Mahlasela v Klopper Jonker Incorporated (2016/11734) [2020] ZAGPJHC 249 (13 October 2020)

Mahlasela v Klopper Jonker Incorporated (2016/11734) [2020] ZAGPJHC 249 (13 October 2020)

The court found that by no later than January 2013, the plaintiff, through her representative Mr Mahlasela, had actual knowledge of the facts giving rise to the debt and the identity of the debtor, as envisaged in section 12(3) of the Prescription Act. The evidence of the defendant's witness, Mr Ungerer, was accepted as credible and reliable, establishing that the plaintiff was advised to consult another attorney and was introduced to Mr Du Toit by January 2013. The plaintiff's summons was only served on 15 April 2016, outside the three-year prescription period. Accordingly, the plaintiff's claim against the defendant had prescribed.

Citation
[2020] ZAGPJHC 249
Parties
Plaintiff: Ntsoke Maria Mahlasela; Defendant: Klopper Jonker Incorporated
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
13 October 2020
Case Number
2016/11734
Procedural Posture
Civil Trial / Special Plea of Prescription Decided Before Merits
Outcome
Defendant's special plea of prescription upheld; plaintiff's action dismissed with costs.
Judges
A Lamprecht
Legal Topics
Prescription Act, Professional Negligence, Running of Prescription, Actual Knowledge, Special Plea
Civil Procedure Prescription Act Professional Negligence Running of Prescription Actual Knowledge Special Plea

Case Brief

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Parties

Ntsoke Maria Mahlasela

Plaintiff

Klopper Jonker Incorporated

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription Decided Before Merits

Legal Issues

  1. 1 Whether the plaintiff's claim against the defendant for professional negligence has prescribed under the Prescription Act.
  2. 2 Whether the plaintiff had actual or deemed knowledge of the facts giving rise to the debt and the identity of the debtor prior to 16 April 2013.
  3. 3 Whether the defendant discharged the evidentiary burden to prove prescription.

Ratio Decidendi

The court found that by no later than January 2013, the plaintiff, through her representative Mr Mahlasela, had actual knowledge of the facts giving rise to the debt and the identity of the debtor, as envisaged in section 12(3) of the Prescription Act. The evidence of the defendant's witness, Mr Ungerer, was accepted as credible and reliable, establishing that the plaintiff was advised to consult another attorney and was introduced to Mr Du Toit by January 2013. The plaintiff's summons was only served on 15 April 2016, outside the three-year prescription period. Accordingly, the plaintiff's claim against the defendant had prescribed.

Court Disposition

Defendant's special plea of prescription upheld; plaintiff's action dismissed with costs.

Orders

  • The defendant's special plea is upheld.
  • The plaintiff's action is dismissed with costs.