IN THE HIGH COURT OF SOUTH AFRICA 
(CAPE OF GOOD HOPE PROVINCIAL DIVISION)

Case no: 7236/2009

In the matter between:

BABALWA KWEYIYA 						Plaintiff

and

CHARLES ROBERT ROGER MacLEOD				Defendant

JUDGE:			P.A.L. GAMBLE

FOR THE PLAINTIFF:		Adv. Geoff Budlender SC 

INSTRUCTED BY:		Messrs Malcolm Lyons & Brivik Inc 

FOR THE DEFENDANT:		Adv. P.B.J. Farlam 

INSTRUCTED BY:		Deneys Reitz Inc 

DATES OF HEARINGS:		15 March 2012 

IN THE HIGH COURT OF SOUTH AFRICA WESTERN CAPE HIGH COURT, CAPE TOWN
REPORTABLE
CASE NO: 7236/2009
In the matter between:

And

JUDGMENT : 10 APRIL 2012

GAMBLE, J:
INTRODUCTION

vehicle which collided with a Toyota motor vehicle in Khayelitsha. Plaintiff's date of birth is 29 April 1984 and so she was not yet three years old at the time. The Plaintiff was seriously injured in the collision and was rendered paraplegic as a consequence thereof.

Vehicle Accidents Act of 1986, was initiated by the Defendant on behalf of the Plaintiff's mother.

quantum of the MVA claim against Santam was said to be of the order of R2,3 million

THE SPECIAL PLEA OF PRESCRIPTION

action against him arose by no later than 31 May 1997 being the date the Defendant advised the Plaintiff's mother to settle the MVA claim.

knew, or could reasonably have acquired knowledge of, the identity of the debtor and the facts giving rise to the Defendant by 7 April 2006. Accordingly, so the allegation goes, when the summons was served on 8 April 2009 the claim had become prescribed in terms of Sections 11,12 and 13 of the Act.

foreshadows a potential plea of prescription by alleging that she first became aware of the terms of the settlement of the MVA claim on 19 April 2006 when an erstwhile employee of the Defendant, Ms. Evelyn Stroud, made certain documents available to her. It is further contended that the Plaintiff first consulted her current attorneys of record on 4 February 2009. The Plaintiff goes on to allege that the date upon which she first had knowledge of the facts from which the debt arose was therefore 4 February 2009, alternatively 19 April 2006.

THE RELEVANT STATUTORY FRAMEWORK

And, in terms of Sections 13(1)(a) and (i) of the Act, the completion of the running of prescription is delayed (if the creditor is a minor) for a period of one year after the attainment of majority.

The effect of Section 13 of the Act then is to delay the completion of prescription in this case until 28 April 2006.

THE APPLICABLE CASE LAW

"This means that the creditor is deemed to have the requisite knowledge if a reasonable person in his position would have deduced the identity of the debtor and the facts from which the debt arises."

The test is, accordingly, an objective assessment as to whether the creditor has behaved reasonably.

THE MATERIAL FACTS

special plea, he had the duty to begin with the leading of evidence. The Defendant called Ms. Stroud and thereafter testified himself. The Plaintiff closed her case without leading any evidence.

Defendant said that there was no accusation or suggestion by the Plaintiff during this meeting that he had been negligent in the handling of the MVA claim. When asked by the Plaintiff whether there was any money still due to her the Defendant said that he told her that everything had been paid out. Importantly, said the Defendant, there was nothing that he said or did that day which would (or should) have alerted the Plaintiff to the fact that she may have a claim for professional malpractice against him.

the Plaintiff, and was later tasked by the Defendant with location of the file Ms Stroud said that on 19 April 2006 she sent the Plaintiff an email to the following effect:

1. The Order of Court.
2. A letter from the RAF- confirming payment amount.
3. A breakdown of payments to be made to Housing Africa.
4. A finalized account of the finances.

Unfortunately we only have a faxed copy of the Deed of Sale (for the house your mother purchased) which has faded almost beyond illegibility (sic)."

'The Plaintiff knew that the claim had been settled, and that the compensation for the accident paid for the house which her mother purchased. She knew this in 1996 or 1997."

CONCLUSION

Plaintiff could reasonably have acquired knowledge of the facts material to her claim before 19 April 2006. In the circumstances her claim against the Defendant has not prescribed.
[39] It follows that the special plea falls to be dismissed with costs.

GAMBLE J