'You Don't Need To Know Your Right To Sue The Professional, But The Facts Relating To The Debt' – Prescription Intricacies At The Forefront, Again!

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The Johannesburg High Court ("the court") has handed down a judgment on a matter that brought, once again, the prescription intricacies to the fore. There are many cases pertaining to prescription...
South Africa Litigation, Mediation & Arbitration
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Introduction

The Johannesburg High Court ("the court") has handed down a judgment on a matter that brought, once again, the prescription intricacies to the fore. There are many cases pertaining to prescription, from different courts, and, with each case, there are unique variables that make each case intricate.

Facts

Briefly, the Plaintiff sued his erstwhile law firm and attorney whom he had instructed to assist with his RAF claim. The RAF claim in question resulted from an accident that occurred in 2004. This accident qualified as an 'unidentified MVA' in terms of the RAF Act, and same had to be lodged within two years from date of the accident. The attorney failed to lodge the Plaintiff's claim timeously. The Plaintiff was informed in 2009, by the relevant attorney, that he had misplaced his office file, and the claim had not been lodged. The attorney further advised the Plaintiff to seek legal advice regarding the matter. Although the Plaintiff went to the Wits Law Clinic for assistance, nothing came out of it. He also did not make any follow-ups. Further, in 2010, he visited the RAF offices to enquire about the status of his claim and he was advised that there was no record of his claim. He then consulted with his 'new' attorneys in 2019. The Plaintiff's case against the Defendants was met with a Special Plea of prescription – with the Defendants arguing that prescription began to run when he was informed by the attorney in 2009 that the file had been misplaced. Other alternative grounds for prescription were pleaded, e.g., if prescription did not begin to run in 2009, it began in 2010 when the Plaintiff was informed by the RAF that there were no records of his claim.

Legal considerations

It was common cause between the parties that the RAF claim had prescribed. Therefore, the Prescription Act, not the RAF Act, regulated the prescription periods in the matter. Summons in this matter was issued in August 2021. The first issue to determine was the date on which the debt became due. The Plaintiff argued that the debt became due when he consulted with his new attorneys in August 2019. The Defendants argued that same became due in 2009 when the Plaintiff was informed of the misplaced file and failure, by the attorney, to lodge the claim timeously. The court stated that the Plaintiff was in possession of the required minimum facts to institute legal action against the Defendants from the date on which he consulted with the relevant attorney in 2009. Referring to the Mtokonya v Minister of Police decision of the Constitutional Court, the court held that it is not required of the Plaintiff to have knowledge of his right to sue the Defendants nor to have knowledge of legal conclusions that may be drawn from the minimum facts. In upholding the Defendants' Special Plea, the court held that the claim prescribed as a result of the Plaintiff's inaction, and not because he lacked the necessary facts to institute the action.

Conclusion

Whilst there are various decided cases on prescription, the issue of prescription frequently arises, and the courts are frequently called upon to decide such cases. Although the principles explained and applied in this case are by no means groundbreaking, the case serves as a necessary reminder of some critical principles (depicted above) relating to prescription.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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