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[2021] ZASCA 114
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Jugwanth v Mobile Telephone Networks (Pty) Ltd (529/2020) [2021] ZASCA 114; [2021] 4 All SA 346 (SCA) (9 September 2021)
THE SUPREME
COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case no:
529/2020
In the matter
between:
SUNNIDHEW
SOOKAI JUGWANTH
APPELLANT
and
MOBILE
TELEPHONE NETWORKS (PTY) LTD
RESPONDENT
Neutral citation:
Jugwanth
v MTN
(Case no 529/2020)
[2021] ZASCA 114
(9 September 2021)
Coram:
NAVSA
ADP, GORVEN and HUGHES JJA, and KGOELE and PHATSHOANE AJJA
Heard
:
24 August 2021
Delivered
:
This judgment was handed down electronically by circulation to
the
parties’ representatives by email, publication on the Supreme
Court of
Appeal website and release to
SAFLII. The date and time for hand-down is deemed to be 09h45 on 9
September 2021.
Summary:
Practice – exception – extinctive
prescription – exception to particulars of claim for not
disclosing a cause
of action on the basis that ex facie claim
prescribed - party relying on prescription must invoke and prove it –
no requirement
for particulars of claim pre-emptively to plead a
basis to defeat a possible plea of prescription ––
special plea of
prescription susceptible to replication –
particulars of claim not excipiable.
ORDER
On
appeal from:
Gauteng Division of the High
Court, Johannesburg (Ngalwana AJ, sitting as court of first
instance):
1 The appeal
is upheld with costs, such costs to include the costs of two counsel
wherever
so employed.
2 The order of
the Gauteng Division of the High Court, Johannesburg, is set aside
and
substituted with an order dismissing the exception with costs.
JUDGMENT
Gorven JA
(Navsa ADP, Hughes JA and Kgoele and Phatshoane AJJA concurring)
[1]
The appellant, an attorney, claims that he was
contracted to represent the respondent in matters before the
Commission for Conciliation,
Mediation and Arbitration.
[1]
For convenience, I shall refer to the parties as the plaintiff and
defendant respectively. The plaintiff’s claim relates
to fees
for having performed that work. He sued the defendant, one of the
country’s largest mobile telephone networks, for
payment in the
Gauteng Division of the High Court, Johannesburg (the high court).
The defendant excepted to the particulars of
claim on the basis that
they did not disclose a cause of action because the debts on which
the claim was based had prescribed.
In the high court, Ngalwana AJ
granted the following order:
‘(a)
The exception is upheld.
(b)
The [plaintiff] is to pay the [defendant’s] costs on
exception.’
The appeal
before us is with his leave.
[2]
The particulars of claim alleged that the
contract on which the appellant sued was concluded in April 2006. The
services were said
to have been rendered between 2006 and 2008. In
support of the claim, the plaintiff annexed 148 invoices. The total
claim was for
payment of R3 875 501.60. The summons was
served during June 2015, more than six years after the last of the
services
was rendered and invoices issued. The salient averments in
the defendant’s exception are:
‘3.
Therefore, the alleged Plaintiff’s claims are not enforceable
or claimable
against the Defendant based on the following reasons:
3.1
Section 11
(d)
of the
Prescription Act no. 68 of 1969
as
amended provides that the period of prescription of debts shall be
three (3) years in respect of any debt.
3.2
The Plaintiff alleges that the amounts due and payable as per
Annexure(s) “
C1” – “C148”
are
for the periods between 2006 and 2008.
3.3
The Plaintiff failed to claim his alleged debts within a period of
three years from the
date on which the debts were due and payable as
required by the Act in terms of
section 11.
1.2
5cm; line-height: 150%">3.4
The Plaintiff’s debts as per Annexure(s) “
C1” –
“C148”
reveal that majority of the alleged debts
prescribed in the year of 2009 and the remainder thereof prescribed
in the year of 2011
since the Plaintiff issued summons on
28 May 2015.
4.
The Plaintiff’s claim has prescribed and thus there is no cause
of action
against the Defendant.’
