Ekman v Venter & Volschenk Attorneys and Another (44655/2013) [2015] ZAGPPHC 369 (1 June 2015)

Ekman v Venter & Volschenk Attorneys and Another (44655/2013) [2015] ZAGPPHC 369 (1 June 2015)

The court found that the defendants, acting as the plaintiff's attorneys, failed to institute claims against the Road Accident Fund within the prescribed periods and did not inform the plaintiff timeously of the prescription of his claims. The evidence established that the plaintiff was only notified of the prescription on 26 July 2010, despite the claims having prescribed years earlier. The court held that the defendants wilfully prevented the plaintiff from discovering the prescription by not communicating promptly, and that section 12(2) and (3) of the Prescription Act applied. The defendants did not act as reasonable attorneys would have under the circumstances, and their special...

Citation
[2015] ZAGPPHC 369
Parties
Plaintiff: A.H. Ekman; Defendant: Venter & Volschenk Attorneys; Defendant: Stoffel Jacobus Venter
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 June 2015
Case Number
44655/2013
Procedural Posture
Civil Trial / Special Pleas of Prescription Separated and Adjudicated Before Remainder of Trial
Outcome
The defendants' special pleas of prescription are dismissed. The plaintiff's action is not prescribed.
Judges
C Pretorius
Legal Topics
Prescription Act Section 12, Professional Negligence, Wilful Concealment, Road Accident Fund Claims, Attorney Duties
Civil Procedure Delict Prescription Act Section 12 Professional Negligence Wilful Concealment Road Accident Fund Claims Attorney Duties

Case Brief

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Parties

A.H. Ekman

Plaintiff

Venter & Volschenk Attorneys

Defendant

Stoffel Jacobus Venter

Defendant

Procedural Posture

Civil Trial / Special Pleas of Prescription Separated and Adjudicated Before Remainder of Trial

Legal Issues

  1. 1 Whether the defendants' special pleas of prescription should succeed in light of their conduct regarding notification to the plaintiff.
  2. 2 Whether the defendants wilfully prevented the plaintiff from discovering the prescription of his claims.
  3. 3 Whether the defendants acted as reasonable attorneys in handling the plaintiff's claims.

Ratio Decidendi

The court found that the defendants, acting as the plaintiff's attorneys, failed to institute claims against the Road Accident Fund within the prescribed periods and did not inform the plaintiff timeously of the prescription of his claims. The evidence established that the plaintiff was only notified of the prescription on 26 July 2010, despite the claims having prescribed years earlier. The court held that the defendants wilfully prevented the plaintiff from discovering the prescription by not communicating promptly, and that section 12(2) and (3) of the Prescription Act applied. The defendants did not act as reasonable attorneys would have under the circumstances, and their special...

Court Disposition

The defendants' special pleas of prescription are dismissed. The plaintiff's action is not prescribed.

Orders

  • The first and second special pleas are dismissed.
  • The defendants are ordered to pay the costs, including the cost of senior counsel.