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[2016] ZAGPPHC 623
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Kruger v Director of Public Prosecutions (37681/2011) [2016] ZAGPPHC 623 (28 April 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
GAUTENG
DIVISION, PRETORIA
DATE:
29/4/2016
CASE
NUMBER: 37681/2011
(1)
REPORTABLE: NO
(2)
OF INTEREST TO OTHER JUDGES: NO
ARRIE
WILLEM
KRUGER PLAINTIFF
and
DIRECTOR
OF PUBLIC
PROSECUTIONS DEFENDANT
JUDGMENT
STRYDOM
AJ:
1.
The Plaintiff’s cause of action is based upon alleged
"wrongful
and malicious proceedings, instigated against the Plaintiff by
persecutors, prosecuting the matter whilst acting
in the course and
scope of there employment with Defendant.
"
[1]
2.
At the commencement of the trial the parties applied by agreement,
that there should be a separation of issues as provided for
in terms
of Rule 33(4) and that the trial should only proceed in respect of
the Defendant's first special plea of prescription.
I accordingly
granted separation of the issues as requested.
SPECIAL
PLEA OF PRESCRIPTION
3.
The Plaintiff inter alia alleges that, on 6 October 2009, the
prosecutor prosecuting the matter, opposed the Plaintiff's bail
application
[2]
and insisted that
the Plaintiff remains in custody for a further period of seven (7)
days in the Diepkloof Correctional Facility.
[3]
It is common cause between the parties that (a) all the criminal
charges against the Plaintiff were withdrawn by a Prosecutor of
the
Defendant on 13 October 2009 in the Plaintiff's and his legal
representatives' presence; and that (b) the Plaintiff's summons
was
served on the Defendant on 31 January 2013.
3.1.
The
Defendant's
case
is
that since all charges was withdrawn against the Plaintiff on 13
October 2009;
[4]
all the facts
necessary for the Plaintiff to institute an action against the
Defendant (as pleaded by the Plaintiff), were within
the knowledge of
the Plaintiff on the latter day, as envisaged by section 12(3) of the
Prescription Act, 1969,
[5]
(hereafter
"the
Act"
).
The Defendant further submitted that it is the only institution in
the Republic of South Africa that has the power to institute
criminal
proceedings on behalf of the State and to carry out any necessary
functions incidental thereto. The Plaintiff, being represented
by a
legal team on
13
October 2009
by necessary inference had to know that the Defendant is the only
entity which has the authority to institute criminal proceedings
or
withdraw them. It is therefore the Defendant's case that, having
regards to the fact that the Plaintiff’s summons was
served on
the Defendant on 31 January 2013, the Plaintiff’s claim has
become prescribed in terms of Section 11 of the Act,
due to the fact
that summons was served more than three (3) years after the date on
which the Plaintiff’s claim arose, being
13
October 2009.
3.2.
The Plaintiff's case on the other hand, is that the Defendant
(debtor) wilfully prevented him from coming to know of the Identity
of the debtor and the
existence
of the debt
,
as envisaged by Section 12(2) of the Act. The Defendant did this by
withholding the South African Polices Services (hereafter
"the
SAPS"
)
Docket
pertaining to the arrest and detention of the Plaintiff and the
Court
file
(of the proceeding in the Magistrate's Court for the District of
Randburg), from the Plaintiff, and only made these documents
available on 31 August 2012. Only after the Plaintiff was placed in
possession of the latter documents did he gain the necessary
knowledge to issue Summons against the Defendant. The Plaintiff
relied for this rebuttal of the Defendant's First Special Plea
of
prescription on the provisions of Sections 12(2) and (3) of the
Act.
[6]
4.
At the commencement of the trial the Counsel for the Defendant
conceded that the Plaintiff through his attorneys had taken
reasonable
steps to acquire knowledge of the facts, from which the
Plaintiff’s claim arose.
4.1.
The Defendant's Counsel, Adv Pretorius, submitted that the documents
the Plaintiff’s attorneys acquired during August
2012 played no
rol in the running of prescription; because the Plaintiff had
acquired sufficient knowledge of the facts of his
claim against the
Defendant on 13 October 2009
[7]
to trigger the running of prescription of his claim on that day.
4.2.
