Dlamini v Kubushi (2967/2003) [2005] ZAFSHC 69 (3 November 2005)

Dlamini v Kubushi (2967/2003) [2005] ZAFSHC 69 (3 November 2005)

The court found that the probabilities overwhelmingly favoured the defendant's version that the plaintiff was fully aware that the payment received was in full and final settlement of his claim. The plaintiff's evidence was inconsistent and lacked credibility, particularly regarding his understanding of the settlement and the reasons for the delay in instituting action. The court held that the debt became due either on the date of lodging the claim or on acceptance of the settlement, and the plaintiff had three years from either date to sue the defendant. As the summons was served well after the prescription period had expired, the plaintiff's claim was found to have prescribed.

Citation
[2005] ZAFSHC 69
Parties
Plaintiff: Paulos Dlamini; Defendant: E M Kubushi
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
3 November 2005
Case Number
2967/2003
Procedural Posture
Civil Trial / Special Plea of Prescription
Outcome
Plaintiff's claim dismissed on prescription; special plea upheld.
Judges
Ebrahim
Legal Topics
Prescription Act, Professional Negligence, Breach of Mandate, Damages Claim, Settlement Agreement
Civil Procedure Delict Prescription Act Professional Negligence Breach of Mandate Damages Claim Settlement Agreement

Case Brief

Summary, issues, holding and outcome

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Parties

Paulos Dlamini

Plaintiff

E M Kubushi

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription

Legal Issues

  1. 1 Whether the plaintiff's claim against the defendant has prescribed under the Prescription Act.
  2. 2 Whether the defendant was negligent in settling the plaintiff's claim for less than he was entitled to.
  3. 3 Whether the defendant properly informed the plaintiff of the terms and consequences of the settlement.

Ratio Decidendi

The court found that the probabilities overwhelmingly favoured the defendant's version that the plaintiff was fully aware that the payment received was in full and final settlement of his claim. The plaintiff's evidence was inconsistent and lacked credibility, particularly regarding his understanding of the settlement and the reasons for the delay in instituting action. The court held that the debt became due either on the date of lodging the claim or on acceptance of the settlement, and the plaintiff had three years from either date to sue the defendant. As the summons was served well after the prescription period had expired, the plaintiff's claim was found to have prescribed.

Court Disposition

Plaintiff's claim dismissed on prescription; special plea upheld.

Orders

  • The special plea of prescription is upheld.
  • The plaintiff's claim against the defendant is dismissed.