IN THE HIGH COURT OF SOUTH AFRICA (WITWATERSRAND LOCAL DIVISION) REPORTABLE CASE NO: 04/9610 In the matter between: DITEDU. DINEO ROSLYN Plaintiff and TAYOB, YOUSHA Defendant JUDGMENT GOLDSTEIN J: [1] The plaintiff, a 42 year old woman sues the defendant, who is an attorney, for damages in the sum of R472 172.00. She alleges in her particulars of claim that she was involved in a collision on 3 March 2000, that she sustained various bodily injuries, and suffered damages in the amount of R475 500. 00, that she gave the defendant a written mandate to lodge a
2 claim for her damages against the Road Accident Fund constituted by Act 56 of 1996, and that he performed his services negligently and settled her claim for an amount of R5013.00, of which she received R3328.00. She alleges that he failed to advise her not to accept the offer made by the Road Accident Fund. [2] The defendant pleads specially that the claim has prescribed. Paragraph 8 of the amended plea, handed to me at the inception of the hearing before me, reads as follows: The Plaintiff is deemed to have acquired knowledge of the facts from which her claim arises on the 28 th September 2000, alternatively, the 26 th October 2000, further alternatively before the 22 nd April 2001. During argument Mr Kruger, who appeared for the defendant, stated that his case was that the plaintiff was deemed to have acquired knowledge of the facts from which her claim arose before 22 April 2001; the latter date is the date upon which the summons was served upon the defendant. [3] The parties have requested me at this stage of the proceedings to determine only the issue of prescription raised by the special plea. The defendant, who bears the onus of proof, gave evidence before me and called two witnesses. For the plaintiff only she gave evidence. It is clear from the evidence that, on 14 March 2000, the plaintiff gave the defendant a written mandate to act as her attorney, the terms of which included his
3 power to settle her claim on her behalf. It appears that the Road Accident Fund thereafter on 7 September 2000 offered an amount of R5013,00 in settlement of the claim, together with a contribution to costs of R1500.00. On 12 September 2000 the defendant accepted the offer, and on 20 November 2000, after the Road Accident Fund had paid the amount of the settlement, the plaintiff was paid an amount of R3328.00 by a Close Corporation known as CL Administrators CC, with which the defendant had contracted to do the work involved. The plaintiff testified that she was satisfied with the amount which she regarded as substantial. [4] Section 12 of the Prescription Act 68 of 1969 reads as follows in so far as it is relevant: (1) Subject to the provisions of subsection... (3), prescription shall commence to run as soon as the debt is due. (2) (3) A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care. [5] Mr Kruger argues that on 20 November 2000 the plaintiff had knowledge of the identity of her debtor, the defendant, and of the facts from which the debt arose. At that stage, the argument continues, she knew the extent of her injuries, and the extent of the compensation paid to her, and she must have had knowledge that the amount was too low. In the alternative,
4 counsel contended that with the exercise of reasonable care she ought to have acquired such knowledge. Counsel sought support for his submissions in Van Staden v Fourie 1989(3) SA 200 (A) at 216 C E where the following appears: Die probleem in die onderhawige geval draai om die toepassing van die woorde 'die feite waaruit die skuld ontstaan' in art 12(3) van die Verjaringswet. Die respondent was klaarblyklik bewus van die basiese feite. Hy het geweet wat die aard en inhoud van sy kontrak was. Uiteraard was hy bewus daarvan dat feitlik geen van die besonderhede vereis deur art 17 van die Wet daarin opgeneem was nie. Ook het hy geweet dat die stukke waarna in die artikel verwys word, nie die kontrak vergesel het nie. Hy was dus bewus van die feite wat aangetoon het dat art 17 van die Wet nie nagekom is nie. Hy het geweet dat hy betalings kragtens die kontrak gemaak het. Myns insiens was hy dus van meet af aan ten volle bewus van al die feite wat aanleiding gegee het tot die spesiale remedies voorgeskryf deur art 18 van die Wet. 'n Mens kan aanvaar dat hy eers later bewus geword het van watter vereistes deur art 17 van die Wet gestel word, en van watter regte hy verkry het toe die appellant nie hierdie vereistes nagekom het nie. Artikel 12(3) van die Verjaringswet stel egter nie die aanvang van verjaring uit totdat die skuldeiser die volle omvang van sy regte uitgevind het nie. Die toegewing wat die Verjaringswet in hierdie verband maak, is beperk tot kennis van 'die feite waaruit die skuld ontstaan'. Myns insiens het die respondent reeds sodanige kennis gehad toe hy die eerste betaling gemaak het. [6] Mr Kruger contended that it is the law which indicates that the award was too low, and that it is the law which determines that the defendant acted negligently, and that accordingly the plaintiff was not protected at all by the provisions of section 12(3), which only relates to facts. [7] In paragraph 11 of her particulars of claim the plaintiff alleges that the Defendant was negligent in the performance of his duties in one or more or all of the following respects:
5 11.1 he failed to properly investigate the nature and extent of the Plaintiff s injuries in that he failed to refer the Plaintiff to any medical specialists for the purposes of obtaining medico-legal reports; 11.2 he failed to properly investigate and determine the Plaintiff s claim for general damages; 11.3 he failed to claim for the costs of the Plaintiff s future medical treatment; 11.4 he failed to lodge a claim for the Plaintiff s loss of earnings; 11.5 he settled the Plaintiff s claim for an amount of R5 013, 00. Arguably these allegations indicate that the plaintiff s case of negligence against the defendant does depend on a number of facts. However, I am prepared to accept, in the defendant s favour, that the plaintiff s failure to appreciate that she had been wronged resulted only from her ignorance of the law. [8] In my view, once a layman consults an attorney, or other legal expert, and the latter furnishes him or her with an opinion as to the law, which opinion proves to be erroneous, the furnishing of that erroneous opinion is a fact for the purposes of section 12(3). Van Staden was concerned with a plaintiff s ignorance of the law, and not with the interposing of an opinion by a legal expert as to such law. The same applies to the case Eskom v Bojanala Platinum District Municipality, an unreported judgment of Moseneke J (as he then was) in the Transvaal Provincial Division, cited by John Saner in his Prescription in South African Law (updated to 31 May 2005) at page 3-44(2). The plaintiff in that case, although armed with senior counsel s opinion on its claim, and a judgment of the Transvaal
