Zungu v Greyling t/a Greyling Attorneys (2014/32381) [2017] ZAGPJHC 267 (18 September 2017)

Zungu v Greyling t/a Greyling Attorneys (2014/32381) [2017] ZAGPJHC 267 (18 September 2017)

The court found that the plaintiff had knowledge of the identity of the defendant and the facts giving rise to the claim by 27 October 2010, when his attorney received and discussed the medico-legal report. Prescription commenced on that date and expired on 26 October 2013. The plaintiff failed to prove that prescription was interrupted by any express or tacit acknowledgment of liability by the defendant. The alleged responses of 'ok, ok' did not amount to an admission of liability, and no agreement was recorded or confirmed in writing. The plaintiff's action was instituted and served after the prescription period had lapsed, and therefore the claim was dismissed.

Citation
[2017] ZAGPJHC 267
Parties
Plaintiff: Zungu Mkhulisen Thulebuka; Defendant: Delene Greyling t/a Greyling Attorneys
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
18 September 2017
Case Number
2014/32381
Procedural Posture
Civil Trial / Special Plea of Prescription Heard Prior to Merits; Action Dismissed on Prescription
Outcome
Special plea of prescription upheld; plaintiff's action dismissed with costs.
Judges
Nkosi
Legal Topics
Prescription Act, Special Plea, Interruption of Prescription, Breach of Mandate, Professional Negligence
Civil Procedure Prescription Act Special Plea Interruption of Prescription Breach of Mandate Professional Negligence

Case Brief

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Parties

Zungu Mkhulisen Thulebuka

Plaintiff

Delene Greyling t/a Greyling Attorneys

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription Heard Prior to Merits; Action Dismissed on Prescription

Legal Issues

  1. 1 Whether the plaintiff's claim against the defendant has prescribed under the Prescription Act.
  2. 2 Whether an express or tacit agreement existed between the parties that interrupted prescription by acknowledgment of liability.

Ratio Decidendi

The court found that the plaintiff had knowledge of the identity of the defendant and the facts giving rise to the claim by 27 October 2010, when his attorney received and discussed the medico-legal report. Prescription commenced on that date and expired on 26 October 2013. The plaintiff failed to prove that prescription was interrupted by any express or tacit acknowledgment of liability by the defendant. The alleged responses of 'ok, ok' did not amount to an admission of liability, and no agreement was recorded or confirmed in writing. The plaintiff's action was instituted and served after the prescription period had lapsed, and therefore the claim was dismissed.

Court Disposition

Special plea of prescription upheld; plaintiff's action dismissed with costs.

Orders

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