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[2015] ZASCA 81
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Absa Bank Limited v Keet (817/2013) [2015] ZASCA 81; 2015 (4) SA 474 (SCA); [2015] 4 All SA 1 (SCA) (28 May 2015)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 817/2013
In
the matter between:
ABSA
BANK
LIMITED
................................................................................................
APPELLANT
and
ANDRÉ
KEET
............................................................................................................
RESPONDENT
Neutral
citation
:
Absa
Bank v Keet
(817/13)
[2015] ZASCA 81
(28 May 2015)
Coram:
Maya, Bosielo, Wallis, Zondi JJA and
Meyer AJA
Heard:
11 May 2015
Delivered:
28 May 2015
Summary:
Prescription
-
A
claim under the
rei
vindicatio
not a debt in terms of
Chapter III of the
Prescription Act 68 of 1969
– does not
prescribe after three years.
ORDER
On
appeal from:
North
Gauteng
High
Court, Pretoria (Fabricius J sitting as court of first instance):
1.
The appeal succeeds and the order of the high court upholding the
special plea of prescription is substituted with the following:
‘
The
special plea of prescription is dismissed.’
2.
No order is made as to costs.
JUDGMENT
Zondi
JA
(Maya, Bosielo, Wallis JJA and
Meyer AJA concurring):
[1]
The
main issue in this appeal is whether a claim under the
actio
rei vindicatio
becomes prescribed after three years by virtue of the provisions of
s 10 of the Prescription Act 68 of 1969 (the
Prescription Act).
The
court a quo (Fabricius J) held that it did. In so doing he
rejected the view of Blignault J in
Staegemann
v Langenhoven
[1]
that
such a claim is not a debt for the purposes of Chapter III of the
Prescription Act and
can accordingly not be defeated by a plea of
extinctive prescription.
[2]
The issue arose in the following circumstances: Eastvaal Motors
Limited (‘Eastvaal Motors’) sold a tractor vehicle
(‘vehicle’) to the respondent, André Keet, in
terms of a written instalment sale agreement (‘the agreement’)
concluded by the parties on 26 September 2003. Eastvaal Motors’
right, title and interest in and to the agreement was ceded
to the
appellant, Absa Bank Limited, on 26 September 2003. Thereafter the
respondent took delivery of the vehicle.
[3]
It was an express term of the agreement that ownership of the vehicle
would not pass to the respondent until all amounts owing
under the
agreement had been paid in full. The purchase price would be paid by
way of a specified number of instalments commencing
on 1 November
2003 and ending on 1 November 2007. It was a further term of the
agreement that, if the respondent failed to comply
with any
provisions of the agreement, or failed to make any payment in terms
thereof, the appellant would be entitled to the return
and possession
of the vehicle. In that event the appellant would also be entitled to
demand payment of any arrear instalments.
[4]
On 18 November 2011 the appellant instituted action against the
respondent in the North Gauteng High Court. It alleged that
the
respondent was in breach of the agreement in that he had defaulted in
paying the instalments due and that it had cancelled
the agreement.
The summons was served on the respondent on 14 December 2011. In that
action the appellant sought confirmation of
its cancellation of the
agreement and the repossession of the vehicle.
[5]
The respondent defended the action, and apart from pleading over on
the merits of the appellant’s claims, delivered a
special plea
in which he alleged that the appellant’s claim for payment of
arrears had become prescribed under the
Prescription Act. In
his
special plea the respondent alleged that the agreement on which the
appellant sued would have come to an end on 1 November
2007, which is
the date on which he contended the amount alleged to be outstanding
became due and payable. The respondent contended
that in terms of
s
11
of the
Prescription Act, ‘any
claim for arrears’
against the respondent pursuant to the agreement prescribed on 31
October 2010. For that reason, he contended
that it was not open to
the appellant to cancel the agreement and recover possession of the
vehicle. The appellant did not replicate
to the respondent’s
special plea. The special plea was set down separately. On the basis
of an assumption that what was pleaded
by the respondent in his
special plea, though inelegantly expressed, covered the point, the
issue for determination was whether
the appellant’s claim for
repossession of the vehicle had become prescribed.
