Funeka v T. Qina and Sons (1725/2011) [2018] ZAECMHC 11 (22 February 2018)

Funeka v T. Qina and Sons (1725/2011) [2018] ZAECMHC 11 (22 February 2018)

The court found that the defendant did not wilfully prevent the plaintiff from coming to know of the existence of the debt, as he was himself unaware that the claim had prescribed until he was served with summons. The plaintiff failed to exercise reasonable care in monitoring the progress of her claim and seeking alternative legal advice at an earlier stage. Her new attorneys, upon receiving her file in February 2010, ought to have realised that the claim against the Road Accident Fund had prescribed and that a claim against the defendant would soon prescribe. The knowledge of the debt by her attorneys is imputed to her. The plaintiff's reliance on section 12(2) and (3) of the...

Citation
[2018] ZAECMHC 11
Parties
Plaintiff: Mgobozi Patricia Funeka; Defendant: T. Qina & Sons
Court
Eastern Cape High Court, Mthatha
Jurisdiction
South Africa
Judgment Date
22 February 2018
Case Number
1725/2011
Procedural Posture
Civil Trial / Special Plea of Prescription Separated and Determined Before Merits
Outcome
Defendant's special plea of prescription upheld; judgment granted in favour of the defendant with costs.
Judges
RWN Brooks
Legal Topics
Prescription Act, Professional Negligence, Road Accident Fund Claim, Onus of Proof, Wilful Concealment
Civil Procedure Delict Prescription Act Professional Negligence Road Accident Fund Claim Onus of Proof Wilful Concealment

Case Brief

Summary, issues, holding and outcome

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Parties

Mgobozi Patricia Funeka

Plaintiff

T. Qina & Sons

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription Separated and Determined Before Merits

Legal Issues

  1. 1 Whether the plaintiff's claim against the defendant prescribed in terms of the Prescription Act 68 of 1969.
  2. 2 Whether the defendant wilfully prevented the plaintiff from coming to know of the existence of the debt, thereby delaying prescription under section 12(2) of the Prescription Act.
  3. 3 Whether the plaintiff exercised reasonable care to acquire knowledge of the debt as required by section 12(3) of the Prescription Act.

Ratio Decidendi

The court found that the defendant did not wilfully prevent the plaintiff from coming to know of the existence of the debt, as he was himself unaware that the claim had prescribed until he was served with summons. The plaintiff failed to exercise reasonable care in monitoring the progress of her claim and seeking alternative legal advice at an earlier stage. Her new attorneys, upon receiving her file in February 2010, ought to have realised that the claim against the Road Accident Fund had prescribed and that a claim against the defendant would soon prescribe. The knowledge of the debt by her attorneys is imputed to her. The plaintiff's reliance on section 12(2) and (3) of the...

Court Disposition

Defendant's special plea of prescription upheld; judgment granted in favour of the defendant with costs.

Orders

  • The defendant's special plea is upheld.
  • Judgment is granted in favour of the defendant with costs.