
ss 12(1)
and
12
(3) of the
Prescription Act because
the defendant willfully
prevented the plaintiff from becoming aware of the existence of the
debt.
[17]
The
defendant drew my attention to the evidence of Mr. Ramballi that he
consulted Mr. Raghavjee of the defendant towards the end
of 2001 and
was advised that the RAF contended that medical reports which had
been submitted did not establish a nexus and no further
information
about the claim was received after that. Mr. Goddard, for the
defendant, argued that objectively, Mr. Ramballi knew
all the facts
which gave rise to the complaint that the defendant did not keep him
informed or provide progress reports when the
defendant failed to
provide further information about the claim after the end of 2001.
Mr. Ramballi's evidence was that he visited
the defendant’s
office on a monthly basis making inquiries about the claim. The
failure to respond to the inquiries or provide
information complained
of reasonably or objectively means that he knew or could by the
exercise of reasonable care have known that
something
was wrong occurred
[7]
.
Reliance
was placed on
Gunase
v Anirudh
[8]
where the court held that A creditor is not allowed to postpone the
commencement of the running of prescription by his failure
to take
necessary steps.
Section 12(3)
imposes a duty to exercise reasonable
care to obtain knowledge of the identity of the debtor and facts from
which the debt arises.
[18]
Furthermore the plaintiff subjectively knew around
2004 that the plaintiff’s second RAF claim had taken a year to
be finalised.
The plaintiff attained the age of majority on 18 March
2003. It was argued that a reasonable person with the above knowledge
would
definitely have known that something was wrong in this matter
and as per Mr. Ramballi’s evidence, the defendant’s
failure
to provide information lasted for a decade and three years.
Accordingly, the identity of the debtor and facts from which the debt
claimed arises were thus objectively known or could have been
acquired by exercising reasonable care more than three years before
the action was instituted.
Discussion
[19]
Although
the parties agreed at a
Rule 37
conference that liability and
prescription were to be defined and adjudicated upon by the court in
accordance with the specified
paragraphs in the pleadings, the focus
of the parties in this matter was largely on the question of whether
the claim had prescribed
and there was limited evidence, if any, on
the question of liability. The main issue that must be determined is
whether the plaintiff’s
claim had prescribed three years prior
to the institution of legal proceedings. According to the defendant,
the plaintiff’s
claim prescribed either in December 2004,
alternatively March 2007, alternatively on or before 3 November
2007
[9]
. It is common cause that
summons in this matter were served on the defendant on 4 November
2010.
[20]
There is also no dispute that the defendant bears the overall onus in
respect of prescription.
The defendant must show that prescription
began to run three years before at least 4 November 2010. However,
the plaintiff bears
an evidential burden when it comes to allegations
that the defendant willfully prevented him from knowing the existence
of the
debt. When it comes to the issue of liability, the onus of
proof lies with the plaintiff.
Prescription
[21]
The applicable law relevant to the defendant’s plea of
prescription is ss
12(1)
, (2) and (3) of the
Prescription Act which
read:
‘
(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
willfully 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.’
(My
emphasis.)
[22]
The
purpose of
s 12
of the
Prescription Act was
aptly explained by Zondo
J in
Links
v Department of Health, Northern Province
[10]
as
follows:
‘
The
provisions of
s 12
seek to strike a fair balance between, on the one
hand, the need for a cutoff point beyond which a person who has a
claim to pursue
against another may not do so after the lapse of a
certain period of time if he or she has failed to act diligently,
and, on the
other, the need to ensure fairness in those
cases in which a rigid application of prescription legislation would
result
in injustice. As already stated, in interpreting
s 12(3)
the
injunction in s 39(2) of the Constitution must be borne in mind. In
this matter the focus is on the right entrenched in s 34
of the
Constitution.’
[23]
On the question of when does the debt become due, the answer is when
a party acquires knowledge
of the complete cause of action. In
Truter
and Another v Deysel
[11]
the Supreme Court of Appeal (the SCA) defined the term ‘debt
due’ as follows:
‘…
For
the purposes of the Act, the term “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
.’
(My emphasis.) (Footnote omitted.)
