Groep v WJ Da Grass Attorneys and Another

• Jurisdiction: South Africa
• Judgment Date: 15 November 2017
• Citation: 2018 (5) SA 248 (WCC)

Groep v WJ Da Grass Attorneys and Another
2018 (5) SA 248 (WCC)

2018 (5) SA p248

Citation	2018 (5) SA 248 (WCC)
Case No	2417/11
Court	Western Cape Division, Cape Town
Judge	Gamble J
Heard	November 15, 2017
Judgment	November 15, 2017
Counsel	NJ Louw for the plaintiff.; D Gess for the first defendant.; M Blumberg for the second defendant.

Flynote : Sleutelwoorde

Evidence — Privilege — Legal professional privilege — Scope — Without prejudice rule — Rule protecting admissions made during settlement negotiations from subsequent disclosure, except for limited purpose of interrupting C prescription — Party, in communication made in settlement negotiations, waiving its right to rely on prescription — Interruption of prescription not arising — Communication inadmissible against party — May rely on prescription.

Evidence — Privilege — Legal professional privilege — Scope — Without prejudice D rule — Courts should be reluctant to classify matter as disconnected from settlement negotiations and hence not covered by rule.

Prescription — Extinctive prescription — Defence of — Waiver during settlement negotiations — Protected from disclosure at subsequent trial, except for limited purpose of interrupting prescription.

Headnote : Kopnota

The E question in the present case was whether the without prejudice rule — which states that communications exchanged by litigants in an attempt to settle their differences are protected from subsequent disclosure at trial and from admission into evidence — was applicable in the context of the facts. These were that Mr Groep had instituted a professional negligence claim against F Mr Da Grass because Da Grass had allowed his earlier delictual claim against Golden Arrow Bus Services to prescribe. The court consolidated the two actions for separate determination of the question whether Golden Arrow (second defendant in the consolidated action) had, in a letter written by its attorneys during pre-trial negotiations in the earlier case, waived G reliance on prescription. Golden Arrow argued that since the concession was made in an attempt to reach a settlement, it was excluded by the without prejudice rule. Counsel for Da Grass argued that the KLD case [*] — in which the Supreme Court of Appeal ruled that an acknowledgement of liability made in settlement negotiations was admissible for the limited purpose of interrupting prescription — meant that Golden Arrow's H concession was not excluded. He further argued that even if KLD was not applicable, the concession was admissible because it was not connected or relevant to the settlement negotiations.

Held

The disclosure permitted in KLD was in the context of the interruption of prescription, and did not constitute a general rule permitting a court to go I behind the protective shield provided by the without prejudice rule. Since the present case did not involve the interruption of prescription, KLD was distinguishable on the facts. (See [35].) Counsel for Da Grass' argument

2018 (5) SA p249

regarding the purported disconnection of Golden Arrow's concession from A the settlement negotiations went against the entrenched view that courts should be cautious to lift the protection offered by the without prejudice shield (see [37] – [39]). Golden Arrow's undertaking not to rely on prescription was the bedrock of its offer to settle, and not an irrelevancy unconnected to the negotiations. (See [40].) Since Golden Arrow's concession was therefore inadmissible against it, the separated issue had to be B determined in its favour, and the special plea upheld (see [41]).

Cases cited

Southern Africa

Conradie v Erasmus & Son 1951 (4) SA 29 (T): referred to C

Gcabashe v Nene 1975 (3) SA 912 (D): referred to

Kapeller v Rondalia Versekeringskorporasie van Suid-Afrika Bpk 1964 (4) SA 722 (T): referred to

KLD Residential CC v Empire Earth Investments 17 (Pty) Ltd 2017 (6) SA 55 (SCA): discussed and distinguished

KPMG Chartered Accountants (SA) v Securefin Ltd and Another 2009 (4) SA 399 (SCA) D ([2009] 2 All SA 523; [2009] ZASCA 7): referred to

Millward v Glaser 1950 (3) SA 547 (W): referred to

Naidoo v Marine & Trade Insurance Co Ltd 1978 (3) SA 666 (A): applied.

Australia E

Field v Commissioner of Railways (NSW) [1957] HCA 92 ((1957) 99 CLR 285): referred to.

England

Ofulue v Bossert [2009] 3 All ER 93 (HL): referred to F

Tomlin v Standard Telephones & Cables Ltd [1969] 1 WLR 1376 (CA) ([1969] 3 All ER 201): referred to.

Case Information

NJ Louw for the plaintiff.

D Gess for the first defendant.

