Van Heerden & Brummer Inc v Bath

In 2005 the respondent, Mr Bath, mandated the appellant firm of attorneys to draft an antenuptial contract in contemplation of his marriage. The contract was registered but, during subsequent divorce proceedings instituted in 2010, his spouse challenged its validity. On 3 September 2012 the High Court declared the antenuptial contract void ab initio for vagueness, with the result that the marriage was in community of property. Mr Bath was advised by his attorneys in August–September 2012 of the consequences of invalidity, the resulting patrimonial loss, and that he had a potential damages claim against the appellant. His appeal against the invalidity finding was dismissed by the Supreme Court of Appeal on 24 March 2014, and the divorce was finalised in 2015. Mr Bath instituted a damages claim for professional negligence against the appellant on 24 January 2017, served on 2 February 2017. The appellant raised a special plea that the claim had prescribed.

The appeal was upheld with costs. The High Court’s order was set aside and replaced with an order upholding the appellant’s special plea of prescription and dismissing the respondent’s claim with costs.

The decision reinforces and clarifies South African prescription law, particularly in professional negligence claims, by confirming that prescription is not postponed until appeals are finalised or legal certainty is achieved. It affirms that knowledge of legal conclusions is not required under s 12(3) of the Prescription Act and aligns with Constitutional Court and SCA jurisprudence such as Mtokonya and McMillan.