[3]
The approach to an exception that a pleading does
not disclose a cause of action was reiterated by Marais JA in
Vermeulen v Goose Valley Investments (Pty)
Ltd
:
‘It is trite law
that an exception that a cause of action is not disclosed by a
pleading cannot succeed unless it be shown
that
ex facie
the
allegations made by a plaintiff and any document upon which his or
her cause of action may be based, the claim
is
(not
may be) bad in law.’
[2]
An exception
sets out why the excipient says that the facts pleaded by a plaintiff
are insufficient. Only if the facts pleaded by
a plaintiff could not,
on any basis, as a matter of law, result in a judgment being granted
against the cited defendant, can an
exception succeed. Only those
facts alleged in the particulars of claim and any other facts agreed
to by the parties can be taken
into account.
[3]
[4]
And in
Cook v Gill,
[4]
referred to with approval by this Court in
McKenzie
v Farmers’ Co-Operative Meat Industries Ltd
,
it was held that a cause of action is disclosed when the pleading
contains:
‘[E]very 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.’
[5]
Put another
way, judgment could be granted if the averments in those particulars
of claim were proved.
[5]
There are certain features of the law of
prescription which lend clarity to this matter. Prescription is
governed by the Prescription
Act 68 of 1969 (the Act). The period of
prescription for this debt under s 11
(d)
of the Act is three years. Section 10 of the Act reads:
‘[A] debt shall be
extinguished by prescription after the lapse of the period which in
terms of the relevant law applies in
respect of the prescription of
such debt.’
This
provision introduced what is termed ‘strong prescription’
into our law.
[6]
Despite this, s 10(3) of the Act provides that payment of an
extinguished debt is payment of a debt.
[7]
The relevance of this to the present matter will become apparent
later. Significantly, s 17 of the Act provides:
‘(1) A court shall
not of its own motion take notice of prescription.
(2) A party to litigation
who invokes prescription, shall do so in the relevant document filed
of record in the proceedings: Provided
that a court may allow
prescription to be raised at any stage of the proceedings.’
[6]
It is settled law that a person invoking
prescription bears a full onus to prove it. In
Gericke
v Sack
, Diemont JA explained:
‘[It] was the
respondent, not the appellant, who raised the question of
prescription. It was the respondent who challenged
the appellant on
the issue that the claim for damages was prescribed this he did by
way of a special plea five months after the
plea on the merits had
been filed. The
onus
was clearly on the respondent to
establish this defence.’
[8]
In
Macleod
v Kweyiya
, this Court endorsed that principle in ringing tones:
‘This court has
repeatedly stated that a defendant bears the full evidentiary burden
to prove a plea of prescription, including
the date on which a
plaintiff obtained actual or constructive knowledge of the debt. The
burden shifts to the plaintiff only if
the defendant has established
a prima facie case.’
[9]
It bears
mention that the burden which shifts to the plaintiff is an
evidentiary one and not the burden of proof.
[7]
Even if it appears clear when a debt became due,
there are other provisions in the Act which could mean that the debt
did not prescribe
three years thereafter. Section 13 provides for
circumstances in which the completion of prescription is delayed and
ss 14
and 15 provide for circumstances in which the running of
prescription is interrupted. In addition, prescription might not be
invoked
by the debtor. As mentioned, in terms of s 17(2) of the
Act, prescription must be invoked by the party wishing to rely on it.
The necessary corollary is that such a party might choose not to do
so. If so, a debt which has been extinguished by prescription
can
found a judgment. This is also consistent with the provisions of
s 10(3) mentioned above, where payment of a prescribed
debt is
regarded as payment of the very debt which has been extinguished.
Further, a party invoking prescription might be barred
from relying
on it. In
De Jager and Others v ABSA Bank
Beperk
,
[10]
this Court held that an agreement not to invoke prescription, even if
made after a debt had been extinguished by prescription,
was
competent and could successfully resist a defence of
prescription.
[11]
[8]
All of this means that prescription is fact
driven. The fact that a debt appears to have become due on a certain
date is not the
only relevant fact required to determine whether it
has prescribed. The particulars of claim do not necessarily show when
the debt
became due, whether the creditor was prevented from coming
to know of the existence of the debt,
[12]
when the creditor became aware of the identity of the debtor,
[13]
whether the completion of prescription was delayed, whether the
running of prescription was interrupted or whether there was an
agreement not to invoke prescription.
