C&A Friedlander Attorneys

In common day life, individuals are more than likely to find themselves in situations involving a claim of a delictual nature. That is to say, a wrongful act or omission by one person giving rise to a claim for compensation to another. The most prevalent of these types of claims surely are motor vehicle collisions.

As is usually the case in a collision, the Defendant claims the collision was not the result of his doing only, and claims that the collision was occasioned by the contributory negligence of the Plaintiff. This situation is also governed by the Apportionment of Damages Act 34 of 56 (“the Act”).

Delictual claims as a rule prescribe three years after the date of loss. Thus, a person seeking compensation from another must institute his claim by means of Summons and serve the Summons within three years, in order to interrupt prescription. As a result of various reasons, the institution of action might be delayed until the very last moment.

This delay will have the effect that a Defendant, when instituting his counterclaim, does so outside the prescription period, which in theory would mean that the Counterclaim has prescribed. Section 1(2) of the Act deals with this specific scenario, stating that a Plaintiff cannot claim damages from a Defendant who has instituted a counterclaim for damages caused by the Plaintiff – if the Plaintiff then takes the position that the counterclaim has prescribed (i.e. filed more than 3 years after the date of the collision!)

The aforementioned was considered and decided in the matter of Vaal Maseru Busdiens (Edms) Bpk v Wascon Siviel CC 2003 (3) SA 226 (O) where it was common cause that in 1997, a collision occurred between the Plaintiff’s bus and Defendant’s truck. Both vehicles were being driven at the time by employees of the respective parties, acting in the course and scope of their employment.

Suing for damages, the Plaintiff alleged that the collision was caused solely by the negligence of the Defendant’s driver, which negligence caused the Plaintiff to suffer damages in the amount of R176 000. In its plea, the Defendant denied that its employee caused the accident, and laid the blame with the Plaintiff’s driver. It filed a counterclaim for the costs of repair to its truck. In a special plea to the counterclaim, the Plaintiff averred that the Defendant’s claim had prescribed.

After an inspection in loco, the parties agreed that there was contributory negligence on the part of both drivers with the Defendant liable for 80% and the Plaintiff 20% of the damages. The only question remaining in dispute was the Defendant’s reply to the Plaintiff’s special plea.

The Court held that the collision occurred on 29 October 1997. The Defendant’s counterclaim was filed on 4 December 2000. The validity of the respective claims of the parties was subject to the prescriptive period of three years as envisaged in section 11(d) of the Prescription Act 69 of 1969. To avoid a plea of prescription, the counterclaim should have been filed by 29 October 2000. The special plea was thus upheld.

However, the effect of section 1(2) of the Prescription Act which deals with the consequences of pleading prescription in certain circumstances meant that while avoiding the Defendant’s counterclaim, the Plaintiff also contravened the express provisions of section 1(2).

The Court concluded that the Plaintiff qualified as a claimant who avoided liability by relying on prescription; that the Plaintiff pleaded and proved prescription of the Defendant’s claim and that the Plaintiff had thus forfeited the right to recover the damages of his claim from the Defendant. Accordingly, the Plaintiff’s claim was dismissed with costs.

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)

Fred Visagie
C & A Friedlander Inc.
– Insurance Law

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