In accordance with her submission, Adv Pretorius further submitted
that the parties should prepare and submit a Stated Case
to Court,
which the Plaintiff’s Counsel, Adv Uys, rejected.
5.
The parties relied on the same authority in support of their
respective cases.
RELEVANT
LEGAL PRINCIPLES
6.
It is trite law that in regard to Extinctive Prescription:
[8]
"...time
begins to run against the creditor when it has the minimum facts that
are necessary to institute action. The running
of prescription is not
postponed until a creditor becomes aware of the full extent of its
legal rights, nor until the creditor
has evidence that would enable
it to prove a case 'comfortably'."
7.
The facts in the judgment of
Truter
EA v Deysel
[9]
are analogous to the facts
in
casu
,
therein that both matters dealt with extinctive prescription of debt
in the form of a delict.
The
court a quo in the matter of Truter found in favour of the plaintiff
and held that
"...
prescription did not start to run in respect of Deysel's alleged
claim until such time as Dr Steven's opinion was obtained,
and the
special plea had no merit."
The Supreme Court of Appeal however disagreed and found as
follows:
[10]
"[16]
I am of the view that the High Court erred in this finding. For the
purposes of the Act, the term 'debt due' means a
debt, including a
delictual debt, which is owing and payable. A debt is due in this
sense when the creditor acquires a complete
cause of action for the
recovery of the debt, that is, when the entire set of facts which the
creditor must prove in order to succeed
with his or her claim against
the debtor is in place or, in other words, when everything has
happened which would entitle the creditor
to institute action and
pursue his or her claim.
[17]
In a delictual claim, the requirements of fault and unlawfulness do
not constitute factual ingredients of the cause of action,
but are
legal conclusions to be drawn from the facts: 'A cause of action
means the combination of facts that are material for the
Plaintiff to
prove in order to succeed with his action. Such facts must enable a
Court to arrive at certain legal conclusions regarding
unlawfulness
and fault, the constituent elements of a delictual cause of action
being a combination of factual and legal conclusions,
namely a
causative act, harm, unlawfulness and culpability or fault.'
[18]
In the words of this Court in Van Staden v Fourie
(1989 (3) SA 200
(A) at 216D):
'Artikel
12(3) van die Verjaringswet stel egter nie die aanvang van verjaring
uit totdat die skuldeiser die volle omvang van sy
regte uitgevind het
nie. Die toegewing wat die Verjaringswet in hierdie verband maak, is
beperk tot kennis van 'die feite waaruit
die skuld ontstaan.'
[19]
'Cause of action' for the purposes of prescription this means:
'...every
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. "'
8.
In the judgment of
Claasen
v Bester
[11]
, the principles
enunciated in the matters of
Truter
and
Gore
were confirmed and applied. In Truter it was found that:
"[15]
These cases clearly do not leave open the question posed and not
answered in Van Staden. They make abundantly clear that
knowledge of
legal conclusions is not required before prescription begins to run.
There is no reason to distinguish delictual claims
from others. The
principles laid down have been applied in several cases in this court
including most recently Yellow Star Properties
1020 (Pty) Ltd v MEC
Department of Development Planning and Local Government Gauteng
2009
(3) SA 577
(SCA)
[2009] 3 All SA 475
, par.[37] where Leach AJA said
that if the applicant had not appreciated the legal consequences
which flowed from the facts its
failure to do so did not delay the
running of prescription. "
THE
EVIDENCE
9.
Two witnesses testified on behalf of the Plaintiff, being the
Plaintiff himself (Mr A W Kruger) and his attorney of record (Mr
Greyling Erasmus). The Defendant did not call any witness to testify
on its behalf. The witnesses testified in Afrikaans, while
the trial
was conducted in English.
The
Plaintiff (Mr A W Kruger)
10.
The Plaintiff testified pertaining to the events that lead up to his
arrest and incarceration on 6 October 2009. During 2008
he had
business dealings with a person by the name of Brain Johnston
(hereafter
"Johnston"
) who undertook to
repair motor cycles for him. A dispute arose as a result of which the
Plaintiff collected his motor cycles and
spare parts from the
premises of Johnston. Johnston laid a false and unfounded criminal
complaint against the Plaintiff with the
SAPS. During October 2009
the Plaintiff was contacted by the Investigating Officer, dealing
with the Complaint of Johnston, and
he was asked to attend to the
Douglasdale Police Station in order to finalise the charged which was
laid against him. The Plaintiff
was under the impression that he was
only required to sign a document. However on his arrival at the said
Police Station he was
asked by the Investigating Officer to accompany
him to the Randburg Magistrates' Court. The witness was adamant that
he was not
arrested at that time by the SAPS.