6 Provincial Division, waited until the Supreme Court of Appeal had pronounced on the matter before issuing summons against the defendant. Moseneke J rejected the contention that the claimant was entitled to await legal certainty before seeking to enforce its claim. That case is different from the present. In Eskom the plaintiff was armed with an opinion of counsel which, I gather, confirmed its right to sue. In the present case the plaintiff was in effect provided with an opinion by her attorney which was wrong in law. [9] If Mr Kruger s contention were to be accepted, laymen contracting with attorneys for the furnishing of their expertise in the knowledge of the law would be without a remedy in respect of any errors made by such attorneys, and discovered more than 3 years after the rendering of the service concerned. This would be an absurd result especially in the case of commercial contracts of long duration which the legislature could not have intended. Moreover section 39(2) of the Constitution enjoins me (w)hen interpreting any legislation, (to) promote the spirit, purport and objects of the Bill of Rights. In Van Zijl v Hoogenhout 2005(2) SA 93 (SCA) Heher JA said the following at 98I: In addition, the plaintiff is entitled to the benefits of a constitutional dispensation that promotes, rather than inhibits, access to courts of law. The present plaintiff is, of course, entitled to the same benefits.
7 [10] It is significant too that in Van Staden Grosskopf JA stated at 216G that he expressed no opinion on the possibility of the voidness of a contract being a fact for the purposes of section 12(3) in appropriate circumstances. [11] Clearly the plaintiff was unaware, after she received the amount of the settlement, that her attorney had acted negligently. She was first apprised of this during 2003 when she consulted with her present attorney, after she was taken to him as a potential witness of the collision of 3 March 2000, in which she had been injured. It follows that the defendant is restricted to relying on the proviso to section 12(3). I am enjoined by authority in adjudicating upon the standard of care required of the plaintiff to have regard to subjective and objective factors. I must postulate a diligens paterfamilias falling within her group or particular circumstances. Would such a person, I must ask, have sought to acquire the necessary knowledge for her to have brought this action within approximately 5 months of the settlement? See Administrator, Cape v Olpin 1996(1) SA 569 (C) at 578 579. [12] In this regard, it is relevant to note that the plaintiff s educational level did not advance beyond standard three, since she left school half way through standard four. She is not able to read English, although she did state in re-examination that she was able to understand it, but not able to speak the language. During the month before the collision she was
8 economically active in some or other enterprise with a view to earning commission, but she earned none in that time; for a year before that she had been unemployed, she said. Previously she had worked as a domestic servant, and also as a washer woman. She was under the impression that the amount she obtained was a substantial sum, and she did not suspect that her attorney had not acted properly in settling her claim. The defendant bears the onus of proving that, in acting as she did, she failed to meet the standard of care required by section 12(3). Given her limited education and degree of sophistication, I am unable to find that the defendant discharged this onus. [13] Mr Kruger contended that two factors ought to have made the plaintiff suspicious about the defendant s conduct, or that of his agent. First, counsel relied on the plaintiff s evidence that when she was telephoned to attend on the offices of what she thought were those of her attorneys, she was told to come alone, and that, when asked why this was so, the conversation was terminated by the person to whom she was speaking putting down the telephone. In my view, the conduct referred to is not logically connected to the erroneous advice the plaintiff allegedly received and, in any event, as counsel for the plaintiff suggested, the conduct may be explained on the basis that the plaintiff was about to receive an amount of money, possibly in cash, and it would have been safer for her to receive it alone. Secondly, counsel referred to the paucity of the amount paid to
9 the plaintiff. Of course, the smallness of the amount is a relative issue. To a washer woman or domestic servant the amount may well have appeared substantial. In support of his submission in this regard counsel referred to evidence he solicited under cross examination: the plaintiff stated that when she worked as a washer woman she was paid piecemeal, if I understood her evidence correctly, and, when pressed, she said that she earned R400.00 per week, and when pressed further, that this amounted to R1600.00 per month. The evidence concerned was not preceded by any related evidence in chief, and my impression was that the plaintiff herself was quite uncertain of the figures she was providing. Furthermore, it is by no means clear to me that a plaintiff, as unsophisticated as this one is, would have understood that she was entitled to compensation for loss of earnings. [14] It follows from the aforegoing that the defendant failed to discharge the onus resting upon him and that the special plea falls to be dismissed. I make the following order: 1. The special plea is dismissed. 2. The defendant is ordered to pay the plaintiff s costs of the trial of 17, 18 and 19 August 2005. E L GOLDSTEIN JUDGE OF THE HIGH COURT (WITWATERSRAND LOCAL DIVISION)
10 For the plaintiff: C Vallaro Instructed by: Anthony Rome For the defendant: H J Kruger Instructed by: Maluleke, Msimang & Associates Date of hearing: 17, 18, and 19 August 2005 Date of judgment: 24 August 2005