Macleod v Kweyiya

The respondent was injured in a motor vehicle accident in 1988 at the age of four and became paraplegic. Her mother instructed the appellant, an attorney, to institute damages claims on her behalf against statutory insurers. The claims were settled between 1996 and 1997 for a total amount of R124 500, which the respondent’s mother accepted. In 1998 the appellant rendered a full account to the mother. The respondent attained majority in 2005. In April 2006, after a dispute with her mother, the respondent received documentation relating to the settlement for the first time. In April 2009 she sued the appellant, alleging negligent under-settlement of her claim. The appellant raised a special plea of prescription, contending that the respondent had actual or constructive knowledge of the debt long before 2006.

The appeal was dismissed with costs, and the dismissal of the special plea of prescription by the High Court was confirmed.

The case is significant for clarifying the application of s 12(3) of the Prescription Act, particularly the concept of constructive knowledge and the distinction between innocent and negligent inaction. It reaffirms that defendants bear the full onus of proving prescription and that no adverse inference arises merely from a plaintiff’s failure to testify unless a prima facie case has been established. The judgment is important in professional negligence claims against attorneys.