What happens to my Claim when I die?

If you you have not yet heard of prescription in our law you can count yourself fortunate, because in most cases people don't learn the meaning of this term under good circumstances. While in rare instances it can mean somebody acquiring ownership of immovable property after having occupied it for 30 years in most cases it means that somebody that has taken more than 3 years to finally decide to sue a debtor or wrongdoer has to find out that he can no longer do so, because the debt has been extinguished by the lapse of that period.

In my career I have learnt that one of the most stressful situations in which you can find yourself is being forced to get the Sheriff out of his normal routine to effect service of a summons immediately upon receipt- after having to literally beg a disinterested Clerk of the Court to just issue that same thing earlier that day- because the client has brought the case to you on the day before the claim prescribes.

Back then I worked for another Attorney and having my day disrupted was standard procedure. Now that I work for myself and find myself overcommitted on a daily basis I will most likely not accept such an instruction- unless maybe it comes with a large enough deposit...

 So... in the case of property being just occupied without anyone else laying claim to it the occupier acquires ownership after 30 years? Now- what if somebody wanted to claim ownership, but could not because she passed away before she could do so? This question got asked in the Johannesburg High Court matter Katha v Pillay NO and Others 2024 (1) SA 159 (GJ) where the Executors in the claimant's estate wanted to claim ownership on behalf of the deceased- who had passed away just before the prescription period had lapsed. Now- the guidance offered by the Prescription Act 68 of 1969 merely says that prescription can be delayed in the claimant was prevented by a "superior force" to institute her claim. So- did death count as such a "superior force"? 

Acting Judge Moultrie of the Johannesburg High Court has ruled that it indeed does. The Court further ruled in this matter that prescription was interrupted until an executor was appointed in the late claimant's estate.

Look further down in this Act and you will find in Section 13(h) thereof that this approach is already established by the Act in respect of debts. If a Plaintiff passes away before he can sue the Defendant the prescription of his claim is interrupted until an Executor is appointed. I can tell you- with as long as it takes the Master to appoint Executors nowadays prescription will be halted for a very very long time in such cases...

Now- what happens where somebody has already sued, but dies before the matter is finalised? Well... the matter does not automatically die with the litigant. In this case the decision to proceed with the matter or to withdraw same (if the deceased was the Plaintiff) lies with the Executor. In the case of deceased Defendants the Executors may find themselves forced to continue defending a matter even though they would not want to...

In deciding on whether or not to continue with a court battle started by a deceased person the Executor has to take into account the views of heirs and legatees in the estate as the costs of litigation shall affect their inheritance. 

Do you think your surviving relatives will attach the same value to whatever it is for which you have started an expensive fight..?

Extraordinary Attorney Woo: The Testimony of a witness versus the Submissions made by an Attorney

 

L A Law went by me during the 80's without me ever feeling the need to see even an episode of it.

Somehow Ally McBeal got me hooked in 1997. Then there was the Afrikaans legal drama "Fynskrif"...

 Now- Extraordinary Attorney Woo has found a devoted fan in me.

South Korean actress Eunbin Park plays an autistic young attorney Woo Young Woo in this series who is hired by a large law firm and proves her worth from day 1. Along with her social awkwardness and her seemingly never-ending battle with the revolving door she displays a brilliant legal mind with creative problem solving that amazes her colleagues.

Still- being on the autistic spectrum draws negative attention. Surprisingly enough the first cheap shot at her autism is taken only in the third episode. This was made by a Prosecutor who asked an expert witness the question- Should the submissions of this Attorney bear the same weight in Court as the testimony of the Accused (who is also autistic).

If you read this question and actually wonder what the answer is thereto you should actually read this blog post to learn the answer. This question was never answered in the episode. Attorney Woo did resign because of it, though...

It is true that for a witness' testimony to be even allowed in Court the witness has to be sober and sound of mind. If there are ever concerns about a witness' capacity to testify the Court requests for an assessment to be made by a medical doctor or psychologist before that witness is questioned in trial.

Now what about the Attorney? The thing is- the Attorney does not testify.

The Attorney does ask questions- and as long as there are no objections to the questions they are allowed. The Attorney also makes submissions and delivers arguments. These submissions and arguments are based on the facts that have been placed on record through the witnesses' testimony and any other evidence that is used during the trial. 

In considering the Attorney's submissions and arguments the Judge or Magistrate in any event has to test them against existing law. An Attorney's mental capacity would net even come into consideration when that happens. Think about it- An Attorney who does not know and understand the Law shall not even be able to make any valid submissions to begin with. 

A witness' testimony, however, has to be considered for credibility and reliability.  A witness does not need to know the law in order to testify. In fact- the most credible witnesses know nothing about the law to begin with. It is the testimony of those with legal knowledge that you should watch out for...

One will never know for certain whether a witness tells the truth. The best the Court can do is to at least make certain that the person who testifies before it knows what he is saying and understands what it is to speak the truth. 

That Prosecutor is himself a lawyer and should know this. 

Well... I have to watch the next episode to see if Young Woo returns to work...

If you have any other questions about what you see and hear on legal dramas you can ask me in the comment section.