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[2010] ZAGPPHC 184
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Monokandilos v Generale Des Carriers Et Des Mines SA (11261/2001) [2010] ZAGPPHC 184 (5 November 2010)
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
number: 11261/2001
DATE:
05/11/2010
In
the matter between:
DIMITRIOS
MONOKANDILOS
..............................................................................
Plaintiff
and
GENERALE
DES CARRIERS ET DES MINES
SA
...........................................
Defendant
JUDGMENT
FABRICIUS
J:
1.
The Plaintiff herein issued summons against the Defendant, and in the
context of the First claim alleged that Defendant had defamed
him in
a Greek newspaper, that such defamation was wrongful, and that as a
result his personal creditworthiness and reputation
was severely
damaged, that he lost various grants and allowances from the Greek
Government, certain shareholding in various companies
and other
profits, which he would otherwise not have lost or made.
2.
Plaintiffs
Second claim is one based on malicious prosecution. Again, so it was
pleaded, certain damages resulted. In the context
of the Second
claim, the particulars of claim were amended from time to time over
the years, and one of the issues before me was
whether or not such
amendments introduced a new cause of action, or, as Defendant's
counsel would have it
"introduced
new claims not recognisable from the original particulars of claim".
He
submitted that that was indeed the case, whilst Plaintiffs counsel
briefly submitted that the augmentation of Plaintiffs claim
for
damages was part and parcel of the original cause of action, and
merely represented a fresh quantification of the original
claim.
1
3.
In
this context I do not intend dealing with the debate (if there is
one) whether or not one should use the terminology used by
the
Appellate Division in
Evins
v Shield
,
or
whether one should, as Defendant's counsel would have it, apply the
test whether or not a new claim is
"unrecognisable
from the original particulars of claim".
4.
Such
a debate, if there is one, lacks substance. In the context of
legal
proceeding a
"cause
of action"
is
a very well known phrase, which requires allegations of - and proof
of
"every
fact which it would be necessary for the Plaintiff to prove if
traversed in order to support his right to the judgment
of the Court,
it does not comprise every piece of evidence which is necessary to
prove each fact, but every fact which is necessary
to be proved."
2
5.
In
my view, the particular amendments (details of which I need not deal
with herein) do not constitute the introduction of new causes
of
action, nor are they
"unrecognisable"
from
the original allegations relating to quantum, as a result of the
alleged defamatory actions.
6.
Accordingly,
the special plea, in the context of the Second claim, cannot be
upheld.
7.
In
the context of the claim for damages resulting from defamation, the
parties also agreed to argue that special plea
in
limine
as
my decision would have a material effect on the further proceedings
in the action, and the necessary decisions that would have
to be
taken if the proceedings were to continue. (I must add that Plaintiff
disavowed any reliance on allegations made in respect
of what
occurred in Zambia).
8.
In
this context, the special plea is to the effect that the relevant
delict was committed during June 1996, that the summons was
served
during May 2001, that this date is more than 3 (three) years after
the date upon which the claim arose, and that accordingly,
it had
become prescribed in terms of Section 11 of the Prescription Act, 68
of 1969.
9.
In
Plaintiffs reply to the special plea, it was pleaded that
"the
entire cause of action emanates, and all the actions relating to all
the elements thereof, were committed in Greece."
It
was further pleaded that the parties had formally agreed that the
lex
causae,
i.e.
the Law of Greece, was applicable in this action, and that the
Plaintiff bore the onus to prove the relevant Greek law in this
particular context. It was pleaded that according to both Greek and
South African law, the law relating to prescription forms part
of the
substantive law of the land, and thus the Greek law relating to
prescription applies, and not the South African law. In
this context
I was then referred to (and this was also pleaded) Section 937 and
Section 250 of the Greek Civil Code. This provides
for a
prescription period of 20 (twenty) years, alternatively 5 (five)
years, depending
on
not
whether the delict relied upon was also a crime or not. The
prescription of a claim both in South African law and Greek law
is
suspended by the issue of a summons which,
in
casu,
occurred
within the prescription period of 20 (twenty) years, alternatively 5
(five) years.
10.
The
parties had agreed, as I have said, that the
lex
causae
pertaining
to this action was the law of Greece. Both causes of action arose in
their entirety in Greece. It was also contended
that even if this had
not been agreed upon, it would, in terms of Private International
Law, have been the correct legal position
in any event.
11.
On
behalf of the Plaintiff it was argued that it was trite law that
where there was a difference in content between the laws of
different
legal systems, the rules of the Conflict of Laws should be applied to
determine which system of law ought to be applied
by the Court. It
was similarly trite that the starting point for this process was the
determination of the legal category into
which the disputed point of
law, or issue, fell. If such a rule was procedural of nature, the
lex
fori, in casu
would
be South African law, whilst if the issue formed part of the
substantive law, the
lex
causae
would
apply.
3
12.
In
contrast to its predecessor, the South African Prescription Act, 68
of 1969, is substantive in character. If that is so, the
lex
causae
would
apply (the Greek law).
4
13.
Because
the Prescription Act of 1969 is a part of substantive law, (Section
10 extinguishes a debt) the once interesting question
whether a
particular law is of substantive or procedural nature is of lesser
importance (if of any at all) in these or other similar
proceedings.
