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[2017] ZAKZPHC 50
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Afrisun KZN Proprietary Ltd t.a Sibaya Casino and Entertainment Kingdon and Another v Sewpersad (AR299/16) [2017] ZAKZPHC 50 (3 November 2017)

IN THE HIGH COURT OF
SOUTH AFRICA
KWAZULU-NATAL DIVISION,
PIETERMARITZBURG
REPORTABLE
Case No:  AR299/16
In the matter between:
AFRISUN KZN PROPRIETARY
LTD t/a SIBAYA
CASINO AND ENTERTAINMENT
KINGDOM                                        FIRST

APPELLANT
MALANDELA SECURITY
SERVICES (PTY) LTD                             SECOND

APPELLANT
and
PRITHIRAJ
SEWPERSAD                                                                            RESPONDENT
APPEAL JUDGMENT
MADONDO DJP
[1] The appellants appeal
against the judgment of Verulam Magistrate’s Court dismissing
their special plea of extinctive prescription
to the respondent’s
claim against them. The appellants were at the court
a
quo
the
defendants and the respondent was the plaintiff. For the sake of
convenience, I propose to refer to them as the plaintiff and
the
defendants as they were so referred to in the court
a
quo.
[2] On 29 September 2014
the plaintiff instituted an action against the defendants for damages
arising out of the personal injuries
the plaintiff sustained when he
slipped and fell on the wet floor surface at the first defendants’
premises on 29 September
2011. The second defendant was operating a
car washing business on the first defendant’s parking area. The
plaintiff averred
that either the first or second defendant was or
both were responsible for the then prevailing circumstances, they
therefore directly
contributed to the plaintiff’s fall and
injury.
[3] The defendants raised
a special plea to the plaintiff’s claim in terms of section 12
of  the Prescription Act 68
of 1969 (the Act) because the action
had not been commenced within three years after the cause of action
had arisen, ie 29 September
2011. The questions to be decided by the
court
a
quo
were whether or not the plaintiff’s claim against the
defendants had prescribed in terms of s 12 of the Act and how the
three year prescription period applicable to the plaintiff’s
claim should be computed.
[4] The defendants
contended that the plaintiff’s claim was based on an incident
which occurred on 29 September 2011 and that
the plaintiff had to
serve the summons by midnight on 28 September 2014. It was the
contention of the defendants that a civil method
of computation,
inclusive of the first day and exclusive of the last day, applied.
Accordingly, the defendants contended that the
plaintiff’s
claim should be dismissed with costs. The learned magistrate was of
the view that since
s11(d)
of the
Prescription Act is
silent on how
the prescriptive period of three years referred therein must be
computed, the method of computation provided for
in s 4 of the
Interpretation Act 33 of 1957 (the Interpretation Act) should be
applied in determining the three-year prescriptive
period. In support
of his decision the learned magistrate relied on Rule 2 of the
Magistrate’s Court Rules which for calculation
of periods of
time or days refers to s 4 of Interpretation Act, dealing with the
computation of days exclusively of the first day
and inclusively of
the last day. The learned magistrate also went on to hold that if
legislation is silent with regard to certain
issues, the correct
procedure is to look to another Act of Parliament for clarity and
guidance in approaching the Act which is
under scrutiny. Secondly,
the learned magistrate purportedly acting on a just and equitable
principle  extended the prescriptive
period of the plaintiff’s
claim by including the last day so to prevent the loss of the
plaintiff’s right to claim
due to miscalculation of days. The
court
a
quo
dismissed the defendant’s special plea of extinctive
prescription.
[5] Two questions this
court is called upon to decide are: (a) how a three-year prescriptive
period for a debt prescribed in
s 11(d)
of the
Prescription Act must
be computed; and whether, the court
a
quo
was
justified to extend the prescriptive period of the plaintiff’s
claim by one day, acting on the basis of a just and equitable