11.
At the Magistrates' Court he followed the Investigating Officer into
the Court cells. The Investigating Officer turned around
and closed
the cell door behind him, thereby locking the Plaintiff into the
cell. When he asked the said Officer what was going
on, he was told:
"Jy weet wat jy gedoen het".
12.
When the Plaintiff appeared in Court he was asked whether he wanted
legal representation, which he confirmed. He cannot recall
that any
enquiry was made in respect of bail. Mr Kruger testified that he
could not hear clearly what the prosecutor and the presiding
Magistrate was saying to him and one another. He was informed by a
person who sat next to him what was happing in court. It never
occurred to the witness to inform the court that he was not able to
hear what was said. The next fact he remembers is that the
Police
Ordinance told him that he should accompany him. He was taken in a
truck, together with other accused persons, to the Diepkloof
Correctional Facility, where he was detained for seven (7) days.
Whilst on the way to the latter prison (and while still in the
Truck)
he managed to contact his brother on a cell phone and arrange for an
attorney to defend him. The Plaintiff’s brother
secured the
services of an attorney who consulted with him while he was still
incarcerated in the Diepkloof Correctional Facility.
13.
During
cross examination
the witness indicated that his
present attorney of record (Mr Erasmus) was not part of his legal
team at that time. His attorney
of record was Mr Gerhard van Willige,
but Adv Uys, his present Counsel, was part of his legal team. Mr
Kruger indicated that both
Adv Uys and Mr van Willige consulted with
him on the third day after he was detained in the said Prison.
14.
On
13 October 2009
the Plaintiff was again brought before the
Randburg Magistrates' Court. At this time he was represented in Court
by Adv Uys. All
the charges were withdrawn against the Plaintiff in
his, as well as his legal teams', presence.
15.
The Plaintiff testified in his affidavit, which was prepared by his
legal team on his behalf for purposes of his bail application
intended to be submitted to Court on 13 October 2009, that he was
advised by his attorney of record to institute a
civil
claim
against the complainant (Mr Johnson)
alternatively
against the Minister of Police on the grounds of unlawful arrest.
[12]
Mr Kryger confirmed in
cross
examination
that he disposed of the affidavit, that the content thereof was
correct and that it was drafted by his legal representatives.
16.
He further testified that he consulted the first time with Mr
Greyling Erasmus, his present attorney of record, during or about
July 2010. Mr Erasmus requested him during this consultation to
attempt to obtain the SAPS Docket, which he did, but was unsuccessful
in his attempts.
Mr
Greyling Erasmus
17.
Mr Erasmus testified that he consulted with the Plaintiff during on
or about
March or April 2010
. He initially advised the
Plaintiff to institute action against the person who laid a criminal
complaint against him with the SAPS
(Mr Johnson) upon which he was
arrested. Mr Erasmus however advised the Plaintiff that he do not
foresee any prospects of success
in recovering monies for damages
suffered from Mr Johnson. The witness further testified that he then
advised the Plaintiff that
he should rather instituted a claim for
damages against the Minister of Police.
18.
The Plaintiff at one stage indicated to Mr Erasmus that the events
and procedure were too traumatic for him and that he did
not want to
proceed with it any further. Mr Erasmus, as a consequence hereof,
closed the Plaintiff's file with his attorney's firm.
19.
The Plaintiff however contacted Mr Erasmus again in July 2010 and
indicated that he was then desirous to proceed with civil
action for
damages against the Minister of Police. Mr Erasmus testified that he
did not immediately after consultation with the
Plaintiff proceed to
issue summons against the said Minister. He first initiated steps to
attempt to obtain a copy of the Plaintiff's
Docket from the SAPS. He
did this, because he did not have sufficient information to institute
civil action for damages against
the Minister of Police. Mr Erasmus
was however not able to secure a copy of the said SAPS Docket; but
notwithstanding that he did
eventually issued Summons against the
Minister of Police.
20.
