Benson and Another v Walters and Others

JurisdictionSouth Africa
JudgeRabie CJ, Corbett JA, Trengove JA, van Heerden JA and Nicholas JA
Judgment Date29 September 1983
Citation1984 (1) SA 73 (A)
Hearing Date29 August 1983
CourtAppellate Division

van Heerden JA:

The first respondent (to whom I shall refer as Walters) is the only respondent opposing this appeal. He is a Cape Town attorney who acted for the appellants from January 1973 to January 1976 in regard to a number of lawsuits and also some other matters. At all times material to this judgment the F first appellant (Benson) acted on his own behalf as well as on behalf of the second appellant, a company controlled by him. Moreover, their interests are identical. In order to obviate repetition I shall therefore refer to the appellants collectively as Benson.

On 19 January 1976 Benson terminated Walters' mandate. He G called for complete accounts "for all cases handled on my behalf or on behalf or on behalf of my company", as also for the relevant files. In his reply Walters refused to hand over the files "until my bills have been paid". Thereafter Benson consulted Luck, one of the partners of a Cape Town firm of attorneys. On 26 October 1976 Luck wrote to Walters. The H relevant part of the letter reads as follows:

"We are informed that you have on hand for Mr Benson some ten or twelve matters and that your mandate in respect of these matters has been terminated. Our client requires that the files be forwarded to us forthwith and without delay.

Our client requires taxed bills of cost in respect of each file and you may give us notice of taxation in this connection.

We are informed that our client has paid you R5 000 on account of your fees and disbursements and we have been authorised to guarantee to you payment of whatever shortfall you are able to establish after taxation."

van Heerden JA

Walters replied that he considered the offer to be one "unbacked by funds, revocable, valueless and quite unacceptable". In a further letter Luck then wrote:

"You appear to be in some doubt as to whose guarantee has been furnished for payment of such fees and disbursements as may be A found due to you. We wish to make it clear that we are guaranteeing you such fees and disbursements as may be found payable to you...

We trust that you can now be under no doubt that the guarantee given you for payment of your fees and disbursements is from our firm..."

Eventually Walters handed over the files and in November 1976 he submitted a detailed account listing debits and credits. The B latter consisted of payments made by or for the credit of Benson. Excluding "costs about to be taxed" in certain matters, the account reflected a balance of R2 703 owing by Benson. The total of the credits was, however, more than the disbursements included among the debits in the account.

Luck's reaction was to require taxation of all fees charged in C the account. Probably because he was relying on Luck's guarantee, Walters did not regard the matter as urgent and it was only in January 1978 that the last bills were taxed. It suffices to say that the total amount of all the taxed bills substantially exceeded the aforesaid credits.

D When Walters demanded payment of that balance from Luck, the latter replied that since Benson was disputing the alleged indebtedness his firm was in the position of a stakeholder and that payment in terms of the guarantee could therefore not be made until such time as Walters succeeded in obtaining judgment against Benson. However, Walters had taken no action against Benson when the latter launched an application against Walters E and the other respondents in September 1979. It is unnecessary to explain why the other respondents were cited. Ultimately only Walters opposed the application. The main relief sought by Benson was an order declaring that Walters' claims for fees and disbursements had become prescribed and that Benson was F therefore not indebted to Walters in any amount.

Walters denied that the applicable period of prescription (three years) had been completed prior to the launching of the application, and in the alternative he relied on interruption of prescription. He also raised a number of defences of a technical nature which are no longer material. The Court of first instance (VAN DEN HEEVER J)* found that prescription had G started to run from the date of termination of Walters' mandate and that interruption did not occur, and rejected the other defences. The application was consequently allowed with costs. On appeal to it, a Full Bench of the Cape Provincial Division assumed that time had begun to run from the said date, but held that the running of prescription was interrupted. H Hence the appeal was upheld and the order made by VAN DEN HEEVER J was altered to read: "Application dismissed with costs". With the necessary leave Benson now appeals to this Court.