[24]
I intend to briefly deal with
whether the
defendant willfully prevented the plaintiff from coming to know of
the existence of the debt and thus estopped from
raising
prescription. I agree with the defendant that the plaintiff failed to
set out particulars of the alleged prevention or
material facts upon
which he relies on order to sustain this submission. It is
impermissible for the plaintiff to simply restate
the law without
setting out material facts to support it. Accordingly, the
plaintiff’s submission in this regard is unsustainable.
[25]
When it comes to
s 12(3)
of the
Prescription Act it
is clear that it
envisages actual and deemed knowledge of the facts giving rise to the
cause of action. Actual knowledge relates
to the subjective knowledge
of facts by the creditor and deemed knowledge is when by exercising
reasonable care, the creditor could
have gained knowledge of facts.
It is the latter requirement relied upon in the main by the defendant
in this matter. Generally
this poses a significant challenge in
determining when does a creditor have the necessary knowledge of
facts from which the debt
arises particularly when it comes to claims
against professionals for negligence. The position in our law was
extensively discussed
by the Constitutional Court in
Le
Roux and Another v Johannes G Coetzee and Seuns and Another
[12]
where
the
following was said:
‘
In instances
involving claims against professionals based on negligence , a
creditor may have knowledge of facts but may,
due to a lack of expert
knowledge, be unable to discern from those facts that something wrong
has occurred. Those facts may well
objectively constitute the
necessary facts to institute an action seen from the perspective of
someone knowledgeable in the field
(for example, medicine,
engineering or auditing). However, to a creditor who lacks such
expertise, they may not say the same thing.
It would be harsh in
those situations to say that the creditor has knowledge of the facts
from which the debt arises
.’
The
Constitutional Court went on to endorse its earlier decision in
Links
which
dealt with medical negligence where the following was said:
[13]
‘
It
seems
to me that it would be unrealistic for the law to expect a litigant
who has no knowledge of medicine to have knowledge of
what caused his
condition without having first had an opportunity of consulting a
relevant medical professional or specialist for
advice. That in turn
requires that the litigant is in possession of sufficient facts to
cause a reasonable person to suspect that
something has gone wrong
and to seek advice
.’
(Footnote omitted.)
[26]
When
it comes to the allegations of professional negligence by a legal
practitioner, the Constitutional Court in
Le
Roux
recognised
that the situation is complicated by the distinction between primary
facts and legal conclusions. Legal conclusions are
the consequences
assigned to events and by their nature are generally not facts upon
which the cause of action arises.
A
‘general rule has emerged that legal conclusions do not
constitute facts’, and ‘knowledge of such legal
conclusions
is not required by a creditor for purposes of
s
12(3)
’.
[14]
The
Constitutional Court, however, concluded that:
[15]
‘…
if
a legal conclusion is the only way a creditor can obtain knowledge
that incorrect legal advice was given or a mandate not professionally
discharged, does this constitute knowledge of a fact that
s
12(3)
contemplates or knowledge of a legal conclusion? That legal
conclusion may be essential to completing the spectrum of the minimum
facts from which the debt arises and of which the creditor is
required to have knowledge. Put differently, it may be that,
but for the legal conclusion, a creditor would not have knowledge of
the “facts” from which the debt arises. …’
[27]
Mr. Goddard argued that the plaintiff’s pleaded case in this
matter is that the defendant
did not keep the plaintiff ‘informed’
or ‘provide progress’ reports resulting in Mr. Ramballi
lodging a
complaint with the Law Society in order to obtain a
feedback on the matter. Consequently, based on the plaintiff’s
plea it
was the defendant’s failure to answer inquiries or
provide information which led him to find out that ‘something
wrong
had occurred’ as contemplated in
Le Roux
. It was
submitted that the plaintiff found out something wrong occurred at
the end of 2021 when the defendant failed to provide
further
information.
[28]
Whilst the plaintiff pleaded the defendant's failure to provide Mr.