principle, so to prevent the loss of plaintiff’s right to
claim.  It is the contention of the defendants that in
calculating
the prescriptive period a civil method of computation,
inclusive of the first day and exclusive of the last day, applies. To
the
contrary, the plaintiff contends that the statutory computation
of days as prescribed in the Interpretation Act, exclusive of the

first day and inclusive of the last day applies.
[6] In support of the
defendants’ contention, Mr Anderton, referred us to the case of
Arendsnes
Sweefspoor CC v Botha
2013 (5) SA 399
(SCA) as the recent leading decided authority on the
issues. In this case the plaintiff had instituted an action against
the defendant
for damages arising out of the personal injuries the
plaintiff sustained when he fell from the cable-car system operated
by the
defendant. The defendant raised a special plea to the effect
that the plaintiff’s claim had prescribed in terms of the
provisions
of s12 of the Act. However, in this case the appeal turned
solely on whether the service as reflected in the return was to be
construed
as valid service upon the appellant, which had the effect
of interrupting the running of prescription. The case had nothing to
do with the computation of the period of prescription and is
consequently irrelevant.
[7] In terms of
s 11(d)
of the
Prescription Act the
period of prescription for the debt is
three years. Prescription commences to run as soon as the debt is
due. (see
s 12(1)).
A debt is due when the creditors’ cause of
action is complete. The idea of a “debt” in relation to
the Act refers
to an obligation to do something, whether by payment
or by the delivery of goods and services, or not to do something. See
HMBMP
Properties (Pty) Ltd v King
1981
(1) SA 906
(N) 909A-B.
[8] The important words
in calculating the period are those that fix the commencement of the
period which are, “as from the
date on which the claim arose”.
Those words are the typical words of commencement that bring the
ordinary civil method of
computation into operation. See
Kleynhans
v Yorkshire Insurance Co. Ltd
1957 (3) SA 544
(A) at 549 G-H. Departure from the civil rule is
permissible only if it is clear from the language of the section and
the context
in which it appears are such as to show that the
Legislature intended a different method to be used see
Joubert
v Enslin
1910
AD at 37;
Kleynhans
case at
549;
South
African Mutual Fire & General Insurance Co. Ltd v Fouche en ‘n
ander
1970
(1) SA 302
(A) at 315H-316 C.
[9] It is also the case
where the parties have not indicated in their contract how such
period should be reckoned, the computation
should as a general rule,
be made including the first day and excluding the last day. See:
Minister
of Police v Subbulutchmi
1980(4) SA 768 (AD) at 772 A. The clear wording of a statute or
contract may of course lead to the rejection in any particular
case
of the ordinary civil rule in favour of the natural de memonto in
momentum rule or in favour of the exceptional civil rule,
which
includes both the first and the last days.
[10] The statutory
computation is used in the calculation of the number of days
prescribed for the doing of an act or for any other
purpose
prescribed. Section 4 of Act 33 of 1957 provides:
‘
Reckoning of number of days –
when any particular number of days is prescribed for the doing of any
act, or for any other
purpose, the same shall be reckoned exclusively
of the first and inclusively of the last day, unless the last day
happens to fall
on a Sunday or any public holiday, in which case the
time shall be reckoned exclusively of the first day and exclusively
also of
every such Sunday and public holiday.’
The provisions of Rule
2(2) of the Magistrates’ Court Rules of Court, the court
a
quo
relied upon when it sought guidance from s 4 of the Interpretation
Act; do not apply to the provisions contained in other statutory

