Nditha v Z Ariefdien Attorneys (20169/2008) [2012] ZAWCHC 378 (5 December 2012)

Nditha v Z Ariefdien Attorneys (20169/2008) [2012] ZAWCHC 378 (5 December 2012)

The court found that the plaintiff was in possession of the material facts necessary to institute her claim against the defendant by November 2004, when she received the Law Society's letter stating that her Road Accident Fund claim had prescribed and that the defendant had been under instruction to pursue it. Prescription under s 12(3) of the Prescription Act therefore commenced at that time, and the claim was extinguished by prescription three years later, well before the action was instituted in December 2008. The court rejected the plaintiff's reliance on s 12(2) of the Prescription Act, as it was not pleaded and, in any event, the defendant's conduct after November 2004 did not...

Citation
[2012] ZAWCHC 378
Parties
Plaintiff: Nombuso Angeline Nditha; Defendant: Z Ariefdien Attorneys
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
5 December 2012
Case Number
20169/2008
Procedural Posture
Civil Trial / Special Plea of Prescription Determined Before Merits
Outcome
Special plea of prescription upheld; action dismissed with costs.
Judges
Binns-Ward
Legal Topics
Prescription Act, Professional Negligence, Breach of Mandate
Civil Procedure Prescription Act Professional Negligence Breach of Mandate

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 7 Party arguments 2
Sign in to unlock

Parties

Nombuso Angeline Nditha

Plaintiff

Z Ariefdien Attorneys

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription Determined Before Merits

Legal Issues

  1. 1 Whether the plaintiff's claim against the defendant was extinguished by prescription before the action was instituted.
  2. 2 Whether the plaintiff had the requisite knowledge of the facts giving rise to the debt for prescription to commence running under s 12(3) of the Prescription Act.
  3. 3 Whether s 12(2) of the Prescription Act could delay the running of prescription due to alleged wilful prevention by the defendant.

Ratio Decidendi

The court found that the plaintiff was in possession of the material facts necessary to institute her claim against the defendant by November 2004, when she received the Law Society's letter stating that her Road Accident Fund claim had prescribed and that the defendant had been under instruction to pursue it. Prescription under s 12(3) of the Prescription Act therefore commenced at that time, and the claim was extinguished by prescription three years later, well before the action was instituted in December 2008. The court rejected the plaintiff's reliance on s 12(2) of the Prescription Act, as it was not pleaded and, in any event, the defendant's conduct after November 2004 did not...

Court Disposition

Special plea of prescription upheld; action dismissed with costs.

Orders

  • The special plea of prescription is upheld.
  • The action is dismissed with costs.