Kelbrick and Others v Nelson Attorneys and Another (2645/2011) [2017] ZAECPEHC 19 (2 March 2017)

Kelbrick and Others v Nelson Attorneys and Another (2645/2011) [2017] ZAECPEHC 19 (2 March 2017)

The court found that the plaintiffs' claim had prescribed in terms of section 11(d) of the Prescription Act. The cause of action was complete by 27 July 2008, when it became clear that the development would not proceed and the plaintiffs would suffer damages. The plaintiffs failed to issue summons within the three-year prescription period, only serving the defendants on 1 September 2011. The court held that the plaintiffs either knew or ought to have known of the facts giving rise to their claim and did not act with reasonable care to preserve their rights. The special plea of prescription was dispositive of the action, and the claim was dismissed.

Citation
[2017] ZAECPEHC 19
Parties
Plaintiff: Leonie Logie Kelbrick; Plaintiff: Antonius Gerhardus van den Berg; Plaintiff: Margie van den Berg; Defendant: Nelson Attorneys; Defendant: Pierre Kitchings Attorneys
Court
Eastern Cape High Court, Port Elizabeth
Jurisdiction
South Africa
Judgment Date
2 March 2017
Case Number
2645/2011
Procedural Posture
Civil Trial / Judgment on Special Plea of Prescription
Outcome
Plaintiffs' claim dismissed with costs due to prescription.
Judges
P.W. Tshiki
Legal Topics
Prescription Act, Special Plea, Duty of Care, Breach of Contract
Civil Procedure Prescription Act Special Plea Duty of Care Breach of Contract

Case Brief

Summary, issues, holding and outcome

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Parties

Leonie Logie Kelbrick

Plaintiff

Antonius Gerhardus van den Berg

Plaintiff

Margie van den Berg

Plaintiff

Nelson Attorneys

Defendant

Pierre Kitchings Attorneys

Defendant

Procedural Posture

Civil Trial / Judgment on Special Plea of Prescription

Legal Issues

  1. 1 Whether the plaintiffs' claim against the defendants has prescribed under the Prescription Act.
  2. 2 Whether the defendants owed the plaintiffs a duty of care after transfer of the properties.
  3. 3 Whether the defendants negligently breached any duty of care owed to the plaintiffs.

Ratio Decidendi

The court found that the plaintiffs' claim had prescribed in terms of section 11(d) of the Prescription Act. The cause of action was complete by 27 July 2008, when it became clear that the development would not proceed and the plaintiffs would suffer damages. The plaintiffs failed to issue summons within the three-year prescription period, only serving the defendants on 1 September 2011. The court held that the plaintiffs either knew or ought to have known of the facts giving rise to their claim and did not act with reasonable care to preserve their rights. The special plea of prescription was dispositive of the action, and the claim was dismissed.

Court Disposition

Plaintiffs' claim dismissed with costs due to prescription.

Orders

  • The plaintiffs' claim is dismissed with costs.