[6]
The court a quo upheld the special plea with costs. It did so on the
basis of its finding that
Staegemann
,
in which it was held that a vindicatory claim being a claim to
ownership in a thing and not a claim for payment of a debt, does
not
prescribe after three years, was wrongly decided.
[2]
In
upholding the plea it followed cases such as
Evins
v Shield Insurance Co Ltd
;
[3]
Barnett
v Minister of Land Affairs
;
[4]
Grobler
v Oosthuizen
;
[5]
and
Leketi
v Tladi NO
.
[6]
(More
on these cases will be said later in the judgment). It reasoned that
if
Staegemann
were
correct, ‘the Bank could withhold its demand for the tractor
for another decade or even longer, and then demand return
of the
vehicle so that it could calculate its damages’. It went on to
refer to a recent decision of this Court in
Bester
v Schmidt Bou Ontwikkelings CC
,
[7]
in
which the correctness of
Barnett
and
the decisions that followed it, was doubted and in which this Court
found the reasoning in
Staegemann
attractive
and quite convincing. This statement did not persuade the court a quo
to adopt the reasoning in
Staegemann
.
[7]
The parties reached a settlement shortly before the hearing so that
the respondent was not represented. In view of the nature
of the
issues involved, this Court asked the Free State Bar Council to
appoint an amicus curiae and we are grateful to him. At
the hearing
of this appeal this Court requested the appellant and the amicus
curiae to address it on two preliminary points. The
first was whether
prescription of the vindicatory claim had been pertinently raised in
the pleadings.
[8]
The
second was whether the subsequent settlement of the matter by the
parties and the withdrawal by the respondent of his opposition
to the
appeal had not rendered the appeal moot by virtue of the provisions
of
s 16(2)(
a
)(i)
of the
Superior Courts Act 10 of 2013
.
[9]
With
regard to the first point the parties were agreed that nothing turned
on it as the issue was fully ventilated when the special
plea was
argued in the court a quo and that its judgment dealt with it and it
is an issue in respect of which leave to appeal to
this Court was
granted, submitted the appellant. As to the second point, the
appellant urged on this Court to hear the appeal notwithstanding
its
mootness on the ground that it raises a discrete legal issue of
public importance.
[8]
As a general principle, courts should not decide issues that are of
solely academic interest. This principle is trite,
[10]
being
one of long standing.
[11]
Notwithstanding
its mootness, I am of the view that this appeal is a proper matter
for this Court to exercise its discretion in
favour of hearing
it.
[12]
The
issue of the legal nature of a vindicatory claim and whether it gives
rise to a debt that is subject to extinctive prescription
has been
decided differently by different divisions of the high court. The
recent decision of
Staegemann
on the period of extinctive prescription applicable to the
vindicatory claim departs from the earlier decision in what is now
the Gauteng Local Division in
Evins
,
which received this Court’s approval in
Barnett.
That
decision was in turn followed by this Court in
Grobler
and
Leketi
.
This Court in
Bester
doubted the correctness of all three of these decisions of this Court
and expressed the view that a day would arise when this Court
would
have an opportunity to reconsider this vexing legal question. This is
that day. Undoubtedly this appeal raises a discrete
legal issue of
public importance ‘that would affect matters in the future and
on which the adjudication of this Court is
required . . .’
[13]
Moreover,
the issue is not a factual dispute between the parties, but rather a
matter of law that will affect many litigants beyond
the confines of
this case.
[9]
I turn now to consider the merits of the appeal, namely whether the
appellant’s claim for the repossession of its vehicle
is a
‘debt’, which for the purposes of the
Prescription Act
prescribes
after three years. The court a quo dismissed the
appellant’s claim for repossession of the vehicle on the basis
that it was
a ‘debt’ as contemplated in
s 11
of the
Prescription Act and
thus prescribed after three years. As I have
already stated above, it reached its conclusion on the basis that
Staegemann
was wrongly decided.
