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[2016] ZAFSHC 8
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Rautenbach N.O. v CMW Operations (EDMS) Bpk (4623/2012) [2016] ZAFSHC 8 (7 January 2016)
IN THE HIGH COURT
OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
number: 4623/2012
In
the matter between:
ANNELIZE
RAUTENBACH N.O.
Applicant
and
CMW
OPERATIONS (EDMS) BPK
Respondent
CONSIDERED:
10 DECEMBER 2015
JUDGMENT
BY:
RAMPAI, J
DELIVERED
ON:
7 JANUARY 2016
[1]
This is an applicant for leave to appeal. The applicant seeks
leave to appeal against my judgment which was delivered
on 19
February 2015. On that day I upheld the respondent’s
special plea of prescription. The respondent opposes
the
application.
[2]
The applicant caused a summons to be issued against the respondent on
12 November 2012. The sheriff served the summons
on 21 November
2012. The applicant sued in her representative capacity as the
executor of the deceased estate of her late husband.
She alleged that
the respondent was an appointed agent of her husband, the late APC
Rautenbach. She further alleged that
as such the respondent was
obliged to have her husband properly insured but wrongfully failed to
do so. These action proceedings
were instituted in an effort to
recover damages allegedly suffered as a result of the respondent’s
alleged failure.
[3]
The respondent repudiated the applicant’s claim. The
defendant’s plea was filed. Together with the ordinary
plea, the respondent also caused a special plea to be simultaneously
filed. The gist of the respondent’s special plea
was that
prescription had since extinguished the applicant’s claim.
[4]
The parties agreed, at the commencement of the hearing, to have the
issues separated. I was then called upon to adjudicate the
respondent’s special plea first. As already indicated, I
upheld the special plea. The applicant was aggrieved by my
decision.
Her dissatisfaction precipitated the current application.
[5]
The grounds on which the application is based were set out in the
notice filed on 3 August 2015.
“
1.
Die agbare Hof het fouteer deur te bevind dat die verjarings termyn
van die eis ‘n aanvang geneem
het op 27 Augustus 2009, en dat
die eis derhalwe verjaar het op 26 Augustus 2012.
2.
Die agbare Hof het fouteer om die getuienis van FUTTER te aanvaar dat
daar op 28 Augustus 2009
‘n gesprek plaasgevind het tussen
FUTTER en Eiseres se agent, met die strekking dat die agent te kenne
gegee het dat Verweerder
nalatig was deur nie sy kontraktuele
verpligtinge n ate kom nie, en moes die Hof die getuienis van die
agent aanvaar het da thy
slegs gesê het dat Verweerder die saak
met die versekeraar moet uitklaar.
3.
Die agbare Hof het fouteer deur te bevind dat Eiseres (of haar agent)
reeds op 27 Augustus 2009
voldoende kennis gedra het van die
wesentlike feite waarop haar eis sou berus, om haar in staat te stel
om ‘n eis te kan
instel.
4.
Die agbare Hof het fouteer deur te bevind dat die eposse van FUTTER,
en die gepaardgaande telefoon
oproepe tussen die partye, Eiseres
voldoende in kennis gestel het van die wesentlike feite waarop haar
eis teen Verweerder gegrond
is.
5.
Die agbare Hof fouteer deur nie te bevind dat waar selfs Verweerder
se werknemer HORN nie op 27
Augustus 2009 bewus was van die
wesentlike feite waarop Eiseres eis gegrond is nie, die Eiseres nie
van derglike feite bewus kon
gewees het nie.
6.
Die agbare Hof het fouteer deur te bevind, in die afwesigheid van
enige getuienis daaromtrent,
en waar dit nie Verweerder se saak was
op die pleitstukke óf in die getuienis nie, dat Eiseres se
agent nie dadelik, behoorlik,
en onafhanklik gepoog het om die feite
van die eis vas te stel nie.
7.
Die agbare Hof het fouteer deur te bevind dat Eiseres se agent nie
redelik opgetree het nie, en
dat die agent derhalwe teen 1 November
2009 bewus kon gewees het van die wesentlike feite waarop die eis
berus, aangesien dit nie
Verweerder se saak was op die pleitstukke
nie, en daar geen getuienis daaromtrent was nie.
8.
Die agbare Hof het gefouteer deur te bevind dat FUTTER en HORN geen
verpligting gehad, ten spyte
van die Eiseres en die agent se navrae,
om die ware stand van sake aan Eiseres te openbaar nie.
9.
