Ekman v Venter & Volschenk Attorneys and Another (44655/2013) [2015] ZAGPPHC 358 (1 June 2015)

Ekman v Venter & Volschenk Attorneys and Another (44655/2013) [2015] ZAGPPHC 358 (1 June 2015)

The court found that the defendants, acting as attorneys, failed in their professional duty to inform the plaintiff timeously of the prescription of his claims against the Road Accident Fund. The defendants' conduct amounted to wilful prevention under section 12(2) of the Prescription Act, as they deliberately withheld information regarding the prescription. The court held that prescription only began to run when the plaintiff was informed on 26 July 2010. The defendants did not act as reasonable attorneys would have, and their special pleas of prescription were dismissed. The court applied an objective test for reasonable care and found that the defendants' negligence and inaction should...

Citation
[2015] ZAGPPHC 358
Parties
Plaintiff: A.H. Ekman; Defendant: Venter & Volschenk Attorneys; Defendant: Stoffel Jacobus Venter
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
1 June 2015
Case Number
44655/2013
Procedural Posture
Civil Trial / Special Plea of Prescription
Outcome
The defendants' special pleas of prescription are dismissed. Costs are awarded against the defendants, including the cost of senior counsel.
Judges
C Pretorius
Legal Topics
Professional Negligence, Prescription Act, Road Accident Fund, Wilful Concealment, Reasonable Care, Attorney Client Duties
Civil Procedure Delict Professional Negligence Prescription Act Road Accident Fund Wilful Concealment Reasonable Care Attorney Client Duties

Case Brief

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Parties

A.H. Ekman

Plaintiff

Venter & Volschenk Attorneys

Defendant

Stoffel Jacobus Venter

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription

Legal Issues

  1. 1 Whether the defendants' special pleas of prescription should succeed in light of their conduct as attorneys.
  2. 2 Whether the defendants wilfully prevented the plaintiff from discovering the prescription of his claims.
  3. 3 Whether section 12(2) and 12(3) of the Prescription Act apply to the defendants' conduct.

Ratio Decidendi

The court found that the defendants, acting as attorneys, failed in their professional duty to inform the plaintiff timeously of the prescription of his claims against the Road Accident Fund. The defendants' conduct amounted to wilful prevention under section 12(2) of the Prescription Act, as they deliberately withheld information regarding the prescription. The court held that prescription only began to run when the plaintiff was informed on 26 July 2010. The defendants did not act as reasonable attorneys would have, and their special pleas of prescription were dismissed. The court applied an objective test for reasonable care and found that the defendants' negligence and inaction should...

Court Disposition

The defendants' special pleas of prescription are dismissed. Costs are awarded against the defendants, including the cost of senior counsel.

Orders

  • The first and second special pleas are dismissed.
  • The defendants are to pay the costs, including the cost of senior counsel.