[10]
Counsel for the appellant submitted that a vindicatory claim is
clearly a claim based on ownership of a thing and that it cannot
be
described as a claim for satisfaction of a debt. He argued that this
Court should follow the reasoning in
Staegemann
,
which he submitted, was correct. The amicus curiae submitted that if
the legislature in its wisdom, had wanted to stipulate the
period of
prescription in respect of a vindicatory claim, for which neither the
1943
Prescription Act nor the
present
Prescription Act provided
, it
could have done so. But it chose not to do so, because, he submitted,
it intended the prescription period in respect of a vindicatory
claim
to be decided on a case by case basis. But when asked by the Court
whether that proposition reflected a correct approach
to construing a
statute such as the
Prescription Act, he
was constrained to concede
that the construction he contended for was incorrect. His alternative
argument was that for the sake
of consistency this Court should in
construing the Prescription Act interpret the concept ‘debt’
in the same manner
as it was interpreted in cases such as
Barnett
;
Desai
N.O.
v
Desai
;
[14]
;
and
Electricity
Supply Commission v Stewarts & Lloyds of SA (Pty) Ltd
.
[15]
[11]
Staegemann
was
a case on all fours with the present one. The applicant claimed the
return of his vehicle from the first respondent, who had
bought it
from a third party, to whom it was fraudulently sold by the third
respondent. The first respondent resisted the applicant’s
claim
contending that the claim had prescribed. This plea was rejected
after a thorough review of the authorities.
[12]
It was pointed out by Holmes AJA in
Electricity
Supply Commission
at
344F-H with reference to the
Shorter
Oxford
English Dictionary
and also to
Leviton
& Son v De Klerk’s Trustee
[16]
that
a debt is ‘that which is owed or due; anything (as money, goods
or services) which one person is under obligation to
pay or render to
another and ‘whatever is due –
debitum
– from any obligation’. That definition was thereafter
adopted and extended by this Court in
Desai
N.O.
at
146I-J where a ‘debt’ was said to have ‘a wide and
general meaning, and includes an obligation to do something
or
refrain from doing something’.
The
notion that a vindicatory claim constituted a debt subject to
extinctive prescription has its origins in the following statement
in
Evins
(at
1141F-G):
‘
The
word “debt” in the
Prescription Act must
be given a wide
and general meaning denoting not only a debt sounding in money which
is due, but also, for example, a debt for
the vindication of
property.’
[13]
It
is by no means clear what King J intended by this dictum.
Evins
dealt
with a motor vehicle accident claim and the issue was whether a claim
for personal injuries and a claim for damages for loss
of support
arising from the death of the plaintiff’s husband were separate
claims or a single debt for the purposes of prescription.
No issue of
a vindicatory claim arose for consideration. As the judge was
contrasting a claim sounding in money with a claim for
delivery of
property, he may have meant nothing more than that both types of
claims could give rise to a debt. His statement was
not approved when
the case came before this Court in
Evins
[17]
and
there is a passage in the judgment of Corbett JA (at 842E-F) that
seems inconsistent with it. There, in dealing with what constitutes
a
debt for purposes of prescription, Corbett JA said:
‘…
it
is clear that the “debt” is necessarily the correlative
of a right of action vested in the creditor, which likewise
becomes
extinguished simultaneously with the debt. (Cf
Erasmus
v Grunow en ‘n Ander
1978 (4) SA
233
(O) at 245E.)’
[14]
In
Erasmus
v Grunow
,
Van Heerden J had said that ‘a right of action’ and ‘a
debt’ were two poles of an obligation’ (‘’n
Vorderingsreg en ‘n skuld is egter twee pole van ‘n
verbintenis’.) In other words, they are the opposite poles
of a
single obligation.
[18]
An
obligation for these purposes could arise from contract, delict or
ex
lege
as Van Heerden AJA made clear in
Oertel
,
[19]
where
he said that a debt is an obligation to do something, either by
payment or the delivery of goods or services. It is one pole
of an
obligation, which in this context encompasses a right to receive and
a corresponding duty to give. Significantly absent from
this
exposition is any suggestion that a claim arising other than from an
obligation of this character, such as a claim to enforce
a real
right, is a debt.
