Mpato v Hlatswayo-Mhaise Incorporated (2010/28156) [2011] ZAGPJHC 136 (14 October 2011)

Mpato v Hlatswayo-Mhaise Incorporated (2010/28156) [2011] ZAGPJHC 136 (14 October 2011)

The court held that the plaintiff acquired knowledge of all material facts necessary to institute a claim against the defendant by 27 July 2004, when the defendant failed to issue and serve summons on the third party. Knowledge of negligence or legal certainty, whether through counsel's opinion or a subsequent court...

Source-derived case information.

Citation
[2011] ZAGPJHC 136
Parties
Plaintiff: Gabriel Mpato; Defendant: Hlatswayo-Mhaise Incorporated
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
14 October 2011
Case Number
2010/28156
Procedural Posture
Civil Judgment / Stated Case; Plea of Prescription
Outcome
Plaintiff's claim dismissed with costs.
Judges
W L Wepener
Legal Topics
Prescription, Attorney Negligence, Cause of Action, Knowledge of Facts
Civil Procedure Delict Prescription Attorney Negligence Cause of Action Knowledge of Facts

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Summary, issues, holding and outcome

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Parties

Gabriel Mpato

Plaintiff

Hlatswayo-Mhaise Incorporated

Defendant

Procedural Posture

Civil Judgment / Stated Case; Plea of Prescription

Legal Issues

  1. 1 Whether the plaintiff's claim against the defendant has become prescribed under the Prescription Act.
  2. 2 Whether the plaintiff had knowledge of the material facts necessary to institute a claim against the defendant before the prescription period expired.
  3. 3 Whether counsel's opinion or a court judgment constitutes knowledge of material facts for prescription purposes.

Ratio Decidendi

The court held that the plaintiff acquired knowledge of all material facts necessary to institute a claim against the defendant by 27 July 2004, when the defendant failed to issue and serve summons on the third party. Knowledge of negligence or legal certainty, whether through counsel's opinion or a subsequent court judgment, does not constitute a material fact for prescription purposes. The plaintiff's affidavit dated 1 July 2005 further confirmed his awareness of the relevant facts. As the summons was served on the defendant more than three years after the plaintiff obtained such knowledge, the claim had become prescribed under the Prescription Act. The court rejected the plaintiff's...

Court Disposition

Plaintiff's claim dismissed with costs.

Orders

  • The plaintiff's claim against the defendant is dismissed.
  • The plaintiff is ordered to pay the costs of the defendant.