Ramballi with progress reports
as one of his complaints, this is not
the only basis of the plaintiff’s case. As part of the
plaintiff’s plea is his
averments that he became aware of the
identity and the nature and the quantum of his claim when he
consulted with his former attorneys
of record Gowans and Paton
shortly before summons was issued. He also alleged that the defendant
did not inform him that it failed
to properly quantify his RAF claim
or to prosecute it timelessly, allowed it to lapse and failed to
institute an action in a court
having jurisdiction to satisfy the
plaintiff’s claim.
[29]
It must be borne in mind that a creditor in the position of the
plaintiff is required to possess
knowledge of necessary primary
facts, if proved, would sustain his cause of action. Other ancillary
facts not forming part of the
cause of action and not necessary to
prove the plaintiff’s claim or supporting a right to judgment,
are not facts from which
a debt is due for purposes of
s 12.
In
Truter
the
SCA having explained the meaning of ‘debt due’ quoted
with approval the following definition of a cause of action:
[16]
‘“
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.
(Emphasis added.).”’
[30]
The plaintiff’s cause of action includes the averments that the
defendant failed to prosecute
the plaintiff’s RAF claimed
timelessly, allowed it to lapse, failed to properly quantify the
claim and failed to inform the
plaintiff of the above failures. If
these allegations are established, they would entitle the plaintiff
to judgment.
[31]
Nonetheless there is no substance to the defendant’s submission
that the plaintiff ought
to have known that something wrong occurred
in 2001 when the defendant failed to provide progress reports. The
events that subsequently
took place militate against such a
conclusion. I shall below touch on these events that undoubtedly show
that the plaintiff, and
strangely the defendant for that matter,
believed that his claim was still pending.
[32]
The defendant relied on
Gunase
v Anirudh
[17]
to
contend that by exercise of reasonable care Mr. Ramballi ought to
have known that something was wrong in the plaintiff’s
case.
Reference was made to another accident involving the plaintiff that
was settled by RAF within one year. The facts in
Gunase
are
distinguishable to this matter. In
Gunase
the
attorney who represented the plaintiff had closed his office and this
fact was central to the court’s finding that the
plaintiff
therein, by exercise of reasonable care, ought to have known that his
claim was not lodged. In this matter there could
be no question of
anything wrong occurring in the mind of the plaintiff by 2001 in
relation to the cause of action. Summons had
been issued by the
defendant on this date and reference to another claim that was
settled quickly fails to recognise that each
claim has its own
dynamics and that the unique facts of a particular matter may lead to
long delays.
[33]
It is apposite to mention that Mr. Ramballi was 74
years old when he testified and the events he testified about
occurred some 30
years ago. He thus could not remember some of the
events. In this matter there were unexplained events for the periods
between
2001 to 2008. The validity of the summons issued by the
defendant is itself questionable in light of the former
Rule 10
of
the Magistrate’s Court Rules which deems the summons to have
lapsed if no further step is taken after a year. A definite
finding
on this issue is complicated by, on one hand the defendant’s
admission that no further steps were taken after the
said summons
were issued in 2021 and on the other, its own conflicting version
that the matter was pending and was due to be set
down for hearing a
stated case in 2010. However, the defendant bears the onus to show
when the plaintiff gained or ought to have
gained knowledge of the
facts. I am inclined to agree with the plaintiff that the defendant’s
failure to call any witnesses
must attract an adverse inference
regarding the issue of when the plaintiff gained knowledge of the
facts. This is particularly
so because the defendant is the party
that possesses all the evidence in its file regarding its dealings
with Mr. Ramballi.
[34]
Nevertheless in this matter Mr. Ramballi testified
that he wrote a letter to the defendant on 12 March 2008 demanding a
report about
the status of the plaintiff’s claim. When he
received no joy from the defendant’s office, he approached the
Law Society.
Importantly in this letter he recorded an earlier
interaction with the defendant where the defendant revealed to him
that the case
was still pending. Consistent with the pending status
of the matter, the defendant’s reply to the Law Society
suggested that
the defendant was still willing to assist the
plaintiff in dealing with the matter. The defendant's affidavit to
the Law Society
maintains the same theme that the plaintiff's claim
was still alive, and summons were issued against the RAF. The
plaintiff’s
letter to the Law Society dated 17 June 2008
unequivocally demonstrates that he believed the defendant’s
allegations that
summons had been issued, and the matter was still
pending. As late as 22 September 2010, the defendant was still
advising the plaintiff
that his case was pending before court and was
being dealt with by way of a stated case. As pointed out above, these
events militate
against a finding that the plaintiff ought to have
known the facts giving rise to the cause of action after the last
progress report
in 2001.