[15]
In
Barnett
this Court was confronted with a special plea of prescription raised
by certain persons who had occupied and built structures on
State
land. The occupiers’ argument in support of the plea relied on
s 12(3)
of the
Prescription Act. They
contended that the prescription
period of three years commenced to run, at the latest, when the
government acquired knowledge of
the ‘identity of the debtor
and of the facts upon which the debt arose’; the ‘debt’
being the vindicatory
relief which the government sought to enforce.
[16]
Brand JA writing for this Court stated at para 19 of the judgment
with reference to
Evins
that
he was prepared to accept that the vindicatory relief which the
government sought to enforce constituted a ‘debt’
as
contemplated by the
Prescription Act. He
said that he could see no
reason why it would not include a claim for the enforcement of an
owner’s right to property. But
then the prescription point was
dismissed on the basis of application of the concept of a continuous
wrong.
[20]
[17]
Grobler
concerned the question whether a claim to recover the
proceeds of certain insurance policies ceded to the appellant’s
late
husband, had prescribed. The high court held on the basis of the
application of the pledge theory that what the applicant there
sought
to enforce was a vindicatory claim that became prescribed after 30
years. This Court rejected that finding. At para 19 this
Court
stated:
‘
.
. . the prescription period of 30 years in
s 1
of the
Prescription
Act relates
to acquisitive prescription. For extinctive prescription,
the period can, in the present context, only be three years provided
for in
s 11
(d)
of the Act’.
It
referred to
Evins
and
Barnett
in
support of that proposition.
In the end
nothing turned on the prescription point and the case was decided on
other grounds.
[18]
In
Leketi
the
appellant alleged that his grandfather had fraudulently caused
certain property to be registered in his own name instead of
in the
name of the appellant’s late father. His claim was directed at
setting aside the registration in the name of his grandfather
and
then procuring transfer of the property from his late father’s
estate. The claim was not a vindicatory claim and accordingly
the
reference to
Barnett
was
obiter and irrelevant to the decision, which turned on the
appellant’s knowledge of the allegedly fraudulent transfer.
[19]
In
Schmidt
Bou Ontwikkelings
the
question whether a vindicatory claim gives rise to a ‘debt’
which prescribed after three years, was raised, but
not decided by
this Court. But the reasoning in
Staegemann
in
which the correctness of
Barnett
was doubted, was found attractive and quite convincing and an
inclination was expressed to revisit the correctness of the decisions
in
Barnett
;
Grobler
;
and
Leketi
to the effect that such a claim is extinguished by prescription after
three years.
[21]
[20]
In my view, there is merit in the argument that a vindicatory claim,
because it is a claim based on ownership of a thing, cannot
be
described as a debt as envisaged by the
Prescription Act. The
high
court in
Staegemann
(para
16) was correct to say that the solution to the problem of the
prescription is to be found in the basic distinction in our
law
between a real right (
jus
in re
)
and a personal right (
jus
in personam
).
Real rights are primarily concerned with the relationship between a
person and a thing and personal rights are concerned with
a
relationship between two persons.
[22]
The
person who is entitled to a real right over a thing can, by way of
vindicatory action, claim that thing from any individual
who
interferes with his right. Such a right is the right of ownership.
If, however, the right is not an absolute, but a relative
right to a
thing, so that it can only be enforced against a determined
individual or a class of individuals, then it is a personal
right.
[23]
[21]
That distinction between real rights and personal rights has
consistently been recognised in our case law
[24]
and
was recently explained by this Court in
National
Stadium South Africa (Pty) Ltd v Firstrand Bank Ltd
[25]
para
31:
‘
The
first concerns the distinction between real and personal rights. Real
rights have as their object a thing (Latin:
res
;
Afrikaans: saak). Personal rights have as their object performance by
another, and the duty to perform may (for present purposes)
arise
from a contract. Personal rights may give rise to real rights; for
instance, a personal obligation to grant someone a servitude
matures
into a real right on registration. Real rights give rise to
competencies: ownership of land entitles the owner to use the
land or
to give others rights in respect thereof. Others may say that
ownership consists of a bundle of rights, including the right
to use
the land, but it does not really matter who is right on this point.’