provisions including the
Magistrates’ Courts Act 32 of 1944
.
But the provisions of the sub-rule apply only to the calculation of
time in terms of those rules.
Champion
v Myers
(1908) NLR;
Anglia
v Naicker
1951 (1) SA 99
(N);
S
v Kashire
1978 (4) SA 166
(SWA);
[11] The provisions of
the Interpretation Act, apply to the interpretation of every law, as
defined in this Act, and to the interpretation
of all by-laws, rules,
regulations or orders made under the authority of any such law,
unless there is something in the language
or context of the law,
by-law, rule, regulation or order repugnant to such provisions or
unless the contrary intention appears
therein, see s1.
[12] Where a particular
number of days is prescribed without there being any exclusion of the
application of s 4, either in express
terms or by necessary
implication, the natural inference would be that the Legislature
intended the section to apply. However,
the scope of the
Interpretation Act is limited to the computation of days. See also
Joubert
v Enslin
1910
AD 6
, 37-38. It does not apply to the calculation of such time when
such time in any other unit than days is expressed. See
Nair
v Naicker
1942
NPD 3
at 5
;
Muller v New Zealand Insurance Co. Ltd
1965
(2) SA 565(D)
at 571E
.
[13] If a claim is not
lodged before the expiry of the prescriptive period of three years,
the right to claim prescribes automatically;
the period of
prescription starts running from the day on which the plaintiff’s
cause of action arose or from the date on
which the creditor might
reasonably have been expected to have knowledge of such wrong,
whichever is the earlier date. See:
s 12
(1) and (3) of the
Prescription Act. Mr
Kahn for the plaintiff has for the first time on
appeal argued that it took the plaintiff sometime, subsequent to 29
September
2011, to become aware of the wrong by the defendants. Such
contention was never made in the pleadings nor in the court
a
quo
. In
the result such contention was not anytime relevant hereto nor before
the court
a
quo
. I
therefore find no merit in it.
[14] In the present case
the period of prescription started running as from the 29
th
September 2011, being the day on which the cause of action arose. The
method of computation is in accordance with the ordinary
civil method
of calculation of time, which means that the first day must be
included and the last day excluded. In order to interrupt
the running
of the prescription, summons had to be served on the defendants not
later than midnight on the 28
th
September 2014. See
Kleynhans
case; Somdaka v Northern Assurance Co Ltd 1961(4) SA 764 (D); Thomas
v Liverpool and London & Globe Insurance Co.
of SA Ltd; Platjies
v Eagle Star Insurance Co.
1968(4)
SA 141(C).
[15] The period of three
years prescribed in
s 11(d)
of the
Prescription Act must
be computed
in accordance with the civil or common law rule
de
die in diem
,
ie the first day included and the last day excluded where the last
day of the period of prescription thus computed is a Sunday,
the
period nevertheless expires on such Sunday. Prescription is only
interrupted if summons is served before the period expires.
See
S
omdaka
case at
766D-E, 769 A-B.
[16] The court
a
quo
erred in looking to the Interpretation Act, which is specifically
designed for the calculation of the period of time relating to
days,
for clarity and guide in determining the three year period of
prescription, prescribed in
s 11(d)
of the
Prescription Act.
[17
] If upon the
construction of the legislation the intention of the Legislature is
doubtful the whole last day ought to be included
if the expiration of
the period in question would cause the loss of the right. In the
present case the language of the act is clear
and there is a plethora
of decided authorities on the issue. The court
a quo
therefore
misdirected itself in calculating the three years of prescription
mathematically so as to prevent the loss of plaintiff’s
right
to claim due to miscalculation of days by his attorney and on that
basis to include the last day. More so, the magistrate’s
court
as a creature of statute does not possess or derive powers outside
the four corners of the statute by which it is created,
the
Magistrate’s  Court Act 32 of 1944 (the Magistrates Act).
Powers to decide matters on just and equitable of principles
are not
imposed upon magistrates by law. See s 12(1) (2) of the Magistrate’s
Court Act.
ORDER
[18] In the result, I
make the following order:
(a) The appeal is
allowed, with costs.
____________________
Madondo DJP
____________________
Poyo Dlwati J

I agree.
Date reserved: 8
September 2017
Date delivered: 3
November 2017
Plaintiffs’
counsel: Adv Kahn
Instructed by: Theasen
Pillay and Associates
REF: Mr I Pillay/sk/ s397
Defendants counsel: Adv
Anderton
Instructed by: Stowell &
Co Incorporated
REF:  A R IRONS