McMillan v Bate Chubb & Dickson Incorporated

In 1998 the appellant, Bruce Gordon McMillan, mandated the respondent law firm to draft an antenuptial contract excluding community of property and certain business assets from accrual. The firm drafted an antenuptial contract which was later found to contain contradictory clauses. During divorce proceedings instituted by McMillan’s wife, the validity of the antenuptial contract was challenged. In May 2014 the respondent advised McMillan that there was a potential error in the contract, that he might have a claim against the firm, and withdrew due to a conflict of interest. In October 2016 the High Court (Plasket J) declared the antenuptial contract void ab initio, resulting in McMillan’s marriage being treated as in community of property and significant financial loss. McMillan sued the respondent attorneys for breach of mandate in October 2017. The respondent raised a special plea of prescription.

The appeal was dismissed with costs. The special plea of prescription was upheld and the appellant’s claim was found to have prescribed.

The case reaffirms South African prescription law principles, particularly that prescription under section 12(3) of the Prescription Act runs from knowledge of material facts, not from knowledge of legal conclusions or confirmation by a court. It is important for professional negligence claims against attorneys, emphasizing early vigilance by clients once potential negligence is disclosed.