[22]
Wessels points out at 3-4 that:
‘
In
a real right we have the owner in direct relation to the thing he
claims, but in a personal right the claimant must claim his
right to
a thing or act indirectly through an intermediate person called a
debtor. The person who claims from his debtor money
lent has no
absolute right to particular coins, but he has the right of
compelling his debtor to pay him what is due to him by
virtue of the
loan. The debtor is under a legal obligation to pay his creditor what
is due to the latter.’
[23]
The obligation which the law imposes on a debtor does not create a
real right (
jus
in rem
),
but gives rise to a personal right (
jus
in personam
).
In other words, an obligation does not consist in causing something
to become the creditor’s property, but in the fact
that the
debtor may be compelled to give the creditor something or to do
something for the creditor or to make good something in
favour of the
creditor.
[26]
[24]
The manner in which the
Prescription Act is
structured, reflects this
distinction ─ acquisitive prescription of real rights is dealt
with in Chapters 1 and 2 and the
extinctive prescription of
obligations is dealt with in Chapter 3. The reason for arranging the
Prescription Act in
this manner was explained by Professor J C de
Wet, the author and draftsman of the present
Prescription Act, in
a
full memorandum he submitted to the Legislature. The memorandum was
published in February 1979 in a work called
Opuscula
Miscellanea
.
[27]
Professor
de Wet had this to say at p 77 para 5:
‘
Whether
prescription is concerned with a single legal concept with two
branches, viz. acquisitive and extinctive prescription, or
whether
there are in fact two distinct legal concepts is an old controversy.
It appears to me that one is actually concerned with
two distinct
legal concepts and even the expressions, “acquisitive”
and “extinctive” prescription are somewhat
unfortunate
and misleading. It is true that the passage of time plays a role in
both legal concepts and that certain circumstances,
connected to the
person against whom “prescription runs”, apply to both
legal concepts, but nonetheless the two legal
concepts rest on
different foundations. In the case of acquisitive prescription one is
concerned with real rights, which do not
concern simply the
acquisition of a right by the one and the loss of a right by the
other, but also outward appearances that may
affect third parties in
their relationships with the one or the other. The rationale for the
acquisition of real rights by prescription
is the perpetuation of a
factual situation that has existed for a long time, and upon which
third parties may rely in their relationships
with the ostensible
rightful owner. In the case of extinctive prescription one is more
specifically concerned with the relationship
between creditor and
debtor and prescription serves in the first instance to protect the
debtor against claims that perhaps never
came into existence or had
already been extinguished. The obligation is by its nature and
substance a temporary relationship that
is destined to terminate
through performance and moreover a relationship between creditor and
debtor in which third parties are
only indirectly involved. A real
right, by contrast, is a relationship of a durable nature, that can
be maintained against anyone
and everyone, and which can impede
commerce if outsiders cannot with confidence rely on the appearance
thereof.’
[28]
(My
own translation)
[25]
In the circumstances, the view that the vindicatory action is a
‘debt’ as contemplated by the
Prescription Act which
prescribes after three years is, in my opinion, contrary to the
scheme of the Act. It would, if upheld, undermine the significance
of
the distinction which the
Prescription Act draws
between extinctive
prescription, on the one hand and acquisitive prescription on the
other. In the case of acquisitive prescription
one has to do with
real rights. In the case of extinctive prescription one has to do
with the relationship between a creditor and
a debtor. The effect of
extinctive prescription is that a right of action vested in the
creditor, which is a corollary of a ‘debt’,
becomes
extinguished simultaneously with that debt.