[9]
As mentioned, s 17(1) precludes a court from
raising the matter of prescription of its own accord. The necessary
corollary
is that, if a defendant fails to enter an appearance to
defend and a claim such as set out by the plaintiff in this matter
came
before a court for default judgment, the court could not refuse
it on the basis that it had prescribed. This much was conceded by
the
defendant in argument before us. It was also conceded that, in those
circumstances, default judgment would be granted on the
particulars
of claim in this matter. These are correct concessions.
[10]
It follows that it was not necessary for the
plaintiff to anticipate the invocation of prescription and plead a
basis on which the
claim had not prescribed. This, too, was correctly
conceded in argument. But the defendant made two submissions in
support of the
judgment by the high court. First, that because an
exception is a pleading, the delivery of the exception was an
effective way
of invoking prescription under s 17(2) of the Act.
Second, that because prescription was invoked by the delivery of the
exception,
the plaintiff was, as a result, required to plead a basis
on which the claim had not prescribed. Because he did not amend the
particulars
of claim to do so, they no longer disclosed a cause of
action and the exception was correctly upheld.
[11] In support of the averment that
prescription could rightly be invoked by the delivery the defendant
set much store
by two judgments. The first was the following
dictum
in
Habib and Another v Ethekwini Municipality
:
‘These cases support
the notion that prescription, in trial proceedings, should be raised
by way of a plea or special plea.
They do not in my view provide
authority for the proposition that an exception which invokes
prescription is an irregular step,
or will not be considered on its
merits.’
[14]
In that
matter, as in the present one, an exception had been delivered which
relied on prescription. The plaintiff sought to set
aside the
delivery of the exception as an irregular step. Ploos van Amstel J
went on to say:
‘I think the point
is rather that an exception based on prescription will usually fail
because the contention that the particulars
of claim lack averments
necessary to sustain an action is incorrect. This is because the
plaintiff is not required to aver that
his claim has not become
prescribed.’
[15]
[12]
That conclusion therefore does not support the defendant. No point
was taken in this matter that the delivery of
the exception was an
irregular step. The plaintiff simply argued that it should not
succeed. The fact that delivering an exception
may not be an
irregular step does not make the exception good. The true test
remains to determine whether the particulars of claim
sustain a cause
of action. It is important to bear in mind that Uniform Rule 23(4)
does not, in the ordinary course, envisage further
pleading,
including a replication that might be a retort to a plea of
prescription. In trial proceedings prescription is conventionally
raised by way of a special plea to which there might be a
replication.
[16]
Exceptions are decided on the pleadings as they stand at the time
that the exception is taken.
[13]
The second judgment, relied upon by both the defendant and the high
court, was
Sanan v Eskom Holdings Ltd
.
[17]
There, Claassen J was confronted with an exception to particulars of
claim to the effect that s 35 of the Compensation for
Occupational Injuries and Diseases Act No 130 of 1993 (COIDA) did not
allow for such a claim to be brought in court. The particulars
of
claim placed the plaintiff foursquare within the ambit of the
embargo. The plaintiff argued that a special plea ought to have
been
taken and that an exception was inappropriate. However, this
contention was rejected and the exception was upheld. This was
correct because in that case the averments of the plaintiff himself
barred him from instituting action. In any event that case
was more
about the ouster of the jurisdiction of the court to deal with
certain claims and did not involve the application of the
Act.
[18]
Claassen J referred to the matter of
Mankayi v
AngloGold Ashanti Ltd
,
[19]
and also correctly pointed out that this Court had dismissed an
appeal from a judgment upholding an exception on the same basis
as
Sanan
. In dismissing
the appeal, this Court did not criticise the procedure of excepting
in those circumstances.
[14]
However, having dealt with
Mankayi
and the particulars bearing
on
Sanan
, Claassen J embarked on an unnecessary discussion of
whether, in principle, ‘a special plea or an exception is the
appropriate
procedure to raise a defence’. It is this aspect of
the judgment on which the defendant relied.
