Schoonraad, Delport and Van Der Merwe Incorporated v Barnard (Leave to Appeal) (3679/2010) [2024] ZAECQBHC 88 (29 August 2024)

IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION, GQEBERHA)

CASE No: 3679/2010

In the matter between:

SCHOONRAAD, DELPORT AND

VAN DER MERWE INCORPORATED

Applicant

and

ANDRE BARNARD

Respondent

APPLICATION FOR LEAVE TO APPEAL JUDGMENT

MAKAULA J:

A. Introduction.

[1] This is an application for leave to appeal the judgment I handed down on 23 January 2024 dismissing a special plea of prescription raised by the applicant.

[2] The respondent sought and engaged the legal services of the applicant which is a firm of attorneys. The applicant accepted the mandate but failed to issue summons timeously, as a result of which the claim prescribed. As a result, the respondent issued summons against the defendant for damages based on the alleged failure to carry out its mandate. Similarly, the applicant raised a special plea of prescription to the summons issued against it by the respondent. Upon consideration of the special plea raised, I dismissed it on the basis that at the time the summons was served on the applicant, the claim had not been prescribed.

B. Background facts.

[3] The applicant appeared before me, represented by its director, Mr. Delport. Mr. Delport testified that prescription started to run against the applicant on 29 November 2007, a day after he met with the respondent and informed him that there was a problem with his claim against Metropolitan Life. The applicant argued that the claim against it prescribed on 28 November 2010. He testified as follows in his evidence;

“My consultation is to the effect that I specifically pointed out the contents of the pleas, the special pleas that is there and that I was material concerned about the contents thereof and that I believe there is a problems and that is negative for his case going forward with regard to having success with his claim… we will obviously not proceed with the matter further.” (sic)

[4] The respondent denied the contention by the applicant. He stated that he only became aware that there was negligence on the part of the applicant on 10 December 2007, when Advocate Gajjar opined that the special pleas raised by Metropolitan Life would succeed. The respondent submitted that when the summons was served on the applicant on 3 December 2010, the claim had not prescribed.

[5] The crux of my judgment lay in the interpretation I gave to the statement made by Mr. Delport to the respondent. I found that the information or conveyed facts to the respondent could not have led the latter to believe that he had a claim against the applicant. I further had regard to the evidence globally and the actions of the applicant after he consulted with the respondent. For instance, the applicant, consulted with Advocate Grobbler who had initially assisted Mr Van der Merwe in handling the matter, and the opinion the applicant sought from Advocate Gajjar regarding whether the special

pleas raised would stand or not. In the circumstances, I found that at the time of the consultation, Mr. Delport, was uncertain as to whether the claim against the applicant had prescribed.

C. DISCUSSION

[6] The applicant assails the judgment on the following basis: (a) an affidavit made by the respondent, wherein he stated that “I realized that the applicant had not performed its mandate in a proper and professional manner”; (b) “Daar is ‘n problem die saak het verjaar”; (c) and “the applicant did not do the job they had to do.” These speak to the discussion they had on 28 November 2007. The applicant argued that all these factors suggest that Mr. Delport did all he did in order to confirm his fears. Otherwise, he had made it explicit to the respondent that the claim had prescribed.

[7] Realising, that the judgment centers around the interpretation of what was stated by the applicant at the time he met with the respondent on 28 November 2007, I am of the view that there is a reasonable possibility that a court of appeal could arrive at a different interpretation and evaluation of the evidence.

[8] Consequently. I make the following order:

8.1 Leave to Appeal is granted to the Full Court of this Division.

8.2 Costs shall be costs in the appeal.

M MAKAULA

JUDGE OF THE HIGH COURT

Appearances

For the Applicant

: Adv L Schubart SC

Instructed by

: Greyvensteins

For the Respondent

: Adv K Williams

Instructed by:

: Lizelle Pretorius Inc.

Date heard

: 17 April 2024

Judgment delivered

: 29 August 2024