Bonfiglio v ATB Chartered Accountants (SA) (20762/2006) [2009] ZAGPPHC 90 (19 June 2009)

Bonfiglio v ATB Chartered Accountants (SA) (20762/2006) [2009] ZAGPPHC 90 (19 June 2009)

The court found that the cause of action for damages against the defendant only became complete when the plaintiff suffered actual loss, which was established upon receipt of the nulla bona return after execution against Mr Raath failed. Prior to this, the plaintiff could not have known with certainty that she had suffered damages or that Mr Raath would not pay. The defendant's own correspondence confirmed that any action against it before the nulla bona return would have been premature. Therefore, prescription only commenced on 8 July 2003, the date of the nulla bona return, and the plaintiff's claim instituted on 30 June 2006 had not prescribed.

Citation
[2009] ZAGPPHC 90
Parties
Plaintiff: Edna Bonfiglio; Defendant: ATB Chartered Accountants (SA)
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
19 June 2009
Case Number
20762/2006
Procedural Posture
Civil Trial / Special Plea on Prescription Decided Separately Under Rule 33(4)
Outcome
The defendant's special plea of prescription is dismissed with costs.
Judges
Pretorius
Legal Topics
Prescription Act, Commencement of Prescription, Cause of Action, Breach of Contract
Civil Procedure Prescription Act Commencement of Prescription Cause of Action Breach of Contract

Case Brief

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Parties

Edna Bonfiglio

Plaintiff

ATB Chartered Accountants (SA)

Defendant

Procedural Posture

Civil Trial / Special Plea on Prescription Decided Separately Under Rule 33(4)

Legal Issues

  1. 1 Whether the plaintiff's claim against the defendant has prescribed under the Prescription Act 68 of 1969.
  2. 2 When did the cause of action for damages against the defendant become complete and the debt become due for purposes of prescription?

Ratio Decidendi

The court found that the cause of action for damages against the defendant only became complete when the plaintiff suffered actual loss, which was established upon receipt of the nulla bona return after execution against Mr Raath failed. Prior to this, the plaintiff could not have known with certainty that she had suffered damages or that Mr Raath would not pay. The defendant's own correspondence confirmed that any action against it before the nulla bona return would have been premature. Therefore, prescription only commenced on 8 July 2003, the date of the nulla bona return, and the plaintiff's claim instituted on 30 June 2006 had not prescribed.

Court Disposition

The defendant's special plea of prescription is dismissed with costs.

Orders

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