About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Kwazulu-Natal High Court, Durban
SAFLII
>>
Databases
>>
South Africa: Kwazulu-Natal High Court, Durban
>>
2019
>>
[2019] ZAKZDHC 3
|
|
Habib and Another v Ethekwini Municipality (12975/2017) [2019] ZAKZDHC 3; 2020 (1) SA 580 (KZD) (20 March 2019)
IN
THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL LOCAL
DIVISION, DURBAN
REPORTABLE
CASE
NO:
12975/2017
In the matter between:
ISMAIL ABDUL HABIB
First Plaintiff
ISMAIL
ABDUL SATAR TAYOB N.O
Second Plaintiff
and
ETHEKWINI MUNICIPALITY
Defendant
ORDER
(a)
The application by the plaintiffs in terms of uniform rule 30 is
dismissed with costs.
(b)
The exception by the defendant is
dismissed with costs.
JUDGMENT
Delivered
on:
20
March 2019
Ploos van Amstel J
[1]
The plaintiffs in this matter are the trustees of the Ismail Habib
Family Trust. They
have instituted an action against the eThekwini
Municipality (‘the municipality’) in which they claim
payment of the
sum of R3 781 107, which they say they paid to it
in respect of rates and penalties owed by a previous owner of an
immovable
property which they had purchased. The basis of the claim
is that they were not liable to the municipality for the amount paid,
but made the payment after threats by it regarding the
discontinuation of services and legal action.
[2]
The plaintiffs pleaded that they only became aware that they had not
been liable to
make the payment to the municipality after a judgment
of the Constitutional Court on 29 August 2017, which was to the
effect that
it is not permissible for a local authority to compel the
new owner of immovable property to pay the rates owed by a previous
owner.
[3]
The municipality’s response was an exception to the particulars
of claim on
the basis that the facts pleaded do not disclose a cause
of action. In essence the objection is that the averments do not
establish
that the plaintiffs’ claim has not become prescribed.
The point is made that it is not stated in the particulars of claim
when the payment was made, and that the date of the Constitutional
Court judgment is not relevant to the determination of when
prescription commenced to run.
[4]
The plaintiffs delivered a notice in terms of uniform rule 30(2)
(b)
,
claiming that the notice of exception was an irregular proceeding and
affording the municipality an opportunity to withdraw it.
The basis
of the contention was that prescription cannot be raised by way of an
exception and has to be raised in a special plea.
The municipality
did not respond to the notice and the plaintiffs delivered an
application in terms of uniform rule 30(1) for an
order setting aside
the exception as an irregular step.
[5]
Counsel for the plaintiffs submitted that if I conclude that the
exception should
be dismissed on the merits then there is no need for
me to decide the application in terms of rule 30. Counsel for the
municipality
submitted that the application was inappropriate and
unnecessary, that it resulted in costs being incurred and that,
regardless
of my finding on the merits of the exception, I should
order the plaintiffs to pay the costs of the application. In those
circumstances
it seems to me that I have to deal with the
application.
Is the exception an
irregular step?
[6]
Counsel for the plaintiffs referred me to L T C Harms
Amler’s
Precedents of Pleadings
9
ed (2018) at 305
,
where
the learned author says the proper way of raising prescription in
action proceedings is by way of a plea or special plea,
and not by
way of exception. He says the reason is that the plaintiff may have a
valid answer to the plea of prescription (such
as delay or
interruption), which may be raised in replication.
[1]
He does not deal with the question whether such an exception will be
an irregular step, and it appears to be no more than a caution
that
an exception based on prescription is bound to fail.
[7]
In D Harms
Civil Procedure in the Superior Courts
SI-64
(2019) at B30.3 the learned author says the term ‘irregular’
is not defined in uniform rule 30, but ‘it
can be accepted that
the rule applies only to irregularities of form and not to matters of
substance’. He says there is,
however, conflicting authority in
this regard.