[29]
In
other words, what the creditor loses as a result of operation of
extinctive prescription is his right of action against the debtor,
which is a personal right. The creditor does not lose a right to a
thing. To equate the vindicatory action with a ‘debt’
has
an unintended consequence in that by way of extinctive prescription
the debtor acquires ownership of a creditor’s property
after
three years instead of 30 years that is provided for in
s 1
of the
Prescription Act. This
is an absurdity and not a sensible
interpretation of the
Prescription Act.
[30
]
[26]
I am aware that we are differing from a
view that has been expressed in three judgments of this court, albeit
in my view none of
those decisions was dependent upon the correctness
of that view for the ultimate result. However, to the extent that
this view
could be seen as the ratio decidendi of those decisions, I
would hold that it was incorrect. I am aware of the restricted basis
upon which this Court departs from its earlier decisions, but am of
the view that this is one of those rare cases in which it is
appropriate to do so. First, the decision (
Barnett
)
is of reasonably recent origin so it cannot be said that people have
organised their affairs on the basis that it was correct.
Second, the
author of the decision has indicated that it should be reviewed by
this Court. Third, the perpetuation of that view
gives rise to
absurdity in the construction of an important statute and would cause
uncertainty in a multitude of relationships.
[27]
In the circumstances, the court a quo erred in upholding the special
plea on the basis of its finding that a claim for delivery
of a
tractor was a ‘debt’ that becomes prescribed after three
years by virtue of the provisions of
s 10
of the
Prescription Act.
>
[28]
In the result the following order is made:
1. The appeal
succeeds and the order of the high court upholding the special plea
of prescription is substituted with the following:
‘
The
special plea of prescription is dismissed.’
2. No order is made
as to costs.
_______________________
D
H Zondi
Judge
of Appeal
Appearances
For
the Appellant: N C De Jager
Instructed
by:
Webber
Wentzel Attorneys, Cape Town
c/o
Matsepes Inc Attorneys, Bloemfontein
Amicus Curiae: L le
R Pohl SC
[1]
Staegemann
v Langenhoven & others
2011 (5) SA 648
(WCC).
[2]
See also J Saner
Prescription
in South African Law
,
(Service Issue 21 – September 2014) at 3-40─3-41 in
which the reasoning in
Staegemann
was
criticised.
[3]
Evins
v Shield Insurance Co Ltd
1979 (3) SA 1136
(W) at 1141F-G.
[4]
Barnett
& others v
Minister
of Land Affairs & others
2007
(6) SA 313
;
[2007] ZASCA 95
(SCA) para 19.
[5]
Grobler
v Oosthuizen
2009 (5) SA 500
;
[2009] ZASCA 51
(SCA) para 18.
[6]
Leketi
v Tladi NO & others
[2010]
3 All SA 519
;
[2010] ZASCA 38
(SCA) paras 8 and 21.
[7]
Bester
NO & others v Schmidt Bou Ontwikkelings CC
2013 (1) SA 125
;
[2012] ZASCA 125
(SCA) para 15.
[8]
Section 17(2)
of the
Prescription Act.
[9
]
Section 16(2)
(a)
(i)
provides:
‘
When
at the hearing of an appeal the issues are of such a nature that the
decision sought will have no practical effect or result,
the appeal
may be dismissed on this ground alone.’
[10]
Legal
Aid South Africa v Mzoxolo Magidiwana & others
2015
(2) SA 568
;
[2014] ZASCA 141
(SCA) para 2.
[11]
Coin
Security Group v SA National Union for Security Officers
2001
(2) SA 872
;
[2000] ZASCA 48
(SCA) para 7.
[12]
Natal
Rugby Union v Gould
1999
(1) SA 432
;
[1998] ZASCA 62
(SCA);
Land
en Landbouontwikkelingsbank van Suid-Afrika v Conradie
2005
(4) SA 506
;
[2005] ZASCA 15
(SCA) and
The
Merak S: Sea Melody Enterprises SA v Bulktrans (Europe) Corporation
2002
(4) SA 273; [2002] ZASCA 18 (SCA).
[13]
Qoboshiyane
NO v Avusa Publishing Eastern Cape (Pty) Ltd & others
2013
(3) SA 315
;
[2012] ZASCA 166
(SCA) para 5.