Die agbare Hof het fouteer deur nie te bevind dat Eiseres op 27
Augustus 2009 nie kon geweet het
of die kort-betaling van die
versekering te wyte is aan die verbreking van die kontrak deur
Verweerder, óf deur die Versekeraar,
en óf dit slegs ‘n
administratiewe fout was nie, en dat sy derhalwe nie kon geweet het
of sy hoegenaamd ‘n eis
het nie, of indien sy ‘n eis het,
teen watter party, en waarop die eis gegrond is nie.”
[6]
On 28 July 2015 my secretary sent a notice to the parties. They
were informed that the application for leave to appeal
would be heard
on Monday 14 September 2015 at 14:00; that they were at liberty to
dispense with the formal hearing in order to
let me adjudicate the
application in chambers; that the applicant should file the
grounds of her application within a specified
date and that the
parties should file the heads of arguments by specified days.
[7]
The applicant’s heads of argument were filed on 17 August 2015.
The respondent’s heads were filed on 17 August 2015.
On 4
September 2015 the applicant’s attorney, Mr CP Groenewald
advised my secretary, Miss Ntlapa Mopeli, that the parties
had agreed
that the application be informally disposed of in chambers in
accordance with paragraph 2 of the notice of setdown.
Notwithstanding
such practically expedient agreement, the matter remained unattended
until 10 December 2015 on which date I received
an enquiry from
Messrs Azar and Havenga Prokureurs. I was embarrassed to say the
least. I apologise to all concerned for
the inordinate delay.
The delay was due to an oversight on my part.
[8]
Now I turn to the matter at hand. The applicants case was that
her husband, the late APC Rautenbach, and the respondent
entered into
an agreement. She alleged that the material terms of the
agreement were: that the respondent extended
credit to
her husband; that her husband would repay the respondent from
the proceeds of the seasonal harvest earned;
that the
respondent would take out an insurance cover on the life of her
husband in order to secure repayment of monies due to
the respondent,
in the event of her husband’s death and that the proceeds of
such an insurance policy would be utilised to
settle her husband’s
indebtedness to the respondent.
[9]
The applicant alleged, and the respondent conceded at the trial, that
the respondent breached its obligations to properly or
adequately
insure her husband. At the time he died, her husband was
indebted to the respondent to the tune of approximately
R791 442.67.
The figure includes subsequent interest. However, the life
insurance paid out to the respondent an amount of
R300 000.00 only.
As a result of such inadequate proceeds paid out, a staggering
balance of R491 422.67 remained owing to
the respondent by her late
husband’s estate. The action proceedings were concerned
with the claim of that amount.
[10]
The respondent specially pleaded that the applicants claim had
already prescribed at the time the summons was served on 21
November
2012. The respondent’s special case or defence was that
the applicant’s cause of action arose on or
before 24 July 2008
when her husband died but when a credit agreement between APC
Rautenbach and the respondent was entered into.
The respondent
specially pleaded that the claim prescribed three years after it fell
due.
[11]
The onus rested on the respondent to prove the date on which
prescription commenced to run. The respondent had pleaded
that
prescription against the applicant’s claim had commenced to run
on 24 July 2008 or before then when the credit agreement
was signed.
[12]
Given the respondent’s special plea, Mr Swanepoel submitted
that the respondent’s special plea was materially defective.
In the first place, he argued that the special plea was defective in
that the respondent did not specially plead that prescription
had
commenced to run from 27 August 2009 or from any other date other
than 24 July 2008. In the second place, counsel also
argued
that the special plea was defective in that the respondent did not
specially plea that the applicant could, at any time
before October
2010, have ascertained the correct facts from which her claim arose
and the correct identity of the liable debtor
by exercising
reasonable care. [see section 12 [3]
Prescription Act 68 of
1969
].
[13]
Mr de Bruin differed as regards the alleged defects that were
contended
ex
post facto
to be significant omissions in the respondent’s special plea.
Counsel argued that the respondent raised the special
issue of
prescription in its plea; (vide para 2.4 of the plea); that the
applicant as the plaintiff replicated (vide para 1.2 replication);
that it was obvious that the applicant’s case depended on the
provisions of
section 12
[3]
Prescription Act 68 of 1969
and that the
particular section was pertinently raised by the applicant in her
evidence. Moreover it was expressly stated,
in the plaintiff’s
heads of argument relative to the trial, that the plaintiff’s
replication was based on the provisions
of
section 12
[3]
Prescription Act 68 of 1969 (vide para [5] thereof).
[14]
Besides the aforesaid considerations, the issue was fully canvassed
by both parties at the trial. It must be stressed
that it was
so canvassed without any objection from either the applicant or the
respondent. In the light of all these peculiar
circumstances of
this particular case, I was, therefore, perfectly entitled to
globally adjudicate the issue taking into account
not only the narrow
confines of the pleadings but also the broader picture of the ambit
of the issue as amplified by the evidence.