[35]
Mr
Ramballi testified that he approached his former lawyers, Gowans and
Paton, who subsequently issued summons in this matter in
November
2010 against the defendant. The plaintiff case is that he became
aware of the identity and the nature of the claim when
he consulted
with his lawyers Gowans and Paton. It is clear that plaintiff
would have gained knowledge of facts necessary
to sustain his course
of action when he was informed accordingly by his lawyers that the
defendant allowed his claim against RAF
to lapse, did not properly
quantify the damages, did not proceed to the court with jurisdiction
to satisfy his claim and that he
did not inform the plaintiff his
failure to execute the mandate. Whilst these facts received from his
lawyer which culminated in
this action may also be regarded as legal
conclusions, I am of the view that this is such a case where a
limited exception to the
rule as espoused in
Le
Roux
applies.
The said exception was stated as follows:
[18]
‘
In such instances,
a limited exception to the rule is necessary and appropriate. The
exception being: for the purposes of
section 12(3)
of
the
Prescription
Act, in
professional
negligence claims against legal practitioners, the facts from which
the debt arises may include a legal conclusion,
where that legal
conclusion forms part of the cause of action or minimum facts in
order to pursue the claim. This view is
advanced on three
grounds: (a) the application of the general rule may result in an
injustice; (b) an exception for negligence
claims against legal
practitioners would accord with our jurisprudence relating to other
professions; and (c) the exception is
limited in scope.’
[36]
It would be unrealistic and unjust to expect a lay
person in the position of Mr. Ramballi who sought the services of the
defendant
as a legal practitioner and relied on the correctness of
his advice that summons were issued against the RAF and the claim was
still pending to independently test the correctness of that advice or
determine whether the mandate was properly performed. As late
as
September 2010 the defendant was still advising the plaintiff through
the Law Society that his claim was still proceeding. On
the facts
before me the only way the plaintiff could reasonably find out, as he
did, that his claim was allowed to lapse and also
that he was not
informed that his mandate was not carried out properly is when he
consulted with his lawyer, Mr. Gowans before
summons were issued in
this matter.
[37]
I am satisfied that the defendant failed to discharge the onus
resting upon it to show that plaintiff’s
claim against it has
prescribed as contemplated by the
Prescription Act and
the special
plea of prescription must be dismissed.
Liability
[38]
As regards the question of liability, it must be
stated that both parties placed before the court the issue of
prescription and
liability and persisted with the hearing on both
issues at the commencement of the trial. When the trial commenced,
there was little,
if any evidence led to the issue of liability. This
approach by both parties is somewhat puzzling particularly in light
of their
eagerness to place both issues before court. That being so,
the plaintiff asked the court to consider the evidence of Mr.
Ramballi,
and the documents filed on record in order to conclude that
a case has been made out on liability. The defendant argued that
there
is no evidence justifying a finding on liability.
[39]
T
he evidence and documents filed on record show
that Mr. Ramballi requested the defendant to assist him with the RAF
claim in 1996
and made payment of the requested deposit. The
defendant subsequently proceeded to lodge the claim and went on to
issue summons
against the RAF in the Inanda Magistrates’ Court.
I am satisfied that a mandate had been given and accepted by the
defendant
to prosecute the plaintiff’s claim to its finality
including issuing summons and prosecuting the action against the RAF
where
necessary.
[40]
Amongst the averments made by the plaintiff is
that the defendant breached the mandate and was negligent in allowing
the plaintiff’s
claim against the RAF to prescribe, failed to
properly quantify the plaintiff’s claim, and issued summons out
of a court
with limited jurisdiction when the defendant should have
obtained relevant medical reports in order to pursue action in the
appropriate
court that would satisfy the plaintiff‘s claim.
Despite these specific allegations, the plaintiff failed to lead
evidence
to support them.
