Schoonraad, Delport and Van der Merwe Incorporated v Barnard

The respondent, Andre Barnard, instructed the applicant, Schoonraad, Delport and Van der Merwe Incorporated (a firm of attorneys), to pursue a claim against Metropolitan Life. The applicant accepted the mandate but failed to issue summons timeously, allegedly causing the original claim to prescribe. Barnard thereafter instituted an action against the applicant for damages arising from professional negligence. The applicant raised a special plea of prescription, contending that Barnard became aware of the alleged negligence on 28 or 29 November 2007 and that the claim against the applicant therefore prescribed by 28 November 2010. Barnard disputed this, asserting that he only became aware of the negligence on 10 December 2007 after receiving counsel’s opinion that the special pleas in the Metropolitan Life matter would succeed. Summons against the applicant was served on 3 December 2010. The special plea of prescription was dismissed, and the applicant then applied for leave to appeal.

Leave to appeal was granted to the Full Court of the Eastern Cape Division, with costs to be costs in the appeal.

The case illustrates the fact-sensitive inquiry required to determine when prescription begins to run in professional negligence claims, particularly against legal practitioners. It highlights that mere suspicion or uncertainty does not necessarily amount to the knowledge required to trigger prescription under the Prescription Act, and it underscores the appellate threshold for granting leave to appeal where factual interpretation is central.