Only two questions were debated before us. The first question concerns the commencement of the running of prescription in regard to

*See Benson and Another v Walters and Another 1981 (4) SA 42 (C) - Eds.

van Heerden JA

Walters' claim (or claims) against Benson. The latter submitted that the Court of first instance made the right finding thereanent, whilst Walters contended that prescription did not begin to run prior to the dates of taxation of the various A bills. The second question was whether, if the termination of the mandate was the crucial occurrence, an interruption took place as found by the Court a quo.

Section 12 (1) of the Prescription Act 68 of 1969 provides that "prescription shall commence to run as soon as the debt is due". It is clear that the date on which a debt becomes due B does not always coincide with the date on which it arises. In List v Jungers 1979 (3) SA 106 (A) at 121, DIEMONT JA remarked that the difference relates to the coming into existence of the debt on the one hand and the recoverability thereof on the other hand. And in The Master v I L Back and Co Ltd and Others 1983 (1) SA 986 (A) at 1004 the following was said:

"The words 'debt is due' in the section (ie s 12 (1)) must be C given their ordinary meaning. It seems clear that this means that there must be a liquidated money obligation presently claimable by the creditor for which an action could presently be brought against the debtor. Stated another way, the debt must be one in respect of which the debtor is under an obligation to pay immediately."

In parenthesis it may be pointed out that, if it was intended D to formulate a principle of general application, the words "liquidated" and "money" were clearly used per incuriam, since there is no doubt that prescription runs in regard to unliquidated claims for damages and also claims not sounding in money. It should be borne in mind, however, that in Back's case the relevant obligation was indeed one to pay a liquidated E amount of money, and that the only question was whether that amount was "presently claimable".

Counsel for Walters placed strong reliance on the above passage for his submission that a debt is not due unless it is immediately exigible at the will of the creditor. Consequently, so the submission continued, a debt cannot be due if something, F requiring the consent or co-operation of a third party, remains to be done before legal proceedings may be instituted against the debtor. And since taxation is a condition precedent to the recovery of fees and disbursements by an attorney from his client, prescription could not run against the respondent before the various bills were taxed by the Taxing Master.

In Back's case this Court did not pertinently consider the G question whether the non-fulfilment of a mere procedural requirement for the institution of legal proceedings is a bar to the running of time against the creditor. An example of such a requirement, the fulfilment of which does not depend only on the will of the creditor, is to be found in s 25 (1) of the H Supreme Court Act 59 of 1959, which provides, inter alia, that no summons against a Judge in a civil action may be issued out of any Court except with the consent of that Court. However, in view of the conclusion at which I have arrived on the recoverability of an attorney's claim for costs, I do not find it necessary to consider the correctness or otherwise of the first leg of counsel's submission. I shall therefore assume in favour of Walters that a debt is not due for the purposes of s 12 (1) of the Prescription Act unless it is, or can be rendered, immediately exigible at the will of the creditor. In regard to the

van Heerden JA

commencement of the running of prescription in the present case, the cardinal question then is whether the taxation of a bill of costs is a prerequisite to the institution of legal proceedings by an attorney against his client.

It is clear that the relationship of an attorney and his client A is based on mandatum and that generally speaking, and in the absence of an agreement to the contrary, an...