[41]
Regardless of the above, it is clear from the
evidence that the defendant did not act with due diligence, skill and
knowledge expected
of an ordinary attorney. Having issued summons in
2021 the defendant failed to prosecute this action to its finality.
Furthermore,
regard being heard to the defendant’s own version
that no further steps were taken after summons were issued in 2001
and
that the plaintiff’s claim prescribed the very least in
November 2007, a finding that the defendant was negligent by allowing
the plaintiff’s claim to prescribe is inescapable. The
defendant failed to give evidence to explain the obvious failure to
prosecute the action diligently and allowed the plaintiff’s
claim to prescribe. Whilst an adverse inference for this failure
is
warranted, but based on the evidence A finding must be made against
the defendant that it acted negligently, and in breach of
its
mandate.
[42]
The duties of an attorney in executing a mandate of his client are
trite. I can do no better
than to refer to the following passage that
was quoted in
Ramonyai
v L P Molope Attorneys
:
[19]
‘“
Professional
negligence is the failure by an attorney to act with the competence
reasonably expected of ordinary members of the
attorney’s
profession. An attorney must be meticulous, accountable, … He
or she must serve his client faithfully and
diligently and must not
be guilty of any unnecessary delay. He or she must once he or she has
undertaken the client’s case,
not abandon it without lawful
reason or excuse. An attorney who fails to explain his or her precise
instructions and lays possum
invites an adverse inference against him
or herself. Where a client’s claim prescribes under his or her
watch, he or she
is guilty of a breach of his or her mandate and duty
to his or her client by his or her failure to present countervailing
evidence
that his or her mandate and instructions were circumscribed
and not open ended.”’
[43]
When the defendant accepted the mandate, it held itself out as
possessing the necessary skills
to discharge the mandate diligently.
I am satisfied that the plaintiff has established, on the balance of
probabilities, that the
defendant acted negligently in discharging
the mandate and is liable to the plaintiff for damages he may so
prove.
Order
[44]
In the circumstances the following order is made:
1. The
defendant’s special plea of prescription is dismissed.
2. The
defendant is liable to compensate the plaintiff all his proven
damages. The issue of quantum is held over
for later determination.
3. The
defendant is ordered to pay the plaintiff’s costs on scale B.
HLATSHWAYO
J
Appearances
Counsel
for the plaintiff:
Adv
VM Naidoo SC
Instructed
by:
Dwarika
Naidoo & Company
3
rd
Floor, Tower B, 8 Torsvale Crescent
Umhlanga
Phone:
0313064809
Counsel
for the defendant:
Adv G
Goddard SC
Instructed
by:
Roberts
House
5
Nollsworth Crescent
La
Lucia Office Estate
Phone:
0870560106
Date
of Hearing:
17
February 2026
Date
Judgment Delivered:
18
August 2026
[1]
Exhibit
“A” at 1-8.
[2]
Ibid
at 6.
[3]
Ibid
at 39
[4]
Ibid
at 9.
[5]
Exhibit
“A” at 43.
[6]
Rule
37
minute paragraph 16.
[7]
Le
Roux and Another v Johannes G Coetzee and Seuns and Another
2023] ZACC 46
;
2024
(4) SA 1
(CC) para 50.
[8]
Gunase
v Anirudh
[2011]
ZASCA 231; 2012 (2) SA 398 (SCA).
[9]
Rule 37
minute paragraph 16
[10]
Links
v Department of Health, Northern Province
[2016]
ZACC 10
;
2016
(4) SA 414
(CC) (
Links
)
para 26.
[11]
Truter
and Another v Deysel
[2006]
ZASCA 16
;
2006
(4) SA 168
(SCA)
(
Truter
)
para 16.
[12]
Le
Roux and Another v Johannes G Coetzee and Seuns and Another
2023] ZACC 46
;
2024
(4) SA 1
(CC) (
Le
Roux
)
para 50.
[13]
Ibid para 51.
[14]
Ibid para 43.
[15]
Ibid para 66.
[16]
Truter
para
17.
[17]
Ibid
[18]
Le
Roux
para
79.
[19]
Ramonyai
v L P Molope Attorneys
[2014]
ZAGPJHC 65 para 16.