The witness was however adamant that he was not able to issue summons
against the Defendant because he did not have knowledge
of the
Identity
of the Defendant (as debtor) and
the facts from
which the Plaintiff's cause of action arose
. Only after he was
placed in possession of the SAPS Docket pertaining to the arrest and
detention of the Plaintiff did these facts
became came known to him
and was he able to issue summons on behalf of the Plaintiff against
the Defendant. Mr Erasmus only obtained
a copy of the SAPS Docket at
the end
August 2012
, subsequent to which summons was issued
against the Defendant and served on it on
31 January 2013
.
21
.
Mr
Erasmus testified during cross examination that when the prosecution
withdraw criminal charges against an accused person he understand
that it means that
"Die
Staal gaan nie voort met vervolging nie."
On further prompting of Mr Erasmus by Counsel for the Defendant on
what he understood the legal consequences is of withdrawal of
a
criminal case by the State
[13]
his cryptic answered was:
"Wanneer
hulle nie 'n saak het nie."
22.
It was pointed out to Mr Erasmus in cross-examination that it does
not make sense that he was able to issue summons against
the Minister
of Police,
without the content of the SAPS
Docket, but not
against the Defendant. Mr Erasmus was asked why he did not deem it
prudent to also institute action against the
Defendant (The Director
of Public Prosecutions) without being in possession of a copy of the
SAPS Docket and a copy of the Court
file. Mr Erasmus insisted that he
was unable to issue summons without having knowledge of the SAPS
Docket pertaining to the prosecution
and detention of the Plaintiff
by the Defendant.
23.
Mr Erasmus conceded in cross examination that he issued Summons
against the Minister of Police in order to prevent the claim
from
prescribing. He indicated that the reason for this was because his
instruction from his client was that the SAPS detained
the Plaintiff
after they mislead him to come to the relevant SAPS Station.
According to his instructions the criminal complaint
by Johnston was
false. On the information Mr Erasmus had, the SAPS wrongfully
arrested his client. Mr Erasmus had no information
that indicated
that the Prosecuting Authority went on a frolic of their own. Hence
he did not issue summons against them.
24.
I inquired from the witness whether he will accept, that
shortly
after the Defendant's attorney of record (Mr Olwage) received a copy
of the Plaintiff’s relevant SAPS Docket,
[14]
made a copy thereof available to him. His answer was:
"Ek
het geen rede om dit te betwis nie."
25.
Adv Uys vehemently objected to my question. I rejected his objection,
firstly
because the answer was already given; and,
secondly
because there was no legal basis for the objection. I merely asked
the later question in order to ascertain if this fact would
be an
issue of dispute between the parties. The answer of Mr Erasmus
disposed thereof. It was clear to me that Adv Uys held a different
view from that of the witness. Mr Erasmus was a good witness. He was
cool, calm and collected and his demeanour was of utmost curtesy.
There was no duress placed on Mr Erasmus to make the concession. In
my view the answer was given truthful by Mr Erasmus. I accordingly
for the record, noted the aforesaid concession
made by Mr
Erasmus.
Parties
closed rest there cases
26.
The Plaintiff hereafter closed its case in respect of the Defendant's
First Special Plea.
27.
Ostensibly due to the concession by the Plaintiff’s attorney of
record, Counsel for the Defendant decided not to call
any witnesses
and also closed the Defendant's case.
EVALUATION
& DISCUSSION
28.
It is clear from the
evidence of Mr Kruger
that he was,
shortly after his detention (on 6 October 2009) and thereafter at all
relevant times, represented by legal representatives.
29.
On 13 October 2012 all criminal charges against Mr Kruger was
withdraw by the prosecutor who acted on behalf of the Defendant
in
open court; and, more in particular in the presence of the Plaintiff
and his legal team. Most notable, Mr Uys, the Plaintiff's
present
counsel also represented the Plaintiff in court on 13 October 2009
when all criminal charges were withdrawn against him.
Wilfully
prevention by the debtor
30.
The legal consequence of the concession made by Mr Erasmus is that
the Defendant failed to prove that the Defendant wilfully
prevented
the creditor (Plaintiff) "
from coming to know of
"
the existence of a debt as envisaged by Section 12(2) of the Act,
because there is no evidence to support this inference.
30.1.
In his Heads of Argument, the Counsel for the Plaintiff indicated
that he intends to
"only focus on
Section 12(3)
of the
Prescription Act."
