A notary negligently drafted an antenuptial contract in December 1998.  The antenuptial contract was declared void from inception in a judgment delivered in October 2016.  The court held that prescription began to run from the date in May 2014 when the claimant was told by his attorneys of the problems with the contract.

In order to succeed in an action for damages against an attorney for professional negligence, a claim is required to allege and prove: (a) a mandate given to and accepted by the attorney; (b) a breach of the mandate; (c) negligence in the sense that the attorney did not exercise the degree of skill, knowledge and diligence expected of an average practising attorney; (d) that the claimant has suffered damages; and (e) that the damages were within the contemplation of the parties when the mandate was extended.

According to section 12 of the Prescription Act, 1969 prescription commences to run as soon as the debt is due. A debt is not deemed to be due until the creditor has knowledge of the identity of the debtor and the facts from which the debt arises.  Section 12 requires knowledge only of the material facts for the prescriptive period to begin to run.  It does not require knowledge of the legal consequences.

Accordingly the claimant’s cause of action was completed as soon as he was informed by attorneys on 9 or 12 May 2014 that there was a problem with drafting of the antenuptial contract.  It was manifest at that stage that he had suffered damages as a result of the error.  The claimant only instituted action on 13 October 2017 more than three years later.  The claim had therefore prescribed.  Prescription did not only commence on the date of the judgment declaring the antenuptial contract invalid in October 2016 even if the claimant had not appreciated prior to that the legal consequences flowing from the incorrectly drawn antenuptial contract.

The message is that when you realise that you have suffered a loss because of someone else’s negligence make sure you sue as soon as possible to beat the prescription period.

[McMillan v Bate Chubb & Dickson Inc [2021] ZASCA 45 (15 April 2021)]