[15]
Claassen J went on to say:
‘Would it matter if
an exception in the true sense of the word is raised by way of a
special plea? Surely not. Why then would
the converse be fatal?’
[20]
He went on to
quote the following passage from Herbstein and Van Winsen:
[21]
‘
The essential difference between a special
plea and an exception is that in the case of the latter the excipient
is confined to
the four corners of the pleading. The defence raised
on exception must appear from the pleading itself; the excipient must
accept
as correct the factual allegations contained in it and may not
introduce any fresh matters. Special pleas, on the other hand, do
not
appear
ex facie
the pleadings. If they did, then the
exception procedure would have to be followed. Special pleas have to
be established by the
introduction of fresh facts from outside the
circumference of the pleading, and those facts have to be established
by evidence
in the usual way. Thus, as a general rule, the exception
procedure is appropriate when the defect appears
ex facie
the
pleading, whereas the special plea is appropriate when it is
necessary to place facts before the court to show that there is
a
defect. The defence of prescription appears to be an exception to
this rule for it has been held that that defence should be
raised by
way of special plea even when it appears
ex facie
the
plaintiff’s particulars of claim that the claim has prescribed,
apparently because the plaintiff may wish to replicate
a defence to
the claim of prescription, for example an interruption.’
[22]
Claassen J
criticised this approach:
‘With respect to the
learned authors, it seems to me incongruous that a party is obliged
to raise a defence in a particular
way in order to accommodate or
assist his opponent in raising a counter argument to such
defence.’
[23]
[16]
Claassen J is incorrect to say that where prescription is concerned,
raising ‘a defence in a particular way’
is done ‘in
order to accommodate or assist his opponent in raising a counter
argument to such defence’. In the first
place, prescription
must be invoked. In the second place, as we have seen, when this is
done the party invoking it attracts an
onus. If it attracts an onus,
it can hardly be said that this in any way accommodates or assists an
opponent. If prescription is
invoked in a plea, it may require the
other party to replicate setting out a basis on which the claim has
not prescribed but, if
that party takes the view that the excipient
will not succeed in proving prescription, a replication might not be
delivered at
all. The unqualified criticism of the approach of
Herbstein and Van Winsen was unwarranted. It may not be possible to
say that
an exception relying on prescription could never succeed but
that is certainly the position in this matter.
[17]
What then, of the submission that the delivery of the exception
brought about a situation where the plaintiff was
required to amend
the particulars to plead a basis on which the claim had not
prescribed? This submission necessarily means that
the delivery of
the exception resulted in the particulars of claim, which previously
sustained a cause of action, no longer did
so. In the light of the
onus borne by the party invoking prescription, and the architecture
of the Act, sketched above, it simply
cannot be the case that an
exception to otherwise sufficient particulars of claim requires a
plaintiff to amend on pain of the
exception being upheld and the
claim being dismissed. If a plaintiff need not anticipate
prescription being raised in order for
the particulars of claim to
disclose a cause of action, the delivery of an exception cannot
change the picture.
[18]
A simple example shows up the fallacy in the submission. In the
present matter, the defendant could enter a special
plea invoking
prescription which, if proved, would defeat the claim. If the
defendant failed to appear at the trial of the matter,
Rule 39(1) of
the Uniform Rules of Court provides:
‘If, when a trial is
called, the plaintiff appears and the defendant does not appear, the
plaintiff may prove his claim so
far as the burden of proof lies upon
him and judgment shall be given accordingly, in so far as he has
discharged such burden: Provided
that where the claim is for a debt
or liquidated demand no evidence shall be necessary unless the court
otherwise orders.’
The present
claim is for a debt, so the plaintiff would not have to lead evidence
in that regard. And because the plaintiff bears
no onus as regards
the pleaded defence of prescription, no proof would be required of
him. Default judgment would then be granted.
Even the delivery of a
special plea does not change the fact that, in these circumstances,
the particulars of claim would be sufficient
to found a judgment. How
much less would an exception do so? In circumstances where the
particulars of claim begin by disclosing
a cause of action,
accordingly, the delivery of an exception does not change that
position.
