BEWARE PRESCRIPTION -Consult your attorney timeously

In McMillan v Bate Chubb & Dickson Incorporated (299/2020) [2021] ZASCA 45 (15 April 2021)

The Supreme Court of Appeal (SCA) dismissed with costs an appeal brought by Mr

Bruce Gordon McMillan (Mr McMillan) against Bate Chubb & Dickson Incorporated and upheld

the decision of the Eastern Cape Division of the High Court, East London (the high court).

The issue before the SCA was whether, as at the time of service of the summons on 13

October 2017, in respect of an action instituted by Mr McMillan against the respondent, a law

firm, for damages for breach of an oral mandate, the appellant’s claim had become prescribed.

During or about November 1998, and at East London, the appellant and the respondent

entered into an oral agreement in terms of which the appellant gave the respondent an oral

mandate to prepare an antenuptial contract for the purposes of regulating the financial affairs

of the intended marriage between the appellant and one Rosemary Lois Jannaway, the

appellant’s former wife. On 13 October 2017, the appellant instituted action in the high court

against the respondent for damages for breach of the oral mandate.

The appellant alleged that the respondent failed to prepare the antenuptial contract in accordance with their instructions. He averred that the respondent in fact drew up an antenuptial contract, which was, in a later divorce action, declared to be void ab initio. The respondent alleged that prescription started running on 9 or 12 May 2014, when the respondent advised the appellant to consult a different attorney, as he had a potential claim against the respondent, and not on 18 October 2016, when the divorce court declared that the antenuptial contract was invalid, as contended by the appellant. The respondent claimed that the three-year prescription period ended on 12 May 2017. On that premise, by the time the summons was served on the respondent, his claim had prescribed.

The SCA held that the appellant’s claim had become prescribed. This conclusion was based

on the finding that he acquired knowledge of all the material facts on which to institute his

claim against the respondent on 9 or 12 May 2014. Consequently, prescription began to run

on 9 or 12 May 2014 when the appellant was informed that there was a problem with the

antenuptial contract, which arose from the perceived conflict between the provisions of clause

4 and clause 5. The SCA held further that it may have been that the appellant had not

appreciated the legal consequences flowing from the facts, but his failure to do so did not

delay the date prescription commenced to run. Similarly, the respondent’s failure to concede

liability did not delay the date prescription began to run. The SCA found that, in the light of the

conclusion on the prescription point, which was dispositive of the appeal, it was unnecessary

to consider further issues raised in the separation order.

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