Shield
v Milner
1937 [AD] 201 at 105.
[15]
In
Middleton
v Carr
1949 [2] SA 374 [A] at 386 Schreiner JA had this to say about
unpleaded issues:
“
Generally
speaking the issues in civil cases should be raised in the pleadings
and if an issue arises which does not appear from
the pleadings in
their original form an appropriate amendment should be ought.
Parties should not be unduly encouraged to
rely, in the hope,
perhaps, of obtaining some tactical advantage or avoiding a special
order as to costs, on the Court’s
readiness at the argument
stage, or on appeal to treat unpleaded issues as having been fully
investigated.”
[16]
I have considered the aforesaid decision. However, I am not persuaded
that it can be said that the special defence raised by
the
respondent, which I earlier upheld, was an unpleaded issue as
envisaged in that decision. The contention of the applicant
was, because the respondent specifically pleaded a specific date he
was inextricably tied up to that specific date and no other.
The real issue, as I see it, was prescription and not the specific
date per say. The precise date was a residual consideration.
It was a variable between 21 November 2012, being the date on which
the sheriff served the applicant’s summons on the respondent
and 24 July 2008, being the date on which the applicant’s
husband died.
[17]
The two days defined the perimeters of the respondent’s alleged
special defence or prescription. The latter indicated
the
earliest date on which such prescriptive defence could have arisen.
The former indicated the latest date on which the
running of
prescription could have been interrupted. It was untenable, in
my opinion to argue that the respondent was precluded
from showing,
by evidence, that prescription commenced running on any other day
between those particular two days that demarcated
the ambit of the
prescription period. The date complained of fell squarely
within the demarcated period of prescription.
The applicant’s
argument would have made sense if the respondent’s evidence
established, contrary to its pleading,
that prescription started
running prior to 24 July 2008. The situation was certainly
different here. The scope of the
special plea was narrowed and
not broadened. The narrowing of the respondents defence
entailed no prejudice, actual or potential,
to the applicant.
[18]
Mr Swanepoel submitted that since the respondent never raised, in its
pleadings, the contention that prescription commenced
running on 27
August 2009, or at any subsequent date, I could not correctly have
come to such a finding, in the absence of an amendment
of the
respondent’s pleadings. The submission was flawed. The
essence of my finding was that the applicant could, by
the exercise
of reasonable care, have acquired constructive knowledge firstly of
the identity of the respondent as the liable debtor
and secondly of
the facts from which her claim arose within a reasonable time
commencing on 27 August 2009. I also found
that the applicant
could, long before 10 October 2010, have ascertained the correct
identity and facts through the exercise of
reasonable care.
[19]
I wrote a comprehensive judgment and endeavoured to deal fully with
the legal principles. It was nowhere suggested by
the applicant
in the current application that I misinterpreted or misunderstood or
misapplied the applicable principles.
I carefully analysed the
facts and correctly applied the legal principles to those facts.
I am persuaded by Mr de Bruin’s
submission that the underlying
grounds on which the application for leave to appeal is founded all
deal with factual issues. None
of them concern any question of law.
[20]
The test to be applied in an application for leave to appeal has
recently been qualified. Section 17 [1] [A] [1]
of the
Supreme Court Act 10 of 2013 provides that leave to appeal may only
be granted where the judge is of the opinion that the
appeal would
have a reasonable prospect of success. Mr De Bruin submitted
that the words “only” and the phrase
“of the
opinion” as used in the section should be given due and proper
attention. The essence thereof is that
it is now seriously
incumbent upon the applicant to convince the court, on issues of fact
and law, that a proper case has been
made out for the court to form
the opinion that there is a reasonable prospect of success and that
there is material misdirection
that rendered the judgment
appealable. The applicant failed the test, in my view.
[21]
Nothing significant turned on the omissions or defects in the
respondent pleading. In view of all the reasons given above,
I
am not inclined or persuaded to form the requisite opinion in favour
of the applicant. In the absence of such an opinion
the
application for leave to appeal cannot be granted. Such an
application can only be granted provided I was convinced to form
an
opinion that an appeal would have a reasonable prospect of success.
In my view it has not been shown that a reasonable
prospect exists
that another court may come to a different conclusion.
[22]
In the result I make the following order:
22.1
The application for leave to appeal is dismissed;
22.2
The applicant is directed to pay the costs.
_____________
M.H.
RAMPAI, J
On
behalf of applicant:
Adv. JJC Swanepoel
Instructed
by:
Azar &
Havenga Inc.
Bloemfontein
On
behalf of respondent: Adv. J.P de Bruin
Instructed
by:
Symington
& De Kok
Bloemfontein
/PC