Kelbrick and Others v Nelson Attorneys and Another (307/2017) [2018] ZASCA 55 (16 April 2018)

Kelbrick and Others v Nelson Attorneys and Another (307/2017) [2018] ZASCA 55 (16 April 2018)

The Supreme Court of Appeal held that the respondent failed to discharge the onus of proving that prescription commenced on 27 July 2008. The removal of restrictive conditions was a prerequisite for construction, and until those conditions were removed, the appellants could not have known that Status Homes would not perform its obligations. The evidence showed that construction could not legally commence before 26 August 2008, and the appellants were awaiting the outcome of the application to remove the restrictive conditions. The respondent did not prove that the appellants had actual or deemed knowledge of all facts necessary to institute action before the alleged prescription date....

Citation
[2018] ZASCA 55
Parties
Appellant: Leonie Logie Kelbrick; Appellant: Antonius Gerhardus van den Berg; Appellant: Margie van den Berg; Respondent: Nelson Attorneys; Respondent: Pierre Kitching Attorneys
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
16 April 2018
Case Number
307/2017
Procedural Posture
Civil Appeal / Appeal From Eastern Cape Local Division, Port Elizabeth
Outcome
Appeal upheld; special plea of prescription dismissed with costs.
Judges
Shongwe, Wallis, Dambuza, Van der Merwe, Makgoka
Legal Topics
Prescription Act, Negligence, Duty of Care, Special Plea, Separation of Issues
Delict Civil Procedure Prescription Act Negligence Duty of Care Special Plea Separation of Issues

Case Brief

Summary, issues, holding and outcome

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Parties

Leonie Logie Kelbrick

Appellant

Antonius Gerhardus van den Berg

Appellant

Margie van den Berg

Appellant

Nelson Attorneys

Respondent

Pierre Kitching Attorneys

Respondent

Procedural Posture

Civil Appeal / Appeal From Eastern Cape Local Division, Port Elizabeth

Legal Issues

  1. 1 Whether the appellants' claim against the respondent attorneys had prescribed under the Prescription Act.
  2. 2 Whether the appellants had knowledge of all facts necessary to institute action before the alleged prescription date.
  3. 3 Whether the separation of issues under rule 33(4) was appropriate in the circumstances.

Ratio Decidendi

The Supreme Court of Appeal held that the respondent failed to discharge the onus of proving that prescription commenced on 27 July 2008. The removal of restrictive conditions was a prerequisite for construction, and until those conditions were removed, the appellants could not have known that Status Homes would not perform its obligations. The evidence showed that construction could not legally commence before 26 August 2008, and the appellants were awaiting the outcome of the application to remove the restrictive conditions. The respondent did not prove that the appellants had actual or deemed knowledge of all facts necessary to institute action before the alleged prescription date....

Court Disposition

Appeal upheld; special plea of prescription dismissed with costs.

Orders

  • The appeal is upheld with costs, including costs attendant upon the employment of two counsel.
  • The order of the court a quo is set aside and replaced with: 'The first defendant’s special plea of prescription is dismissed with costs.'