In
my view this was done because there is
no evidence to support any reliance by the Plaintiff on section 12(2)
of the Act.
30.2.
A careful examination of the pleadings indicates that the Plaintiff
blames the Minister of Police (as a creditor) and not
the Defendant,
from preventing him from ascertaining the aforesaid
existence of a
debt
. The Minister of Defence is not a party to these
proceedings.
Abudandum cautella
, the Defendant, on the
pleadings, did not
prevent
the Plaintiff from gaining access
to the SAPS Docket (or the Court file) in order to obtain the
information it allegedly needed.
31.
It follows accordingly that the Plaintiff failed to prove that the
Defendant wilfully prevented him (as the creditor) from coming
to
know of the existence of the debt (cause of action), as envisaged by
Section 12(2) of the Act.
Identity
of the debtor
32.
The next question to consider is the Plaintiff’s
"knowledge
of the Identity of the debtor",
as envisage by Section 12(3)
of the Act.
32.1.
Although Mr Erasmus testified, and the Plaintiff in his evidence
alluded thereto, that the
Identity
of the Defendant (as
debtor), was unknown to them, before they where place in possession
of the SAPS Docket, this is simply untrue
due to the following
considerations:
32.1.1.
Mr Erasmus testified that he was also unable to issue summons against
the Minster of Police on the basis that he did not
have
sufficient
information to institute civil action for damages against the
Minister of Police without the contents of the SAPS Docket
. This
would obviously also have included the Identity of the said debtor.
Nonetheless, Mr Erasmus was able to identify this debtor
and indeed
issue summons against the said Minister, without a copy of the SAPS
Docket.
32.1.2.
Furthermore, only two possible institutions could have been able to
arrest and prosecution (and be liable for unlawful arrest
and I or
wrongful and malicious proceedings) in respect of the Plaintiff after
Johnson made a false criminal complain against the
Plaintiff: The
SAPS (under the Minister of Police) and the Defendant. Summons was
issued against the Minister of Police but not
against the Defendant.
32.1.3.
The Defendant (normally acting through its prosecutors) 1s the only
institution m the Republic of South Africa that has
the authority to
institute and withdraw criminal proceedings on behalf of the State
against a person and to carry out any necessary
functions incidental
thereto.
32.1.4.
It was the actions of Defendant's prosecutor(s), acting within the
scope of their employment, which lead to the incarceration
of the
Plaintiff for 7 days on 6 October 2009. It was the Defendant's same
prosecutor(s) who withdraw all criminal charges against
the Defendant
on 13 October 2009.
33.
I accordingly find that the Plaintiff and his legal team, at all
relevant times since the Plaintiff's cause of action arose
on 13
October 2009, had knowledge of the Identity of the Defendant (as
debtor).
Actual
of deemed knowledge
34.
The following issue to consider is whether the Plaintiff (Mr Kruger)
had actual or deemed knowledge of
"the facts from which the
debt arises"
as required by section 12(3) of the Act, on 13
October 2009.
34.1.
The only facts necessary to have been within the knowledge of the
Plaintiff in order for him to have been able to institute
this action
against the Defendant, as pleaded by the Plaintiff, was the fact that
the charges against him was withdrawn by the
Defendant.
34.2.
The legal consequence of a withdrawal of all charges against an
accused is that the State (represented by the Defendant) no
longer
intends to prosecute the accused for an alleged criminal offence,
primarily because it do not have a
prima
facie case against the accused.
The absence of a prima facie case ultimately signifies that there is
no
reasonable prospect of a successful prosecution of the accused by the
State
.
[15]
The evidence indicates, as repeatedly found above, that all charges
were withdrawn against the Plaintiff on 13 October 2009, in
open
court and in the presence of the Plaintiff's and his legal team.
34.3.
I have absolute no doubt that the Plaintiff’s attorney know
exactly what the legal (and factual) consequences is when
the state
withdraw a criminal charge against an accused. This notwithstanding
his cryptic answers in cross examination in this
regard. In the event
the Plaintiff did not understand what the legal consequences of the
fact was, that the Defendant withdrew
all charges against him, he
could have acquired that that knowledge by exercising reasonable care
and seeking an answer from his
legal team. Moreover, the Plaintiff’s
legal team had a legal duty to inform him what the legal effect the
withdrawal of the
charges by the Defendant was, and advise him about
his rights in this regard, including claims that he may have had
against any
wrongdoer.
