The recent judgment in Stanguous Mzonzima Mncwabe v SS Nqayi Attorneys, highlights important principles regarding prescription and the responsibilities of attorneys when handling their clients' claims.
The plaintiff, who suffered severe injuries in a 2011 accident resulting in the amputation of his right leg, initially instructed Karodia Attorneys to pursue his Road Accident Fund (RAF) claim. Dissatisfied with their fees, he later appointed SS Nqayi Attorneys to take over the matter. In November 2013, the RAF offered ZAR 750,000 for general damages. The defendant's attorney explained that accepting the offer would constitute a full and final settlement, meaning no further claims could be pursued. Despite this advice, the plaintiff insisted on accepting the offer, and payment was made on 15 November 2013.
Nearly nine years later, in October 2022, the plaintiff consulted new attorneys that advised he might have a claim against his former attorney. He subsequently instituted proceedings in June 2023, seeking ZAR 5 million in damages for alleged negligence.
The defendant raised a special plea, arguing that the claim had prescribed under section 11 of the Prescription Act 68 of 1969. According to the defendant, the three-year prescription period began when the plaintiff accepted the settlement in November 2013, or at the latest by the end of 2014, when the plaintiff returned to query the deductions. The plaintiff contended that, as a layperson, he only became aware of the facts giving rise to the claim in October 2022 when advised by his new attorneys.
The court examined section 12(3) of the Prescription Act, which provides that prescription begins when the creditor knows the identity of the debtor and the facts giving rise to the debt, or could have acquired such knowledge by exercising reasonable care. Importantly, the court reaffirmed that knowledge of legal conclusions is not required for prescription to start running, only knowledge of the material facts, as established in case law.
On the evidence, the court found that the plaintiff accepted and signed for the settlement cheque in 2013 and returned to the defendant in 2014 to express dissatisfaction. He had previously lodged a complaint with the Law Society against another attorney, demonstrating that he understood how to pursue grievances. The court concluded that the plaintiff had actual or constructive knowledge of the relevant facts by the end of 2014. His claim therefore prescribed by late 2017. The special plea was upheld, and the claim dismissed with costs.
The judgment makes it clear that prescription runs from the time a claimant knows the material facts, not when they receive legal advice as is often argued by claimants. Even if a claimant does not fully appreciate the legal implications, they are deemed to have the requisite knowledge if they could have acquired it by exercising reasonable care. It is therefore imperative that claimant's act promptly once relevant facts come to light.
