J v Grimbeek (380/2013) [2017] ZAFSHC 64 (11 May 2017)

J v Grimbeek (380/2013) [2017] ZAFSHC 64 (11 May 2017)

The appeal court found that the trial court erred in focusing on the plaintiff's conduct rather than the defendant's. The available accounting records and evidence demonstrated that the defendant failed to execute his mandate with reasonable diligence, did not obtain essential documents, and prematurely closed the file without proper communication or investigation. The plaintiff was not to blame for the prescription of his claim; the defendant's exclusive negligence was the sole cause. The defendant failed to discharge the onus required to uphold the special plea of prescription. The appeal succeeded, the special plea was dismissed, and the merits were determined in favour of the...

Citation
[2017] ZAFSHC 64
Parties
Appellant: M. A. J.; Respondent: Johannes Petrus Louis Grimbeek
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
11 May 2017
Case Number
380/2013
Procedural Posture
Civil Appeal / Appeal Against Trial Court's Upholding of Special Plea of Prescription
Outcome
Appeal upheld. Special plea of prescription dismissed. Merits determined in favour of the plaintiff. Defendant held fully liable for damages to be proven or agreed.
Judges
MH Rampai, C Van Zyl, JJ Mhlambi
Legal Topics
Professional Negligence, Extinctive Prescription, Road Accident Fund Claims, Onus of Proof, Mandate Termination
Delict Civil Procedure Professional Negligence Extinctive Prescription Road Accident Fund Claims Onus of Proof Mandate Termination

Case Brief

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Parties

M. A. J.

Appellant

Johannes Petrus Louis Grimbeek

Respondent

Procedural Posture

Civil Appeal / Appeal Against Trial Court's Upholding of Special Plea of Prescription

Legal Issues

  1. 1 Whether the defendant attorney was negligent in failing to lodge the plaintiff's third party claim against the Road Accident Fund before prescription.
  2. 2 Whether the special plea of prescription was correctly upheld by the trial court.
  3. 3 Whether the plaintiff's conduct contributed to the loss of his claim or whether the defendant's exclusive negligence was the sole cause.

Ratio Decidendi

The appeal court found that the trial court erred in focusing on the plaintiff's conduct rather than the defendant's. The available accounting records and evidence demonstrated that the defendant failed to execute his mandate with reasonable diligence, did not obtain essential documents, and prematurely closed the file without proper communication or investigation. The plaintiff was not to blame for the prescription of his claim; the defendant's exclusive negligence was the sole cause. The defendant failed to discharge the onus required to uphold the special plea of prescription. The appeal succeeded, the special plea was dismissed, and the merits were determined in favour of the...

Court Disposition

Appeal upheld. Special plea of prescription dismissed. Merits determined in favour of the plaintiff. Defendant held fully liable for damages to be proven or agreed.

Orders

  • The appeal succeeds with costs.
  • The order granted on 7 August 2014 is set aside and substituted as follows: