ATB Chartered Accountants (SA) v Bonfiglio (648/09) [2010] ZASCA 124; [2011] 2 All SA 132 (SCA) [2011] 2 All SA 132 (SCA) (30 September 2010)

ATB Chartered Accountants (SA) v Bonfiglio (648/09) [2010] ZASCA 124; [2011] 2 All SA 132 (SCA) [2011] 2 All SA 132 (SCA) (30 September 2010)

The Supreme Court of Appeal held that prescription in respect of the respondent's claim commenced to run no later than 3 April 2003, when the respondent was informed that the purchaser was unable to pay and the company had been liquidated. At that point, the respondent had knowledge of all facts necessary to sustain her claim against ATB, and her right of action had accrued. The court rejected the respondent's argument that prescription only commenced upon the filing of the nulla bona return, finding that such an approach would unduly delay the running of prescription. As the summons was issued on 30 June 2006, after the three-year prescription period had expired, the claim was prescribed...

Citation
[2010] ZASCA 124
Parties
Appellant: ATB Chartered Accountants (SA); Respondent: Edna Bonfiglio
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 September 2010
Case Number
648/09
Procedural Posture
Civil Appeal / Appeal From North Gauteng High Court (pretoria), First Instance
Outcome
Appeal upheld; respondent's claim dismissed as prescribed.
Judges
Nugent, Cloete, R Pillay, Bertelsmann, Ebrahim
Legal Topics
Extinctive Prescription, Prescription Act 68 of 1969, Contractual Damages, Professional Negligence
Civil Procedure Commercial and Corporate Extinctive Prescription Prescription Act 68 of 1969 Contractual Damages Professional Negligence

Case Brief

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Parties

ATB Chartered Accountants (SA)

Appellant

Edna Bonfiglio

Respondent

Procedural Posture

Civil Appeal / Appeal From North Gauteng High Court (pretoria), First Instance

Legal Issues

  1. 1 Whether the respondent's claim against the appellant was extinguished by prescription under the Prescription Act 68 of 1969.
  2. 2 When did prescription commence to run in respect of the respondent's claim for damages arising from breach of contract and/or negligence by the appellant.

Ratio Decidendi

The Supreme Court of Appeal held that prescription in respect of the respondent's claim commenced to run no later than 3 April 2003, when the respondent was informed that the purchaser was unable to pay and the company had been liquidated. At that point, the respondent had knowledge of all facts necessary to sustain her claim against ATB, and her right of action had accrued. The court rejected the respondent's argument that prescription only commenced upon the filing of the nulla bona return, finding that such an approach would unduly delay the running of prescription. As the summons was issued on 30 June 2006, after the three-year prescription period had expired, the claim was prescribed...

Court Disposition

Appeal upheld; respondent's claim dismissed as prescribed.

Orders

  • The appeal is upheld with costs.
  • The order of the North Gauteng High Court is set aside in its entirety and substituted with: 'The special plea of prescription is upheld and the plaintiff's action is dismissed with costs.'