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
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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 28th September 2000,

alternatively, the 26th October 2000, further alternatively before the 22nd

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
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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,
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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:

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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

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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.

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[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
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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

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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)
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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