The notion that if a matter is one of procedure it must be tried
according to South African procedural laws, is not
one that has
survived the impact of modern jurisprudence. The traditional rule and
its results has been discussed by Schutz J (as
he then was) who,
already in 1993, suggested the adoption of the
via
media
approach,
according to which the Court has regard to both the
lex
fori
and
the
lex
causae
before
determining the characterisation of the issue between the parties.
5
14.
The
Supreme Court of Appeal, in a judgment that has unfortunately not
been reported in one of the recognised Law Reports,
6
also noted that prescription rules are increasingly characterised as
substantive for the purposes of Private International Law,
and that
in recent years there has in any event been a distinct movement in
the common law countries away from the English common
law
"duar
classification
of prescription / limitation rules to a substantive characterisation
of such rules (see paragraph 29). It commended
the approach of Van
Zyl J
7
who held that under South African Law prescription was part of
substantive law and governed by the
lex
causae.
The
lex
causae
was
the law with which the cause of the claim (in that instance a
contract) was most closely connected. That approach of course
was the
essential question where the
lex
fori
regards
prescription as a matter of substantive law.
15.
In
the
Society
of Lloyds
decision
of the Supreme Court of Appeal, it was made clear that where there is
a potential conflict between two applicable systems
of law, the
via
media
approach
is the appropriate one to follow, in that it takes cognisance of both
the
lex
fori
and
lex
causae
in
characterising the relevant legal rules. It also
enables
the Court, after the characterisation has been made, to determine in
a flexible and sensitive manner which legal system
has the closest
and most real connection with the dispute before it. The selection of
the appropriate legal system on that basis
must then be sensitive to
considerations of international harmony or uniformity of decisions,
as well as the policies underlying
the relevant legal rule.
16.
In
the present case, it was correctly agreed that the
lex
causae
must
apply and that that is the law of Greece. In that particular context,
there is no potential conflict between the two applicable
legal
systems on the topic whether or not prescription is part of
substantive or procedural law, subject to what I will say hereunder.
17.
It
was contended by Defendant's counsel that the Plaintiff bore the onus
of proving the Greek law on this topic and that it had
failed to do
so. The question is of course covered by the Law of Evidence
Amendment Act.
8
Schutz J
9
was of the view that foreign law is a question of fact which normally
is proven by experts, although the
Act
45 of 1988:
"Section
1(1) Any Court may take judicial notice of the law of a foreign state
of indigenous law insofar as such law can be
ascertained readily and
with sufficient certainty..."
In
mentioned
Evidence Amendment Act gave the Court the power to take judicial
notice of any law if it was readily ascertainable with
sufficient
certainty. It was contended that in the present case, such expert
evidence had to be produced. I do not agree. Plaintiff's
counsel
handed to me a translation (I was assured that it was up to date) of
the Greek Civil Code.
10
Prescription therein, in the present context, is dealt with.
11
It
is clear that those provisions are part of the substantive law of
Greece, in as much as they are contained in the Civil Code.
In my
view, I can take full notice of that law, inasmuch as I am of the
view that it can be ascertained readily and with sufficient
certainty. No expert evidence is necessary to tell me what the Civil
Code says on the topic. It is clear that the period is either
5
(five) years or 20 (twenty) years, depending on whether the delict
complained of is also a criminal offence. It is not necessary
to
decide that, since it is common cause in these proceedings that if
the prescriptive period is indeed 5 (five) years, the Defendant's
special plea on the Plaintiffs First claim must fail. I hold this to
be the case.
18.
Accordingly, Defendant's special pleas are dismissed with costs,
DATED
at PRETORIA on this the 5 day of November
2010.
SIGNED:
HJ FABRICIUS
JUDGE
OF THE HIGH COURT,
NORTH
AND SOUTH GAUTENG DIVISION
Counsel
for Plaintiff: Adv. PJJ de Jager SC
Instructed
by Geyser Van Rooyen Attorneys, Pretoria
Counsel
for Defendant: Adv. GM Young
Instructed
by Klopper Jonker Attorneys, Johannesburg
Date
of Hearing:
29
October 2010
Date
of Judgment:
5
November 2010
1
See:
Evins
v Shield Insurance Company Ltd,
1980 (2) SA (A) 814 at 836D
2
See:
Read
V Brown,
22 QBD 131;
McKenzie
v Farmers Co-operative Meat Industries Ltd
,
1922 AD 16 at 23 and
Dusheiko
v Milium.
1964 (4) SA 648 (A) at 658A
3
See:
Laconian
Maritime Enterprises Ltd v Aqromar Linias Ltd.
1986 (3) SA 509 D, especially at 518 to 521
4
See also:
Kuhne
& Naqel, AG Zurich
v
APA
Distributors (Pty) Ltd,
1981 (3) SA 536 W
5
See:
Laurens
v Von Hohne,
1993 (2) SA 104 WLD at 115 J and further
6
See:
Society
of Lloyds v Price: Society of Lloyds v Lee.
[2006] JOL 17577
7
In
Society
of Llovs v Romahn and 2 other cases.
2006 (4) SA 23 CPD
8
Act
45 of 1988:
"Section
1(1) Any Court may take judicial notice of the law of a foreign
state of indigenous law insofar as such law can
be ascertained
readily and with sufficient certainty..."
9
In
Laurens
v Von Hohne
supra at 116 B
10
Translated
by C Taliadoros, Sakkoulas Publishers, Athens, 2000
11
See:
Section 249, 250 and 937