[14]
Desai
N.O.
v
Desai & others
1996 (1) SA 141; [1995] ZASCA 113 (A).
[15]
Electricity
Supply Commission v Stewarts & Lloyds of SA (Pty) Ltd
1981 (3) SA 340 (A).
[16]
Leviton
& Son v De Klerk’s Trustee
1914 CPD 685
at 691.
[17]
Evins
v Shield Insurance Co Ltd
1980
(4) SA 814 (A).
[18]
Cape
Town Municipality and another v Allianz Insurance Co Ltd
1990 (1) SA 311
(C) at 331C-E.
[19]
Oertel
en
Andere NNO v Direkteur van Plaaslike Bestuur
1983
(1) SA 354
(A) at 370B-C.
[20]
Paras 20 and 21.
[21]
Para 15.
[22]
Reinhard Zimmerman
The
Law of Obligations
(1990)
at 6-7; C G Van der Merwe
Things
in
27
LAWSA
2 ed para 59.
[23]
Wessels
Law
of Contract in South Africa
2
ed vol 1 p 3-4.
[24]
Smith
v Farrelly’s Trustee
1904
TS 949
at 958;
Lorentz
v Melle & others
1978
(3) 1044 (T) at 1050D-E.
[25]
National
Stadium South Africa (Pty) Ltd & others v Firstrand Bank Ltd
2011
(2) SA 157
;
[2010] ZASCA 164
(SCA) para 31.
[26]
Wessels p 5.
[27]
J J Gauntlett (ed)
Opuscula
Miscellanea
(1979).
[28]
The original text reads:
‘
5.
Dit is ‘n ou strydvraag of mens by verjaring met een
regsinstelling
te doen het wat twee vertakkings het, tw. Verkrygende
en bevrydende verjaring, dan wel of hier eintlik twee selfstandige
regsinstellings
is. Na dit my voorkom het mens hier eintlik met twee
selfstandige regsfigure te doen en is selfs die uitdrukkings
“verkrygende”
en “bevrydende” verjaring
ietwas ongelukkig en misleidend. Dit is waar dat by albei regsfigure
tydsverloop ‘n
rol speel en dat sekere omstandighede, wat
verband hou met die persoon teen wie “verjaring loop”,
by albei regsfigure
te pas kom, maar tog berus die twee
regsinstellings of verskillende grondslae. In die geval van
verkrygende verjaring het mens
met saaklike regte te doen, waar dit
nie net gaan oor die verkryging van ‘n reg deur die een en die
verlies van ‘n
reg deur die ander nie, maar ook met die skyn
wat derdes in hulle verhoudings met die een of die ander kan raak.
Die ratio vir
die verkryging van saaklike regte deur verjaring is
die bestendiging van ‘n feitlike toestand, wat vir ‘n
lang termyn
bestaan het, en waarop derdes ook kan afgaan in hulle
verhoudings met die oënskynlike reghebbende. By bevrydende
verjaring
het mens meer bepaald te doen met die verhouding tussen
skuldeiser en skuldenaar, en dien verjaring in die eerste plek om
die
skuldenaar te beskerm teen eise wat miskien nooit ontstaan het
nie of reeds gedelg is. Die verbintenis is uit sy aard en wese ‘n
tydelike verhouding wat bestem is om deur voldoening tot niet te
gaan, en bowendien ‘n verhouding tussen skuldeiser en
skuldenaar, waarby derdes slegs onregstreeks betrokke is. ‘n
Saaklike reg, daarenteen, is ‘n verhouding van ‘n
duursame aard, wat teenoor elkeen en iedereen gehandhaaf kan word,
en waarby dit in die verkeer stremmend kan werk indien buitestaners
nie met vertroue op die skyn kan afgaan nie.’
[29]
Evins
v Shield Insurance Co Ltd
1980
(2) SA 814
(A) at 842E-F.
[30]
See, in general,
National
Joint Municipal Pension Fund v Endumeni Municipality
2012 (4) SA 593
;
[2012] ZASCA 13
(SCA) para 18.