Van Heerden & Brummer Inc v Bath

The appellant, Van Heerden & Brummer Inc, a firm of attorneys, was engaged by the respondent, Mr Harry Bath, to draft an antenuptial contract in contemplation of his marriage on 21 October 2005. The contract was drafted by Ms Nunes, a Notary Public employed by the appellant, and registered on 9 November 2005. In February 2010, the respondent instituted divorce proceedings against his wife. The appellant represented him, with Mr Brummer as attorney and Ms Hartman as counsel. In her amended plea, Mrs Bath alleged the antenuptial contract was void for vagueness. On 3 September 2012, Louw J held that the antenuptial contract was void ab initio due to vagueness and that the marriage was in community of property. The respondent was granted leave to appeal on 22 November 2012. The appeal was heard on 24 February 2014 and dismissed on 24 March 2014 by the Supreme Court of Appeal. A decree of divorce was granted on 13 October 2015. The respondent instituted this action for damages on 24 January 2017 and served summons on 2 February 2017, claiming negligent breach of mandate by the appellant. The appellant raised a special plea of prescription, arguing the claim prescribed on 25 September 2015 (three years after the respondent had knowledge of all material facts by 26 September 2012 at the latest). The high court dismissed the special plea, finding prescription only commenced on 24 March 2014 when the SCA dismissed the appeal. The appellant appealed with leave.

• When does prescription commence to run in respect of a claim for professional negligence against attorneys?
• What is the meaning of 'debt is due' under section 12(1) of the Prescription Act 68 of 1969?
• What knowledge is required under section 12(3) of the Prescription Act – knowledge of facts or knowledge of legal conclusions?
• Whether the respondent had knowledge of all material facts necessary to institute action by 26 September 2012 or only on 24 March 2014 when the appeal was dismissed?
• Whether the judgment of the appeal court constituted an essential fact (the 'last fact') necessary to complete the cause of action?

1. The appeal is upheld with costs. 2. The order of the high court is set aside and replaced with the following: 2.1 The first defendant's special plea is upheld with costs. 2.2 The plaintiff's claim against the defendant is dismissed with costs.

Prescription commences to run under section 12(1) and (3) of the Prescription Act 68 of 1969 as soon as the creditor has knowledge of the minimum facts necessary to institute action, which includes knowledge of the identity of the debtor and the facts from which the debt arises. Knowledge of legal conclusions, legal certainty, or the outcome of appeals is not required by section 12(3). In a claim for professional negligence against attorneys arising from the drafting of an invalid antenuptial contract, the debt becomes due when the creditor knows: (a) that a mandate was given; (b) that there was a breach of mandate; (c) the facts giving rise to potential negligence; (d) that damages have been or will be suffered; and (e) that such damages were within the contemplation of the parties. The creditor need not await a final judicial determination of the validity of the contract or the outcome of appeals before the debt is deemed to be due. The date on which a debt arises may coincide with the date on which it becomes due.

The Court noted, adopting a conservative approach, that even if one were to disregard the earlier dates (6 August 2012 and 13-17 August 2012), by 26 September 2012 at the very latest, the respondent had all the necessary knowledge. The Court observed that the appellant was 'too generous' in conceding that 26 September 2012 was the latest date, as each of the earlier dates would have been dispositive of the appeal. The Court also remarked that the fact that a particular point is not mentioned in a judgment does not mean it was not considered, citing R v Dhlumayo. The Court implicitly rejected the distinction drawn by the respondent's counsel between the date a debt arises and the date it becomes due in this factual context, noting that these dates coincided in this case.

This case reaffirms and applies the established principles regarding when prescription commences to run under the Prescription Act 68 of 1969. It clarifies that section 12(3) requires knowledge only of material facts from which a debt arises, not knowledge of legal conclusions, legal certainty, or the outcome of appeals. The judgment emphasizes that a creditor cannot delay the commencement of prescription by awaiting authoritative judicial pronouncements or the resolution of appeals. It confirms that in professional negligence claims against attorneys, prescription begins to run when the client has minimum facts necessary to institute action, regardless of whether the full extent of damages is quantifiable or whether there remains legal uncertainty. The case follows and applies the reasoning in McMillan v Bate Chubb and other precedents, providing further guidance on the distinction between factual knowledge and legal knowledge in the context of prescription. It serves as a clear authority that the outcome of an appeal does not constitute a material fact necessary to complete a cause of action for professional negligence where the factual basis for the claim is already known.