[8]
In
Sanan
v Eskom Holdings Ltd
[2]
the plaintiff sued his former employer for damages on the basis that
during his employment he was exposed to asbestos, as a result
of
which he contracted cancer. The defendant delivered an exception on
the basis that the particulars of claim disclosed no cause
of action,
in view of the statutory embargo to such claims contained in s 35 of
the Compensation for Occupational Injuries and
Diseases Act 130 of
1993. The defendant contended that s 35 was a complete bar and that
the particulars of claim thus disclosed
no cause of action. The
learned judge upheld the exception and referred to
Mankayi
v Anglogold Ashanti Ltd
[3]
,
in which the Supreme Court of Appeal dismissed an appeal against a
judgment which upheld a similar exception. He rejected a contention
that the exception should be dismissed on the ground that the
defendant should have raised the statutory bar by way of a special
plea, and not by exception. After a discussion of Voet
Ad
Pandectas
46.1
and Herbstein & Van Winsen
The
Civil Practice of the Supreme Court of South Africa
5
ed at 599 and 600 the learned judge concluded that the nature of a
defence raised by special plea or exception is more important
than
the procedure adopted. In other words, it should be considered on its
merits.
[9]
In
Living
Hands (Pty) Ltd & another v Ditz & others
[4]
Makgoka J said it was quite understandable that the court in
Sanan
found it easy to dispose of the issue of prescription
[5]
,
for there could, in any event, not be anything in replication that
the plaintiff could raise, as his action was barred by statute.
He
said, however, that he did not agree with the suggestion that, as a
matter of principle, in all cases, a party has a choice
to raise the
defence of prescription either by plea or exception. He added that it
is time-honoured that prescription should be
raised by way of special
plea, and this has been followed by our courts for many decades. He
referred to a number of authorities
[6]
,
which he said were binding on the court in
Sanan
,
but were not followed by it. I refer briefly to these authorities.
[10]
In
Holmes
v Schoch
[7]
the plaintiff sued the defendant for the delivery of a number of
donkeys which he owned, alternatively for damages. The defendant
entered what he called an exception to the summons, on the basis that
in terms of s 5 of Act 26 of 1908 the plaintiff should have
brought
his action within 14 days of the delivery of the donkeys to the
defendant. On appeal from the magistrates’ court
De Villiers JP
said this was clearly a plea of prescription, and should have been
taken
in
limine
.
The defendant, before pleading, should have applied for leave to file
his plea of prescription. He said if this were the only
point in the
case, and the court was satisfied that it was merely technical, it
would have no difficulty in allowing the exception
to stand as a plea
of prescription. It was however held on the facts that the defendant
was not entitled to the benefit of the
section. In a separate
judgment Bristowe J said:
‘
There is no doubt that the
defence of prescription ought to be pleaded. But in this case, though
it was not pleaded as a defence,
it was pleaded as an exception, and
inasmuch as the point is one of law I do not think we ought to hold
that the objection is fatal
to the appellant
[8]
’.
[11]
In
Reuben
v Meyers
[9]
the issue was whether the defendant should have been allowed on the
opening day of the trial to amend his plea by raising a defence
of
prescription. The statement by Murray CJ that according to the modern
practice a defence of prescription is raised by a special
plea was
made in the context of that case. The question whether prescription
can be raised by way of an exception did not arise.
[12]
In
Shield
Insurance Co Ltd v Zervoudakis
[10]
prescription was invoked in an exception to a third party notice.
Munnik J said it was ‘trite law that prescription must
be
pleaded as a defence and cannot be taken by way of exception’
[11]
.
He referred to s 14 of the Prescription Act of 1943, which
provided that a party who raises prescription shall do so in the
pleadings. Section 14 is however not helpful in this context as an
exception is a pleading.
[12]
He also relied on the decision in
Holmes.
[13]
The way in which Munnik J put it, was that a plea of prescription can
manifestly not be decided upon exception
[14]
.
It is by no means clear that the court was of the view that such an
exception would be an irregular step, as opposed to saying
that such
an exception was bound to fail.
[13]
In
Walsh NO v
Scholtz
[15]
prescription was raised
in an exception to particulars of claim. The learned judge said the
procedure has always been to raise prescription
by way of a special
plea, which would give the other party an opportunity to reply to it.
