Ekman v Venter & Volschenk Attorneys and Another (44655/2013) [2015] ZAGPPHC 541 (1 July 2015)

Ekman v Venter & Volschenk Attorneys and Another (44655/2013) [2015] ZAGPPHC 541 (1 July 2015)

The court found that the defendants, as attorneys, had a duty to inform the plaintiff timeously of the prescription of his claims. Their failure to do so constituted wilful prevention under section 12(2) of the Prescription Act. The evidence showed that the plaintiff only became aware of the prescription on 26 July 2010, when the defendants finally informed him. The court held that prescription only began to run from that date. The defendants did not act as reasonable attorneys would have under the circumstances, and their special pleas of prescription could not succeed. The court applied section 12(2) and (3) of the Prescription Act, finding that the defendants' conduct prevented the...

Citation
[2015] ZAGPPHC 541
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 July 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
Pretorius
Legal Topics
Professional Negligence, Prescription Act, Road Accident Fund, Wilful Concealment, Attorney Duties
Civil Procedure Delict Professional Negligence Prescription Act Road Accident Fund Wilful Concealment Attorney 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 (3) of the Prescription Act applies to the facts of this case.

Ratio Decidendi

The court found that the defendants, as attorneys, had a duty to inform the plaintiff timeously of the prescription of his claims. Their failure to do so constituted wilful prevention under section 12(2) of the Prescription Act. The evidence showed that the plaintiff only became aware of the prescription on 26 July 2010, when the defendants finally informed him. The court held that prescription only began to run from that date. The defendants did not act as reasonable attorneys would have under the circumstances, and their special pleas of prescription could not succeed. The court applied section 12(2) and (3) of the Prescription Act, finding that the defendants' conduct prevented the...

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 ordered to pay the costs, including the cost of senior counsel.