34.4.
Actual knowledge of the Identity of the Defendant as well as of the
facts that sustain the Plaintiff's claim was proved and
therefore the
Defendant was not required to prove constructive knowledge of the
facts (from which his cause of action arose) by
the Plaintiff. The
Defendant accordingly correctly conceded at the commencement of the
trial that the Plaintiff had taken reasonable
care through his
attorney to acquire knowledge of the facts relating to his claim.
35.
I am of view, with reference to the aforesaid considerations, that on
13 October 2009
Plaintiff
new or ought to have known
that, since the Defendant withdrew all charges against him, the
Defendant did not have any reasonable prospects to prosecution
him
successfully. This is sufficient facts to sustain a cause of action
for
"wrongful and malicious proceedings, instigated against
the Plaintiff by persecutors, prosecuting the matter whilst acting in
the course and scope of there employment with Defendant.
"
36.
The submission on behalf of the Plaintiff, that the Plaintiff (or his
legal team) only acquired knowledge of the facts from
which his claim
against the Defendant arose during the end of August 2012, after
receiving a copy of the SAPS Docket and procuring
a copy of the court
file; and, that prescription thus only started to run from this date,
is rejected.
36.1.
No so-called
"new cause of action"
arose once the
SAPS Docket and/or the court file was obtained by the Plaintiff and
his legal team. As indicated above, the cause
of action arose the
moment when the all the criminal charges were withdrawn against the
Plaintiff and the criminal proceedings
were ended on 13 October 2009.
36.2.
The procurement of the content of SAPS Docket and/or the court file
only confirmed
facta probanda
(i.e. the facts to be proved in
order to establish the cause of action). The facts contained in the
documents the Plaintiff (and/or
his legal team received during August
2012 were only
facta probantia
(facts proving the
facta
probanda
). It is trite law that a Plaintiff need not have every
jot and tittle of evidence to be aware of the fact that he has a
cause of action
against the Defendant. The only facts required
to establish a cause of action are the
facta probanda
, (and
not the
facta probantia
) which in this case is that all the
criminal charges were withdrawn against the Plaintiff. The
facta
probantia
is irrelevant with regards to the question as to
whether a cause of action arose or not (
in casu
whether the
debt has become due and payable).
37.
The Defendant, who raised extinctive prescription against the claim
of the Plaintiff, was required to
allege
and prove the date of inception of the period of prescription
.
[16]
The Defendant alleged that the
"Plaintiff's
claim fell due on
6
October 2009
".
[17]
The Defendant however went further and pleaded:
"The
Plaintiff's summons was served on the Defendant on 31 January 2013,
which is more than three (3) years after the date
on which the
plaintiff's claim arose."
[18]
38.
Pleadings are made for the Court and not the Court for pleadings.
[19]
It is my duty to determine what the real issues between the parties
are, provided that no possible prejudice can be caused to either
party, and to decide the case on the real issues.
[20]
38.1.
The evidence of the Plaintiff is that the charges against him by the
Defendant's employees were withdrawn on
13 October 2009
, being
7 days later, than the date alleged by the Defendant.
38.2.
Adv Pretorius submitted, in
Opening Argument
, that the
prescription against the Plaintiff started to run on
13 October
2009
. She also indicated this date in her Closing Argument and in
her Heads of Argument. No amendment was sought by the Defendant in
this regard. Counsel for the Plaintiff did not at any relevant time
object to the submission in respect of the date on the ground
that it
is contrary to the Defendant's pleadings.
38.3.
Adv Uys
correctly
pointed out, in his Heads of Argument, that
the Plaintiff could not have had knowledge of the facts relating to
his claim on 6
October 2009. This is so because according to the
evidence (presented by the Plaintiff), the Plaintiff was charged and
incarcerated
on the latter day. The Plaintiff however shortly
hereafter (in fact 7 days) gained the required extent of knowledge
when all criminal
charges against him were withdrawn.
39.
I can foresee no prejudice for the Plaintiff if I make a finding
on the proven facts. It was proved, albeit by the evidence of the
Plaintiff, that prescription started to run on
13 October 2009
instead of 6 October 2009.