[19]
The high court upheld the exception with costs and held as follows:
‘There is no factual
dispute about the respondent’s claim having prescribed. The
respondent disavowed his waiver averment
when he removed it from his
second amendment notice and did not include it in his amended
particulars of claim. If the applicant
had raised its prescription
defence by way of special plea, it is unlikely to have met with any
credible rejoinder from the respondent
in a replication and
subsequent evidence at trial. The insistence on the facts of this
case that prescription should have been
raised by way of special
plea, in order to enable the respondent to replicate, is therefore in
my view purely a technical nicety
for its own sake. It would simply
delay the inevitable, namely, the dismissal of the respondent’s
claim on grounds of prescription
and, in that process, unwarrantedly
increase costs and add to an already overburdened court roll. In this
regard, it is well to
remember that dismissal of an exception (except
only one founded on jurisdiction) does not finally dispose of the
issue raised
by way of exception because the issue can still be
argued at the trial.’
[24]
[20]
There are a number of difficulties with this set of findings. In the
first place, the learned judge held that there
are ‘no factual
disputes about the [plaintiff’s] claim having become
prescribed’. This ignores the approach to
prescription outlined
above. That was the very issue before the court. The facts as pleaded
might have shown when the debt appears
to have become due. They did
not show anything further of relevance to the issue of prescription.
[21]
In the second place, mention is made of an averment of waiver in the
original particulars of claim, which was omitted
from the amended
particulars. The averment prior to removal by amendment took the
following form:
‘On
18 February 2010, Defendant, represented by Mr Nyathi,
orally waived the defence of prescription to the above
claims of the
Plaintiff. This was recorded in an e-mail from the Plaintiff to the
Defendant dated 18 February 2010, a
copy of which is
attached hereto marked as “D”.’
Prior to the
amendment which removed this paragraph and the annexure referred to,
the plaintiff had unnecessarily attempted to plead
a basis on which
the claims had not prescribed. The high court incorrectly held that
the amendment removing this averment resulted
in the plaintiff
disavowing that basis of resisting prescription. That is not so. It
remains open to the plaintiff to plead in
a replication the same, or
another, basis on which he avers that the claim has not prescribed.
[22]
Thirdly, there was absolutely no warrant for the following finding:
‘If the applicant
had raised its prescription defence by way of special plea, it is
unlikely to have met with any credible
rejoinder from the respondent
in a replication and subsequent evidence at trial. The insistence on
the facts of this case that
prescription should have been raised by
way of special plea, in order to enable the respondent to replicate,
is therefore in my
view purely a technical nicety for its own sake.’
With respect,
the learned judge is not in a position to speculate as to whether a
potential ‘rejoinder’ might be made
or, if made, be
credible. A court cannot, at the stage of an exception, anticipate
the basis on which the defendant will invoke
prescription or that
none of the potential bases which overcome the defence of
prescription will be pleaded and, if pleaded, decided
against the
plaintiff. A trenchant example is the matter of
De
Jager
referred to above. A court dealing with
an exception in that matter could not have known that the plaintiff
would allege that,
even though the debt had prescribed and thereby
been extinguished, the creditor had agreed not to invoke
prescription.
[25]
[23] Fourthly, it is important to correct
the statement that the issue can still be argued at the trial. For
this, Ngalwana
AJ used as authority the matter of
Maize
Board
v Tiger Oats Ltd
and Others
.
[26]
In that matter Streicher JA said:
‘When it has to be
decided whether a declaration or particulars of claim disclose a
cause of action or whether a plea discloses
a defence the issue often
is whether in law that is the case. A decision on that point of
law is not final . . . The point
may be re-argued at the trial in the
event of the exception being dismissed.’
[27]
The dictum of
this Court applied only to a situation where an exception is
dismissed. In such a case, the action continues to trial
and the
point of law can be reargued. If, however, an exception is upheld,
leave is not given to amend, and the claim is dismissed,
there can be
no trial of that action. That ends the action. That, of course
applies to an exception such as the present one that
the particulars
of claim do not disclose a cause of action. If the exception was
based on the pleading being vague and embarrassing,
upholding it does
not end the action because the party concerned is given the
opportunity to remove the cause of the vagueness
or embarrassment.