He reasoned that the particulars of claim
could not be said to lack
averments to sustain a cause of action and that if the defendant had
not given notice of intention to
defend, a judgment by default would
have been granted. With reference to
Cassimjee
v Cassimjee
[16]
he said that in a case
where all the facts were before the court and the question whether
the claim had become prescribed is a question
of law, there cannot
really be an objection to the issue of prescription being decided by
way of an exception.
[14]
In
Rand
Staple-Machine Leasing (Pty) Ltd v ICI (SA) Ltd
[17]
the defendant objected to a proposed amendment to the particulars of
claim on the basis that the claim sought to be introduced
had become
prescribed. The court held that interlocutory motion proceedings were
not proceedings as are envisaged by s 17(2) of
the Prescription Act
68 of 1969 (‘the Act’). Viljoen J said the document in
which prescription is invoked is the plea
or plea in reconvention in
a trial or the opposing affidavit in motion proceedings. He said the
proceedings envisaged are the main
proceedings and not intermediate
or interlocutory proceedings.
[15]
In
Union
& SWA Insurance Co Ltd v Hoosein
[18]
the defendant in an action filed a notice of motion for an order
striking out or dismissing the plaintiff’s claim, on the
basis
that it had become prescribed. Goldstone J commented on the somewhat
unusual procedure, and said prescription is normally
raised by way of
special plea and in no other way. He said it cannot, for example, be
raised by way of exception. He added that
this is presumably for the
reason that a plaintiff may wish to replicate a defence to the claim
of prescription, for example, an
interruption. Because the plaintiff
had not objected to the procedure adopted, and instead replied fully
to the application, the
learned judge allowed the matter to be argued
on the issue of prescription, on the basis that all the relevant
facts were before
the court.
[16]
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. 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.
[17]
Uniform rule 23 provides for the delivery of an exception where any
pleading is vague and embarrassing
or lacks averments which are
necessary to sustain an action or defence, as the case may be. The
exception in the present matter
was based on the contention that the
facts pleaded in the particulars of claim do not disclose a cause of
action. Such an exception
is provided for in uniform rule 23. Whether
or not the exception should succeed seems to me to depend on whether
or not the particulars
of claim disclose a cause of action. If they
do, the exception fails. But an exception which is without substance
on its merits,
even if it is hopeless, is not an irregular step. It
is a bad exception.
[18]
I am not aware of a case where an exception was set aside as an
irregular step in terms of uniform
rule 30. In
Cassimjee
a
number of exceptions were upheld on the basis that the plaintiff’s
claims as set out in the declaration had become prescribed.
It
appears from the judgment that some of the issues were matters of
law. Nevertheless, it is an example of a matter where prescription
was dealt with on exception.
[19]
Where therefore an exception is taken on the basis of prescription,
the correct approach in my
view is not to set it aside as an
irregular proceeding, or to dismiss it on the basis that the
incorrect procedure has been followed,
but to consider whether the
particulars of claim lack averments which are necessary to sustain an
action. In most cases the answer
will be that the particulars of
claim are not excipiable, because the plaintiff is not required to
aver that his claim has not
prescribed.
[20]
The application under uniform rule 30 can therefore not succeed.
The exception on its
merits
[21]
An excipient has to show that the pleading is excipiable on every
interpretation that can reasonably
be attached to it.
[19]
In Herbstein & Van Winsen
The
Civil Practice of the Supreme Court of South Africa
at
631
the learned
authors say that:
‘
for the purposes of an
exception no facts [other than agreed facts] may be adduced by either
party and an exception may thus only
be taken when the defect
objected against appears
ex
facie
the pleading itself’.
[22]
It is trite that an averment that the claim has not prescribed is not
required to establish a cause
of action. Section 17(1) of the Act
provides that a court shall not of its own motion take notice of
prescription. Subsection (2)
provides that ‘a party to
litigation who invokes prescription, shall do so in the relevant
document filed of record in the
proceedings’.
[23]
The defendant states in the notice of exception that according to the
particulars of claim the
plaintiffs had paid the relevant amount ‘on
an unpleaded (sic) date’ and that it had done so ‘as at
2006’.
This is not what is stated in the particulars of claim.