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73 practice notes
  • Trinity Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd
    • South Africa
    • Invalid date
    ...Municipality v Molloy 1998 (2) SA 735 (SCA) ([1998] 1 All SA140; [1997] ZASCA 112) at 742E–743B; Benson and Another v Walters andOthers 1984 (1) SA 73 (A) at 86C; and The Master v IL Back & Co Ltd andOthers 1983 (1) SA 986 (A) (IL Back) at 1005G.42See Webb v Van der Wath 1914 OPD 17 at 19; ......
  • Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd
    • South Africa
    • Invalid date
    ...Africa v Craven NO (1888) 5 HCG 112 Baylis's Trustee v Cape of Good Hope Bank (1886) 4 SC 439 Benson and Another v Walters and Others 1984 (1) SA 73 (A) Boland Bank Ltd v The Master and Another 1991 (3) SA 387 (A) Brink NO v The High Sheriff and Others (1895) 12 SC 414 British and North Eur......
  • Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd
    • South Africa
    • Invalid date
    ...cited in the judgment of the Court, counsel for the parties referred to the following: Benson and Another v Walters and Others 1984 (1) SA 73 (A) Boland Bank Ltd v RoupJ WacksJ Kaminer & Krige 1989 (3) SA 912 F (C) at 914B-I Curtis-Setchell & McKie v Koeppen 1948 (3) SA 1017 (W) at 1020 Fri......
  • Primavera Construction SA v Government, North-West Province, and Another
    • South Africa
    • Invalid date
    ...Ltd 1999 (3) SA 924 (SCA): referred to Benjamin v Gurewitz 1973 (1) SA 418 (A): followed H Benson and Another v Walters and Others 1984 (1) SA 73 (A): Blaas v Athanassiou 1991 (1) SA 723 (W): referred to Cape Town Municipality and Another v Allianz Insurance Company Ltd 1990 (1) SA 311 (C):......
  • Request a trial to view additional results
72 cases
  • Trinity Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd
    • South Africa
    • Invalid date
    ...Municipality v Molloy 1998 (2) SA 735 (SCA) ([1998] 1 All SA140; [1997] ZASCA 112) at 742E–743B; Benson and Another v Walters andOthers 1984 (1) SA 73 (A) at 86C; and The Master v IL Back & Co Ltd andOthers 1983 (1) SA 986 (A) (IL Back) at 1005G.42See Webb v Van der Wath 1914 OPD 17 at 19; ......
  • Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd
    • South Africa
    • Invalid date
    ...Africa v Craven NO (1888) 5 HCG 112 Baylis's Trustee v Cape of Good Hope Bank (1886) 4 SC 439 Benson and Another v Walters and Others 1984 (1) SA 73 (A) Boland Bank Ltd v The Master and Another 1991 (3) SA 387 (A) Brink NO v The High Sheriff and Others (1895) 12 SC 414 British and North Eur......
  • Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd
    • South Africa
    • Invalid date
    ...cited in the judgment of the Court, counsel for the parties referred to the following: Benson and Another v Walters and Others 1984 (1) SA 73 (A) Boland Bank Ltd v RoupJ WacksJ Kaminer & Krige 1989 (3) SA 912 F (C) at 914B-I Curtis-Setchell & McKie v Koeppen 1948 (3) SA 1017 (W) at 1020 Fri......
  • Primavera Construction SA v Government, North-West Province, and Another
    • South Africa
    • Invalid date
    ...Ltd 1999 (3) SA 924 (SCA): referred to Benjamin v Gurewitz 1973 (1) SA 418 (A): followed H Benson and Another v Walters and Others 1984 (1) SA 73 (A): Blaas v Athanassiou 1991 (1) SA 723 (W): referred to Cape Town Municipality and Another v Allianz Insurance Company Ltd 1990 (1) SA 311 (C):......
  • Request a trial to view additional results
1 books & journal articles
  • The Prescription Period Applicable to a Debt Secured by Notarial Bond
    • South Africa
    • Juta Stellenbosch Law Review No. , May 2019
    • 27 May 2019
    ...orpe Hellerman D eutsch (Pty) Ltd 1991 1 SA 525 (A) 532H; The Master v IL Bac k & Co Ltd 1983 1 SA 986 (A) 1004G-H; Ben son v Walters 1984 1 SA 73 (A) 82C-E.47 Kotzé v Ongesk iktheidsfond s van die Universiteit va n Stellenbosch 1996 3 SA 252 (C) 258G. DEBT SECURED BY NOTARIAL BOND 385© Jut......

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