Barnard v Schoonraad, Delport & Van der Merwe Inc (3679/2010) [2024] ZAECQBHC 3 (23 January 2024)

Barnard v Schoonraad, Delport & Van der Merwe Inc (3679/2010) [2024] ZAECQBHC 3 (23 January 2024)

The court found that the defendant's assertion that prescription commenced on 29 November 2007 was not supported by the evidence. The consultation on 28 November 2007 did not provide the plaintiff with clear and sufficient knowledge that his claim against Metropolitan Life had prescribed or that he had a claim against the defendant for negligent handling. Both the plaintiff and Mr Delport were uncertain about the merits of the special pleas at that stage, and it was only after Adv Gajjar's opinion on 10 December 2007 that the plaintiff acquired the necessary knowledge. The court accepted the plaintiff's evidence that he was confused and did not understand the implications of the special...

Citation
[2024] ZAECQBHC 3
Parties
Plaintiff: André Barnard; Defendant: Schoonraad, Delport & Van der Merwe Inc.
Court
Eastern Cape High Court, Gqeberha
Jurisdiction
South Africa
Judgment Date
23 January 2024
Case Number
3679/2010
Procedural Posture
Civil Procedure / Special Plea of Prescription
Outcome
Defendant's special plea of prescription dismissed with costs.
Judges
M Makaula
Legal Topics
Prescription Act, Professional Negligence, Mandate Breach, Attorney Liability
Civil Procedure Delict Prescription Act Professional Negligence Mandate Breach Attorney Liability

Case Brief

Summary, issues, holding and outcome

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Parties

André Barnard

Plaintiff

Schoonraad, Delport & Van der Merwe Inc.

Defendant

Procedural Posture

Civil Procedure / Special Plea of Prescription

Legal Issues

  1. 1 Whether the plaintiff's claim against the defendant attorneys has prescribed under section 11(d) of the Prescription Act.
  2. 2 Whether the plaintiff had sufficient knowledge of the facts giving rise to the claim before 10 December 2007.
  3. 3 Whether the defendant's conduct amounted to negligent handling of the plaintiff's claim against Metropolitan Life.

Ratio Decidendi

The court found that the defendant's assertion that prescription commenced on 29 November 2007 was not supported by the evidence. The consultation on 28 November 2007 did not provide the plaintiff with clear and sufficient knowledge that his claim against Metropolitan Life had prescribed or that he had a claim against the defendant for negligent handling. Both the plaintiff and Mr Delport were uncertain about the merits of the special pleas at that stage, and it was only after Adv Gajjar's opinion on 10 December 2007 that the plaintiff acquired the necessary knowledge. The court accepted the plaintiff's evidence that he was confused and did not understand the implications of the special...

Court Disposition

Defendant's special plea of prescription dismissed with costs.

Orders

  • The defendant's special plea is dismissed with costs.