[24]
For all of the above reasons, the exception was incorrectly upheld.
This means that the appeal must succeed. Plaintiff
asked for the
costs of two counsel on appeal. This was not contested and seems to
me appropriate. In the result:
1 The appeal
is upheld with costs, such costs to include the costs of two counsel
wherever
so employed.
2 The order of
the Gauteng Division of the High Court, Johannesburg, is set aside
and
substituted with an order dismissing the exception with costs.
T R
GORVEN
JUDGE OF
APPEAL
Appearances
For appellant:
D A Turner (with him N C Cheethai)
Instructed by:
Jugwanth Attorneys Incorporated, Johannesburg
Webbers Attorneys, Bloemfontein.
For respondent:
A M Mtembu
Instructed by:
Mashiane, Moodley & Monama Inc, Sandton
Lovius Block Inc, Bloemfontein.
[1]
This refers to matters dealt with by the
Commission for Conciliation, Mediation and Arbitration, created for
the resolution of
labour disputes under the
Labour Relations Act 66
of 1995
.
[2]
Vermeulen v Goose Valley Investments (Pty) Ltd
[2001] 3 All
SA 350
(A) para 7.
[3]
First National Bank of Southern Africa Ltd v Perry NO and others
[2001] 3 All SA 331
(A) para 6.
In that matter
certain additional facts were agreed and could therefore be taken
into account.
[4]
Cook v Gill
L.R.8 C.P. 107.
[5]
See
McKenzie v Farmers’ Co-Operative Meat Industries Ltd
1922 AD 16
at 23.
[6]
Prior to this, our law utilised what is termed ‘weak
prescription’. There, a debt was not extinguished. It remained
a debt but became unenforceable.
Section 2(1) of
the Prescription Act 18 of 1943 provided:
‘Extinctive
prescription is the rendering unenforceable of a right by the lapse
of time’.
[7]
Section 10(3) reads:
‘Notwithstanding
the provisions of subsections
(1) and (2),
payment by the debtor of a debt after it has
been extinguished by
prescription in terms of either of the said subsections, shall be
regarded as payment of a debt.’
[8]
Gericke v Sack
1978 (1) SA 821
(A) at 825H.
[9]
Macleod v Kweyiya
[2013] ZASCA 28
;
2013 (6) SA 1
(SCA) para
10.
[10]
De Jager and Others v ABSA Bank Beperk
2001 (3) SA 537 (SCA);
[2000] 4 All SA 481 (A).
[11]
Ibid para 18-19.
[12]
Section 12(2) of the Act.
[13]
Section 12 (3) of the Act.
[14]
Habib and Another v Ethekwini Municipality
2020 (1) SA 580
(KZD)
para 16.
[15]
Ibid.
[16]
Rule 23(4) states:
‘Wherever any
exception is taken to any pleading or an application to strike out
is made, no plea, replication or other
pleading over shall be
necessary.’
[17]
Sanan v Eskom Holdings Ltd
2010 (6) SA 638
(GSJ).
[18]
Section 35 of COIDA is headed ‘Substitution of compensation
for other legal remedies’ and s 35(1) provides:
‘No action shall
lie by an employee or any dependant of an employee for the recovery
of damages in respect of any occupational
injury or disease
resulting in the disablement or death of such employee against such
employee’s employer, and no liability
for compensation on the
part of such employer shall arise save under the provisions of this
Act in respect of such disablement
or death.’
[19]
Mankayi v AngloGold Ashanti Ltd
[2011] ZACC 3; 2010 (5) SA
137 (SCA); 2011 (5) BCLR 453 (CC).
[20]
Sanan
fn 17 above
para 18.
[21]
Herbstein and Van Winsen
The Practice of the High Courts in South
Africa
5 Ed (2009) at 599-600.
[22]
See
Sanan
fn 17 above
para 20.
[23]
Ibid.
[24]
Gender references have been corrected.
[25]
De Jager
paras 15 and 18.
[26]
Maize Board v Tiger Oats Ltd and Others
[2002] 3 All SA 593
(A).
[27]
Maize Board
para 12.