39.1.
It is
common
cause
that summons against the Defendant was only issued on 31 January
2013. This a substantial time longer than three years after the
cause
of action arose. I can think of no reasonable ground to consider that
further examination of the facts will lead to a different
conclusion.
[21]
40.
Accordingly the Defendant in my view is not required to amend its
Plea in respect of the date of inception of prescription of
the
Plaintiff's claim from 6 October 2009 to 13 October 2009.
CONCLUSION
41.
On a conspectus of the evidence presented before me and the authority
referred to above the unavoidable inference is that the
Plaintiff's
claim has prescribed in terms of the provisions of
Section 11
of the
Prescription Act no. 68 of 1969
, before the Plaintiff’s Summons
was delivered on the Defendant on 31 January 2013.
COSTS
41.1.
The remaining issue to consider is costs. Counsel for the parties was
of view that the costs should follow the result. I can
see no
reasonable reason to deviate from their submission.
ORDER
The
following order is made:
1.
The Defendant's First Special Plea is upheld and the Plaintiff’s
claim is dismissed.
2.
The Plaintiff is ordered to pay the Defendant's cost.
_____________
J.S.
STRYDOM
ACTING
JUDGE OF THE
NORTH
GAUTENG HIGH COURT,
PRETORIA
Appearances:
Counsel
for the Plaintiff:
Adv. PL Uys
Instructed
by:
Gildenhuys Malatje Inc.
Counsel
for the Defendant:
Adv. LA Pretorius
Instructed
by:
State Attorney, Pretoria
Date
of Trial:
15 October 2015
Date
of Judgment:
28 April 2016
[1]
See: Record p 3, par 3.
[2]
See: Record, p 7, par 9.1.
[3]
See: Ibid, par 9.2
[4]
The Defendant alleged in its Plea (Record, p 15, par 3) "that
the Plaintiff's claim fell due on 6 October 2009 ". However
in
opening address Counsel for the Defendant submitted that
prescription of the Plaintiff's claim began to run on 13 October
2009. The Plaintiff never raised the issue that the latter date is
not in accordance with the Defendant's plea. I will deal with
this
issue in more detail hereunder.
[5]
Act No. 68 of 1969.
[6]
Sections 12(2)
and (3) of the
Prescription Act 68 of 1969
provides
as follows:
"Where
prescription begins to run -
(1)...
(2) If the debtor
wilfully prevents the creditor from coming to know of the existence
of the debt, prescription shall not commence
to run until the
creditor becomes aware of the existence of the debt.
(3) A 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
that a creditor shall be deemed to have such knowledge if he could
have acquired it by exercising
reasonable care. "
[7]
Counsel for the Plaintiff submitted that this submission was made
with reference to the date of 6 October 2009. My notes however
indicate that the date on 13 October 2009 in this regard.
[8]
See:
Minister
of Finance and Others v Gore N.O.
2007 (1) SA 111
(SCA)
[2007] 1 All SA 309
at par. [17] per Cameron
JA and Brand JA. Judgment quoted in
Truter
EA v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA) at par
[14]
.
[9]
See:
Truter
EA v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA).
[10]
See: Ibid, paras. [16]. [17], [18] and [l9].
[11]
2012 (2) SA 404
(SCA).
[12]
See: Trial Bundle D, page 111
[13]
The question that was asked by Adv Pretorius was "
Wanneer
trek die Staal 'n saak terug?"
[14]
See: Court Bundle A; Annexure "AWK1 ", page 28.
[15]
See: Du Toit, De Jager, Skeen &Van der Merwe,
Commentmy
on the Criminal Procedure Act
,
p 1-49, par 2; Comp.
Minister
of Finance and Others v Gore NO
2007 (I ) SA 111 (SCA).
[16]
See:
Gerieke
v Sack
1978 (1) SA 821
(A).
[17]
See: Record, Pleadings, p
15, Par. 3.
[18]
See: Ibid, Par. 4.
[19]
Comp.
Robinson
v Randfontein Estates GM Co Ltd
1925 AD 173
at 198.
[20]
See: Erasmus,
Superior
Court Practice
,
2"d Ed. Van Loggenberg, Vol 2. p D1-229 and the authority
quoted in footnote I .
[21]
Comp. Middleton v Car
1949 (2) SA 374
(A) at 386.