M Blumberg for the second defendant. G

Separate determination, in terms of rule 33(4) of the Uniform Rules of Court, of a separated question.

Order H

A.

The separated issue is determined in favour of Golden Arrow and it is declared that:

(a)

the letter of 26 June 2008 written by Deneys Reitz to Da Grass Attorneys is inadmissible in evidence;

(b)

the special plea of prescription has not been abandoned by Golden Arrow. I

B.

Da Grass is ordered to pay the costs of suit of Golden Arrow and the plaintiff in these proceedings relating to the separation of issues.

C.

The Registrar is directed to place the consolidated actions on the rule 37(8) conference roll for management by Gamble J at the earliest available date. J

2018 (5) SA p250

Judgment

Gamble J: A

Introduction

[1] The plaintiff, Mr James Groep, is a 65-year-old working man who, on 2 September 2002, took a bus to work as he usually did. That day he B intended to travel on a bus operated by Golden Arrow Bus Services (Pty) Ltd (Golden Arrow). As the plaintiff was in the process of boarding the bus, and while still standing on the bottom step behind passengers ahead of him, it started to pull away. The plaintiff lost his footing and he was severely injured as the bus drove over his legs.

[2] The plaintiff suffered extensive orthopaedic injuries and he sought to C claim damages therefor. On 4 September 2002, only two days after the accident and while still in hospital, the plaintiff was visited by Mr William Da Grass (Da Grass), an attorney practising for his own account, who accepted the plaintiff's instructions to perform professional services in relation to the plaintiff's claim for damages. Da Grass, it seems, D professed experience in matters of this sort.

[3] On 26 April 2007, under case No 5338/2007, Da Grass issued summons out of this court on behalf of the plaintiff against Golden Arrow, alleging damages of the order of R915 000 as a consequence of his injuries. The particulars of claim stated that the plaintiff had been E conveyed as a fare-paying passenger on a Golden Arrow bus on 2 September 2002, that his statutory claim against the Road Accident Fund (the RAF) in terms of Act 56 of 1996 was limited to R25 000, that he had received that amount from the RAF and that Golden Arrow was therefore liable to the plaintiff for damages in the sum of R855 000. F The claim comprised general damages in the sum of R500 000 with the balance claimed in respect of special damages (past and future medical expenses, and past and future loss of income).

[4] Golden Arrow defended the claim and raised a special plea of prescription. It said that by no later than 2 September 2002, the plaintiff was aware of both the identity of the debtor which had caused him to G suffer damages and the facts from which that debt arose. It alleged that in the circumstances the plaintiff's debt had prescribed in terms of the Prescription Act 68 of 1969 by no later than 3 September 2005.

[5] The plaintiff filed a replication to the plea of prescription, alleging H that on 21 May 2004 he had lodged a claim for compensation against the RAF for both special and general damages. He went on to allege that in consequence of s 21 of Act 56 of 1996 he was precluded from proceeding against the owner of the bus that had caused his injuries. He claimed that on 20 June 2006 the RAF determined that his claim was limited to R25 000 in terms of s 17 of that Act and that he accordingly only I acquired knowledge of the identity of his debtor and facts giving rise to his claim against Golden Arrow on that day. He accordingly disputed that his claim had prescribed.

[6] The action initiated by Da Grass on behalf of the plaintiff did not proceed and on 6 October 2010 he withdrew as the plaintiff's attorney in J the claim against Golden Arrow.

2018 (5) SA p251

Gamble J

The claim against Da Grass and the separation of issues A

[7] The plaintiff then consulted the Cape Town firm of A Batchelor & Associates (Batchelor), attorneys who apparently specialise in personal injury claims. As a consequence of advice furnished by Batchelor the plaintiff issued a further summons on 2 February 2011 (under case No B 2417/2011), this time against Da Grass, claiming damages for professional negligence on the basis that he had permitted the plaintiff's claim against Golden Arrow to prescribe by failing to issue summons on or before 1 September 2005. It was alleged that the plaintiff had suffered damages in the amount of R1,4 million for which Da Grass was said to be liable. In that claim the general damages were quantified in the C amount of R350 000 and the balance of the claim was said to be made up of special damages as before. For the sake of convenience I shall refer to the plaintiff's claim against Golden Arrow as 'the first action' and the claim against Da Grass as 'the second action'.

[8] One of the defences raised by Da Grass in the second action included D reliance on a letter dated 26 June 2008 (written by Deneys Reitz, the attorneys who represented Golden Arrow at the time), [1] as constituting an alleged waiver by Golden Arrow of its entitlement to rely on the defence of prescription. In the light of this Batchelor requested...