Harold Gunase v Ramesh Anirudh(826/10) 
ZASCA 231 (30 November 2011)
The facts which gave rise to the claim may briefly be summarised
The plaintiff, Ramesh Anirudh (Anirudh) was involved in a motor
vehicle accident in July 1992 and, in October 1993, instructed his
attorney, the defendant, Harold Gunase (Gunase) to institute a
third party claim on his behalf in terms of the Multilateral Motor
Vehicle Accident Fund Act, 93 of 1989.
He apparently visited Gunase on a monthly basis to follow up on
his claim, but at some stage found that Gunase's offices had
been closed and that he had moved to other premises. The offices at
the new premises were also found to be closed. In 2000 Gunase's
practice was closed down and Anirudh became aware of that fact in
During the period 2000 to 2004 Anirudh made no attempt to go to
Gunase's offices or contact any other person (or attorney) for
assistance. In April 2005 he consulted with a new attorney who
established in January 2006 that no claim had been lodged with the
Road Accident Fund. Anirudh's new attorney eventually
instituted action against Gunase's professional indemnity
insurers in October 2008.
The trial court found that Anirudh's claim had not
prescribed as the earliest he could have been in a position
"... where he had every fact necessary for him to prove and
support him ..." was in January 2012.
The court did not criticise the trial judge's statement
relating to Anirudh requiring knowledge of "every fact
necessary" to allow him to institute his claim but in our
respectful submission this statement is incorrect. Once a creditor
knows, or could reasonably have known, the minimum facts from which
the debt arises, prescription begins to run. These facts do not
include the conclusions (legal or otherwise), to be drawn from
The SCA considered the wording of Section 12(3) of the
Prescription Act, 68 of 1969 (the Act) which stipulates that:
"A debt shall not be deemed to be due until the creditor has
knowledge of the identity of the debtor and the facts from which
the debt arises, that a creditor shall be deemed to have such
knowledge if he could have acquired it by exercising reasonable
care" (our emphasis).
The impact of Section 12(1) read in conjunction with Section
12(3) is that prescription starts to run as soon as the creditor
has, or ought to have, knowledge of the identity of the debtor and
the facts from which the debt arises.
With reference to prior case law2 the SCA noted that a creditor
cannot "by supine inaction arbitrarily and at will"
postpone the commencement of prescription. It has been said that a
creditor shall be deemed to have the acquired knowledge "if he
could have acquired it by exercising reasonable care", which
requirement requires diligence not only in the ascertaining of the
facts underlying the debt, but also in relation to the evaluation
and significance of those facts.
The creditor is therefore deemed to have the requisite knowledge
if a reasonable person in his or her position would have deduced
the identity of the debtor and the facts from which the debt
arises. The test to be applied is an objective rather than a
subjective test and the creditor's conduct should be tested by
reference to the steps which a reasonable person in his or her
position would have taken to acquire knowledge of the facts.
In this matter Anirudh's conduct was criticised by the SCA
and the court held that in applying an objective standard, Anirudh
failed to exercise the reasonable care required by Section 12(3) of
the Prescription Act. He could have gained knowledge of the facts
from which his claim arose during 2001, if he had exercised
Therefore, the SCA held that the evidence revealed that
Anirudh's failure to institute action timeously was caused by
his inaction and not inability to obtain knowledge of the relevant
facts timeously. According to the SCA the trial judge did fail to
consider the import of Section 12(3) of the Act and upheld
Gunase's special plea of prescription.
1 Minister of Finance & others v Gore NO 2007 (1) SA
(SCA) par 17 referring with approval to Van Staden v Fourie 1989
(3) SA 200 (A) and Nedcor Bank Bpk v Regering van die Republiek van
Suid-Afrika 2001 (1) SA 987 (SCA)
2 Inter alia, Burley Appliances Ltd v Grobbelaar
NO & others (1) SA 602 (C); Consol Ltd t/a Consol Glass v Twee
Jonge Gezellen (Pty) Ltd & another  4 All SA 517 (C);
Uitenhage Municipality v Molloy 1998 (2) SA 735 (SCA); Drennan Maud
& Partners v Pennington Town Board 1998 (3) SA 200 (SCA);
Leketi v Tladi NO & others  3 All SA 519
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