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[2019] ZALMPPHC 63
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Mapheto v Mamabolo and Others (535/2019) [2019] ZALMPPHC 63 (12 December 2019)
REPUBLIC
OF SOUTH AFRICA
IN THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
(1)
REPORTABLE:
YES
/NO
(2)
OF
INTEREST TO OTHER JUDGES:
YES
/NO
(3)
REVISED
CASE
NUMBER: 535/2019
In
the matter between:
LESIBA
MICHAEL MAPHETO
APPLICANT
AND
SAMUEL
MAMABOLO
1
ST
RESPONDENT
RAHLABA
SAMUEL
2
ND
RESPONDENT
MINISTER
OF
POLICE
3
RD
RESPONDENT
JUDGEMENT
KGANYAGO
J
[1]
The applicant brought a spoliation application seeking an order that
he be restored possession
of a certain Tipper Truck with registration
numbers FHM 670 GP by the first respondent. The first and second
respondents are opposing
the applicant’s application. The
respondents have raised a point
in limine
of prescription
against the applicants claim.
[2]
The background facts are that the applicant was employed by his uncle
who was renting
out his trucks to construction companies. His uncle
gave him one of the trucks of which he transferred it into his names.
However,
that truck remained being rented out by his uncle to the
other construction companies. His uncle passed away on the 31
st
December 2004 and was buried during January 2005.
[3]
After the passing of his uncle there was a dispute about the
ownership of the Tipper Truck. The
applicant was called by Midrand
SAPS informing him that the second respondent has opened a criminal
case against him alleging that
he had stolen her vehicle. On the 13
th
May 2006 he took the truck to the SAPS Midrand where it was taken and
parked with stolen vehicles for safekeeping until the matter
was
resolved.
[4]
On the 18
th
May 2006 he went back to Midrand SAPS to
enquire about the Tipper Truck and was told that it was not
registered in their books
and the truck was no longer there. He tried
without success to resolve the matter with the SAPS.
[5]
On the 5
th
February 2007 he employed the services of
Motsile Attorneys to assist him. Unfortunately, Mr Motsile passed
away before the matter
was resolved. He had to retrieve the file from
the Law Society in Pretoria. On the 30
th
June 2011 he
appointed Sebuyi Attorneys to take over the matter. However, he
terminated the services of Sebuyi Attorneys as he
could not afford
their fees.
[6]
On the 7
th
June 2012 he opened a criminal case and
reported the truck as stolen at Midrand SAPS. The SAPS did not make
any progress with his
case. On the 22
nd
July 2018 he saw
the truck parked inside a yard at Turfloop Location. He took the
pictures of the truck and went to report the
matter at Midrand SAPS.
He was told to go and report the matter at the nearest SAPS.
[7]
The applicant went to Mankweng SAPS. He together with the vehicle
theft unit based in Polokwane
went to the premises where the truck
was parked. On arrival at the premises, the first respondent
introduced himself as the owner
of the premises and told them that he
had bought the entire estate of his uncle, including the truck from
the second respondent.
He also told them that the truck was not yet
registered into his names as he was still paying the purchase price
in instalments
and was also awaiting a police clearance as the truck
has been circulated as stolen. The police officers then advised him
to go
the civil route in order to retrieve the truck, hence the
present application.
[8]
The respondents’ in their point
in limine
of
prescription are stating that the cause of action in this matter
arose during 1999 if not 2006 when the truck was
taken away from the applicant allegedly by the second respondent
through the assistance of the police.
The
respondents are submitting that the three year
period have lapsed before the applicant launched
his
application.
[9]
The applicant’s counsel in this court submitted that the
applicant had located the
truck inside the yard in Turfloop Location
on the 22
nd
July 2018. It is the applicant’s
contention that the debt does not arise from the contract and could
therefore not be deemed
to be due until the creditor, (in this
instance the applicant) had knowledge of the identity of the debtor,
(first respondent)
and of the facts from which the debt arose (the
location of the truck).
[10]
In terms of Section 12(1) of the
Prescription
Act
[1]
(the Act), prescription shall commence to run as soon as the debt
becomes due. Section 12 (3) of the Act provides that the debt
shall
not be deemed to be due until the creditor has knowledge of the
identity of the debtor and of the facts from which the debt
arises,
provided a creditor shall be deemed to have such knowledge if he
could have acquired it by exercising reasonable care.
