Groep v Golden Arrow Bus Services (Pty) Ltd; Groep v W J Da Grass Attorneys (5338/2007; 2417/2011) [2017] ZAWCHC 128; [2018] 1 All SA 508 (WCC); 2018 (5) SA 248 (WCC) (15 November 2017)

Groep v Golden Arrow Bus Services (Pty) Ltd; Groep v W J Da Grass Attorneys (5338/2007; 2417/2011) [2017] ZAWCHC 128; [2018] 1 All SA 508 (WCC); 2018 (5) SA 248 (WCC) (15 November 2017)

The court found that the letter of 26 June 2008 from Deneys Reitz Attorneys, which stated that Golden Arrow no longer intended to persist with its special plea of prescription, was sent as part of ongoing settlement negotiations and was marked 'without prejudice'. As such, it is privileged and inadmissible in evidence. The court held that the concession regarding prescription formed the basis of settlement discussions and was not disconnected from the negotiations. Therefore, the letter cannot be used to prove waiver of the prescription defence. The court declined to address the issues of authority and estoppel, as the privileged nature of the communication rendered them moot. The...

Citation
[2017] ZAWCHC 128
Parties
Plaintiff: James Johannes Groep; Defendant: Golden Arrow Bus Services (Pty) Ltd; Defendant: WJ Da Grass Attorneys
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
15 November 2017
Case Number
5338/2007; 2417/2011
Procedural Posture
Civil Trial / Determination of Separated Issue Under Rule 33(4)
Outcome
The separated issue is determined in favour of Golden Arrow Bus Services (Pty) Ltd. The letter of 26 June 2008 is inadmissible, and the special plea of prescription has not been abandoned.
Judges
Gamble
Legal Topics
Prescription Act, Professional Negligence, Without Prejudice Communications, Waiver of Defence, Estoppel
Civil Procedure Delict Prescription Act Professional Negligence Without Prejudice Communications Waiver of Defence Estoppel

Case Brief

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Parties

James Johannes Groep

Plaintiff

Golden Arrow Bus Services (Pty) Ltd

Defendant

WJ Da Grass Attorneys

Defendant

Procedural Posture

Civil Trial / Determination of Separated Issue Under Rule 33(4)

Legal Issues

  1. 1 Whether Golden Arrow Bus Services (Pty) Ltd waived its right to rely on the special plea of prescription through correspondence marked 'without prejudice'.
  2. 2 Whether the letter dated 26 June 2008 from Deneys Reitz Attorneys constitutes admissible evidence of waiver of prescription.
  3. 3 Whether Da Grass Attorneys are liable for professional negligence for allowing the plaintiff's claim to prescribe.

Ratio Decidendi

The court found that the letter of 26 June 2008 from Deneys Reitz Attorneys, which stated that Golden Arrow no longer intended to persist with its special plea of prescription, was sent as part of ongoing settlement negotiations and was marked 'without prejudice'. As such, it is privileged and inadmissible in evidence. The court held that the concession regarding prescription formed the basis of settlement discussions and was not disconnected from the negotiations. Therefore, the letter cannot be used to prove waiver of the prescription defence. The court declined to address the issues of authority and estoppel, as the privileged nature of the communication rendered them moot. The...

Court Disposition

The separated issue is determined in favour of Golden Arrow Bus Services (Pty) Ltd. The letter of 26 June 2008 is inadmissible, and the special plea of prescription has not been abandoned.

Orders

  • The separated issue is determined in favour of Golden Arrow Bus Services (Pty) Ltd.
  • It is declared that the letter of 26 June 2008 written by Deneys Reitz to Da Grass Attorneys is inadmissible in evidence.