Grimbeek v Jakobo (922/2017) [2018] ZASCA 131 (27 September 2018)

Grimbeek v Jakobo (922/2017) [2018] ZASCA 131 (27 September 2018)

The Supreme Court of Appeal held that the respondent's failure to make further enquiries regarding the progress of his claim was not unreasonable in the particular circumstances of the case. The respondent and his family placed deep trust in the appellant, an attorney recommended by the father's employer, and followed his instructions to be patient. The appellant never warned them of the risk of prescription or advised them to seek another attorney. The appellant failed to discharge the onus of proving that the respondent obtained constructive knowledge of the debt before actual knowledge of the failure to lodge the claim with the RAF. The court found that the respondent's inaction was...

Citation
[2018] ZASCA 131
Parties
Appellant: Johannes Petrus Louis Grimbeek; Respondent: Mziwandile Alfred Jakobo
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 September 2018
Case Number
922/2017
Procedural Posture
Civil Appeal / Appeal From the Free State Division of the High Court, Bloemfontein
Outcome
The appeal succeeds only to the extent that the full court's order on the merits is set aside; the special plea of prescription is dismissed with costs.
Judges
Lewis, Tshiqi, Saldulker, Swain, Mothle
Legal Topics
Prescription Act, Professional Negligence, Special Plea of Prescription, Onus of Proof, Constructive Knowledge
Civil Procedure Delict Prescription Act Professional Negligence Special Plea of Prescription Onus of Proof Constructive Knowledge

Case Brief

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Parties

Johannes Petrus Louis Grimbeek

Appellant

Mziwandile Alfred Jakobo

Respondent

Procedural Posture

Civil Appeal / Appeal From the Free State Division of the High Court, Bloemfontein

Legal Issues

  1. 1 Whether the respondent's claim against the appellant for professional negligence was prescribed under s 12(3) of the Prescription Act.
  2. 2 Whether the respondent exercised reasonable care in making enquiries about the progress of his claim.
  3. 3 Whether the appellant discharged the onus of proving that the respondent obtained constructive knowledge of the debt before actual knowledge.

Ratio Decidendi

The Supreme Court of Appeal held that the respondent's failure to make further enquiries regarding the progress of his claim was not unreasonable in the particular circumstances of the case. The respondent and his family placed deep trust in the appellant, an attorney recommended by the father's employer, and followed his instructions to be patient. The appellant never warned them of the risk of prescription or advised them to seek another attorney. The appellant failed to discharge the onus of proving that the respondent obtained constructive knowledge of the debt before actual knowledge of the failure to lodge the claim with the RAF. The court found that the respondent's inaction was...

Court Disposition

The appeal succeeds only to the extent that the full court's order on the merits is set aside; the special plea of prescription is dismissed with costs.

Orders

  • The appeal succeeds to the extent set out in paragraph 2 below and the appellant is ordered to pay the respondent's costs of appeal.
  • The order of the full court is set aside and replaced with the following order: '(a) The appeal succeeds with costs. (b) The order of the trial court upholding the special plea of prescription and dismissing the appellant's claim is set aside and replaced with the following order: The special plea of prescription is...