[11]
In Price
Waterhouse Coppers INC and Others v National Potato Co-operative Ltd
& Another
[2]
the court said
“…
In a line of cases
commencing with Drennan Maud & Pathers v Pennington Town Board
this court has consistently held that all
that is required is
knowledge of the minimum facts required to institute action. It is
unnecessary for the claimant to be aware
of the legal consequences of
those facts. Where the claimant does not have actual knowledge of
those facts, but could by the exercise
of reasonable care have
acquired that knowledge, that is equivalent to actual knowledge
”
.
[12]
As per the applicant’s version, he took the truck to the SAPS
Midrand after he was requested to do
so by the police. The truck was
kept with other stolen vehicles at the SAPS Midrand. The SAPS Midrand
had a legal duty to keep
the truck safe until the dispute relating to
it was resolved. The truck disappeared whilst in the hands of SAPS
Midrand and they
could not tell the applicant as to what happened to
the truck.
[13]
The applicant became aware that the truck has disappeared during May
2006. He also had knowledge that the
truck disappeared in the hands
of the SAPS Midrand. The applicant therefore knew the identity of the
persons who were responsible
for the disappearance of his truck. As
at May 2006 the applicant could have instituted action against the
third respondent as the
truck disappeared in the hands of the SAPS
who were supposed to keep the truck safe and were also unable to tell
him how it disappeared.
Even after the truck was parked with other
stolen vehicles, the applicant was given a wrong case number by
inspector Malapane.
When applicant brought it to the attention of
inspector Malapane that the case number was wrong, he promised to fix
it but never
did that. When the applicant followed up the matter with
the seniors in the SAPS, it was confirmed to him that the case number
given to him by inspector Malapane was indeed wrong.
[14]
Inspector Malapane when he took the truck for safe keeping was acting
within the
course and scope of his employment. The mere
fact that he had brought it to
the attention
of inspector Malapane that the case number
wasincorrect and he promised to fix it, but did not do so, and also
that
the truck
disappeared whilst in the safekeeping of the SAPS Midrand,
was
sufficient
enough to hold the third respondent liable
for the
disappearance of the truck since
inspector Malapane was acting within the course and
scope of his
employment when he took the truck for safekeeping.
[15]
The applicant had the required knowledge and minimum facts required
to institute action as at
May 2006, but he failed to do so. From 2006
up to 2018 it is a long period of time which has expired despite the
applicant having
the identity of the person whom he
could have instituted action against. The applicant has explained the
steps
that he took in trying to locate the truck up
the 7
th
June 2012. From there he seemed to have given up
to ever recovering the truck in question. Even from 2012 to 2018 it
is still more
than 3 years.
[16]
I am alive to the fact that in this application the applicant is
seeking a
spoliation
order against the facts that came to his knowledge on the 22
nd
July
2018. The facts of the 22
nd
July 2018 does not take away
when cause of
action arose and also when
he had actual knowledge of the minimum
facts required
to institute action.
In my view, the cause of action arose during May
2006, and by then the applicant had minimum facts
required to institute
action, and the
identity of the persons that he could have instituted action
against. Under the circumstances, I am satisfied that there is merit
in the respondents’ point
in limine
of prescription.
[17]
In the result I make the following order:
17.1 The respondents’
point
in
limine
of prescription is upheld with costs on party and party scale.
MF KGANYAGO J
JUDGE OF HIGH
COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE
APPEARANCE:
FOR
THE APPLICANT :
ADV. SA NKOANA
INSTRUCTED BY
:
SEGALA SESHIBE ATTORNEYS
111
IBAZELO SECTION
CORNER
MAMBO & JULIUS NYERERE
STREET, TEMBISA
FOR
THE RESPONDENT
: ADV. TW BABEDI
INSTRUCTED BY
: MPHO MOKHITHI INC ATTORNEYS
42
SCHOEMAN STREET
POLOKWANE
DATE OF HEARING
: 06 NOVEMBER 2019
DATE
OF JUDGEMENT
: 12
TH
DECEMBER 2019
[1]
68 OF 1968
[2]
2015 ZASCA 2
(4
TH
MARCH 2015) AT PARA 145