The averments are that it was a condition of the transfer that the
rates
for a period of two years prior to the transfer had to be paid
by the trust. This amount was duly paid and the transfer was
registered
on 29 March 2005. After transfer the municipality demanded
that the plaintiffs pay the debt of a previous owner in respect of
rates
in an amount set out in a statement dated 8 August 2006. Then
follows an averment that under compulsion and threat of
discontinuation
of services and legal action, the plaintiffs made
payment to the municipality in respect of this debt in a total amount
of R3 781 107.
The date on which the payment was made is
not pleaded. The statement of account annexed to the particulars of
claim is accompanied
by a letter of demand dated 25 January 2013,
referring to arrears in the sum of R3 302 121, and an
acknowledgement of
debt signed by the first plaintiff, dated 2 May
2013, which refers to an amount outstanding of R1 668 756
and instalments
of R278 126. The dates on which those payments
were made are not pleaded.
[24]
It seems to me that it does not appear from the particulars of claim
whether or not the claim
has become prescribed. It does not follow
that they lack averments necessary to sustain an action. To use the
analogy referred
to in
Walsh
, if the action was undefended a
court would have had no difficulty in granting a default judgment on
the particulars of claim.
[25]
The order that I make is as follows:
(a)
The application by the plaintiffs in terms of uniform rule 30 is
dismissed with costs.
(b)
The exception by the defendant is dismissed with costs.
Ploos van Amstel J
Appearances:
For
the Plaintiffs
:
M
Pillemer
SC
Instructed
by
:
Shaukat Karim & Co.
Durban
For
the Defendant
: J P
Broster
Instructed
by
:
Linda
Mazibuko and Associates
:
Durban
Date
Judgment Reserved
:
06 March 2019
Date
of Judgment
:
20 March 2019
[1]
Murray & Roberts (Cape) v
Upington Municipality
1984
(1) SA 571
(A), referred to in LTC Harms
Amler’s
Precedents of Pleadings
,
is authority for the proposition that the plaintiff may have a valid
answer to the plea of prescription – delay of completion
of
prescription in that case. The case does not deal with an exception
in which prescription is invoked.
[2]
Sanan v Eskom Holdings Ltd
2010 (6) SA 638 (GSJ)
[3]
Mankayi v Anglogold Ashanti Ltd
2010 (5) SA 137 (SCA)
[4]
Living Hands (Pty) Ltd &
another v Ditz & others
2013
(2) SA 368
(GSJ) paras 68-69
[5]
This was an error. Prescription was
not raised in
Sanan
.
A complete statutory bar on claims against an employer was raised.
[6]
Holmes v Schoch
1910 TS 700
at 703 and 705;
Reuben
v Meyers
1957 (4) SA 57
(SR) at 58;
Shield
Insurance Co Ltd v Zervoudakis
1967
(4) SA 735
(E);
Walsh NO v
Scholtz
1968 (2) SA 222
(GW);
Rand Staple-Machine
Leasing (Pty) Ltd v ICI (SA) Ltd
1977 (3) SA 199
(W); and
Union
& SWA Insurance Co Ltd v Hoosein
1982 (2) SA 481
(W) at 482G.
[7]
Holmes v Schoch
1910 TS 700
[8]
Holmes v Schoch
1910
TS 700
at 705
[9]
Reuben v Meyers
1957 (4) SA 57
(SR) at 58
[10]
Shield Insurance Co Ltd v
Zervoudakis
1967 (4) SA
735 (E)
[11]
Shield Insurance
at
738A-B
[12]
Herbstein and Van Winsen
The
Civil Practice of the High Courts of South Africa
5 ed at 642. See however
Walsh
NO v Scholtz
1968 (2) SA
222
(GW) at 224A.
[13]
Holmes v Schoch
1910 TPD 700
[14]
Shield Insurance
at
738B
[15]
Walsh NO v Scholtz
1968 (2) SA 222 (GW)
[16]
Cassimjee v Cassimjee
1947 (3) SA 701
(N)
[17]
Rand Staple-Machine Leasing (Pty)
Ltd v ICI (SA) Ltd
1977
(3) SA 199 (W)
[18]
Union & SWA Insurance Co Ltd v
Hoosein
1982 (2) SA 481
(W)
[19]
First National Bank of Southern
Africa Ltd v Perry
[2001]
3 All SA 331
(SCA) para 6.