This December 2024 case pertains to a legal dispute concerning the interruption of prescription in a claim for legal fees. The appellant, a firm of attorneys, sought to recover fees for services rendered to the respondents in both their personal and representative capacities. The respondents had initially engaged the attorneys to pursue a medical negligence claim on behalf of their minor daughter. The central issue was whether an amendment to cite the respondents in their representative, as well as personal, capacities introduced new parties to the proceedings, thereby affecting the running of prescription.
On 14 October 2006, the respondents signed a special power of attorney in favour of the attorney, authorising the firm to act on their behalf and on behalf of their minor daughter in a medical negligence claim against the Minister of Health. The attorney rendered legal services and, in August 2011, issued a summons against the Member of the Executive Committee for Health and Social Development in Gauteng (the MEC) for damages arising from the injuries sustained by the minor child. In May 2012, the respondents terminated the attorneys mandate and appointed another firm, to continue the litigation. The appellant attorney’s bill of costs was taxed in October 2013, and the attorneys subsequently demanded payment, which was not honoured. In March 2015, the attorneys instituted an action against the respondents for the recovery of the legal fees.
The respondents were initially only cited in their personal capacities. In August 2017, the attorneys sought to amend the particulars of claim to include the respondents in their representative capacities as guardians of their minor daughter. The respondents objected, arguing that the amendment introduced new parties and that the claim against them in their representative capacities had prescribed.
The primary legal issue was whether the amendment to cite the respondents in their representative capacities introduced new parties to the proceedings, thereby affecting the running of prescription. The court had to determine whether the initial citation of the respondents in their personal capacities constituted a misnomer or if it was separate and distinct from a citation from their representative capacities.
The court examined the facts and legal principles surrounding the interruption of prescription. It found that individuals in their personal capacities are treated as different persons from when they act in representative capacities. Therefore, the initial citation of the respondents in their personal capacities did not constitute a misnomer. The amendment to include the respondents in their representative capacities introduced new parties to the proceedings.
The court referenced the principle that for the purposes of prescription, the correct creditor must claim payment. Since the respondents in their representative capacities were not initially cited, the service of the original summons did not interrupt the running of prescription against them in those capacities. The court held that the claim against the respondents in their representative capacities had prescribed.
The court upheld the special plea of prescription, determining that the amendment to cite the respondents in their representative capacities introduced new parties to the proceedings. As a result, the claim against the respondents in their representative capacities had prescribed. The court dismissed the attorney’s claim for legal fees against the respondents in their representative capacities.
Where a minor is injured, the parents sue personally for the medical expense and other special damages for their losses, and in their representative capacity for general damages due to their child.