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[2016] ZAGPPHC 1218
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Makhondo v Praga Technical (Pty) Ltd (41276/2015) [2016] ZAGPPHC 1218 (17 November 2016)
IN
THE HIGH COURT OF SOUTH AFRICA
(GAUTENG
DIVISION, PRETORIA)
CASE
NO: 41276/2015
17/11/2016
REPORTABLE
OF
INTEREST TO OTHER JUDGES
In the matter between
SIMON THABANG
MAKHONDO
Plaintiff
and
PRAGA
TECHNICAL (PTY)
LTD
Defendant
Date of Hearing: 23
August 2016
Date of Judgment:
JUDGMENT
BARNES
AJ
Introduction
1.
In October 2010, the Plaintiff in this matter, Mr Simon Thabang
Makhondo ("Mr Makhondo"), was working in the
Defendant's
factory when his left hand was crushed by the machine he was
operating. As a result of the injury, four fingers on
Mr Makhondo's
left hand had to be amputated.
2.
On 2 June 2015, Mr Makhondo instituted action against the Defendant,
Praga Technical (Pty) Ltd ("Praga"), for
damages arising
out of the incident. Mr Makhondo alleges that the injury to his hand
was caused by Praga's negligence in various
respects. Mr Makhondo
claims R1 205 000.00 in damages.
3.
In addition to denying liability on the merits, Praga raised a
special plea of prescription in response to Mr Makhondo's
claim. At
the commencement of the trial, the parties agreed that the special
plea would be dealt with as a separate and preliminary
issue in terms
of Rule 33(4).
4.
As will become apparent below, Mr Makhondo defends the special plea
on the basis that he only became aware of his claim
against Praga on
19 May 2015 and that, interms of section 12(3) of the Prescription
Act 68 of 1969 ("the Act"), prescription
only commenced
running from that date.
5.
This judgment deals with the meaning to be given to the phrase
“knowledge of the identity of the debtor” in
section
12(3) of the Act and with whether Praga has discharged its onus of
proving that Mr Makhondo had actual or constructive
knowledge of its
identity as his debtor prior to October 2013, which is when Praga
contends that the claim prescribed.
The
Pleadings
6.
Praga raised its special plea of prescription in the following terms:
"a. The Plaintiffs claim is based
on delict, which cause of action or injuring incident took place
during October 2010; the
Plaintiffs claim arose on this date;
b. Plaintiffs summons was served on
the Defendant during June 2015, which is more than three years after
the date on which the claim
arose;
c. In the premises, Plaintiffs claim
prescribed In terms of section 11 of Act 68 of 1969."
7.
Mr Makhondo anticipated a special plea of prescription in his
Particulars of Claim. He pleaded as follows in paragraph 5 thereof:
7.1
At the time that his injury occurred, Mr Makhondo was employed
by a labour broker known as Enje Into Labour Solutions ("Enje").
Enje had placed Mr Makhondo at Praga.
7.2
Therefore, at the time of his injury, Mr Makhondo was not
employed by Praga. This meant that a claim by Mr Makhondo against
Praga
was not ousted by the provisions of the Compensation for
Occupational Injuries and Diseases Act 130 of 1993 ("COIDA").
7.3
Following his injury, Mr Makhondo submitted Workman's
Compensation claim.
7.4
Mr Makhondo only became aware of his right to claim against
Praga
"when the newspaper article on the claims against the
Defendant were (sic) published on 19 May 2015."
8.
In its Plea, Praga responded as follows to paragraph 5 of Mr
Makhondo's Particulars of Claim:
"The Defendant takes note of the
allegations contained herein and admits that the Plaintiff was not
employed by the Defendant
at the time of the incident."
9.
Praga therefore did not deny the averments made in paragraph 5 of Mr
Makhondo's Particulars of Claim, including Mr Makhondo's
averment
that he only acquired knowledge of his right to claim against Praga
on 19 May 2015.
10.
Counsel for the Plaintiff, Mr Van den Bogert, led Mr Makhondo in
evidence. I set out his evidence below.
The Evidence of the
Plaintiff
11.
Mr Makhondo was born in 1987 and is currently 29 years of age.
12.
Mr Makhondo was born and raised in Maka Village in the North
West Province. He attended primary school and high school up to Grade
8. He left school, having completed Grade 8, at the age of 20 and
began looking for employment.
13.
During 2007 or 2008 - he could not remember precisely when -
Mr Makhondo found employment at Praga through Enje. Praga
manufactures
motor vehicle components. Mr Makhondo was employed at
Praga as a press machine operator.
14.
On a day in October 2010, again Mr Makhondo could not recall
the precise date, while operating Praga's press machine, Mr
Makhondo's
left hand was crushed. As a result, four fingers on Mr
Makhondo's left hand had to be amputated. Mr Makhondo spent five
weeks in
hospital.
15.
The following year, in January 2011, while attending a medical
check-up, Mr Makhondo's doctor advised him that he was entitled to
claim Workman's Compensation. Mr Makhondo's doctor explained to him
how this was done and gave him the necessary forms to complete.
16.
In February 2011 Mr Makhondo submitted his Workman's
Compensation claim.
17.
On 19 May 2015, Mr Makhondo saw a newspaper article which
reported that some of his co-workers had instituted damages claims
against
Praga for injuries sustained while working there.
18.
Mr Makhondo met with these co-workers in order to confirm that
the information reported inthe newspaper article was correct. They
confirmed this and referred Mr Makhondo to their attorneys,
Gildenhuys Malatji Inc. Mr Makhondo arranged and attended a
consultation
with the same attorneys. Summons was issued on 2 June
2015.
19.
When asked why he had not instituted action against Praga
prior to June 2015, Mr Makhondo stated that it was only when he saw
the
newspaper article that he became aware that he may have a claim
against Praga because of his injury. Prior to this, he had believed
that he only had a Workman's Compensation claim. Mr Makhondo stated
that this had been confirmed by a superior at Praga, Mr Joe
Maravosa,
who had told him that Praga was insured through Workman's
Compensation and that there was
"no way"
that a
claim could be brought directly against Praga.
20.
Cross examination of Mr Makhondo on behalf of Praga was
perfunctory. Mr Makhondo was asked to confirm that he had sustained
his
injury in October 2010 and that he knew that the press machine
which had caused his injury belonged to Praga. He did so.
21.
Mr Makhondo was not challenged on any aspect of his version
set out above, including his testimony as to how and when he became
aware of his right to claim against Praga.
22.
No evidence was led on behalf of Praga.
The
Applicable Law
23.
As is apparent from the above, Mr Makhondo sought to defend
the special plea on the basis that he only acquired knowledge of the
identity of his debtor, as contemplated in section 12(3) of the Act,
on 19 May 2015.
24.
Section 12(3) of the Act provides as follows:
"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."
25.
As the High Court noted
in
Mokau v
Eskom
Holdings
Soc
Ltd:
[1]
"Section 12(3) of the Act
introduces a departure from the ordinary rules of prescription in
order to deal with the extraordinary
situation of a creditor who does
not have knowledge of the identity of the debtor or of the facts
giving rise to his or her claim.
In that case, even though the
relevant factual events have occurred to establish a claim, if the
creditor lacks the necessary knowledge,
the prescriptive period will
not begin to run."
[2]
26.
The legal principles applicable in cases where a plaintiff
relies on section 12(3) of the Act in defence of a special plea of
prescription
are well established.
27.
With regard to onus of
proof, this rests on the defendant who raises the plea of
prescription. Importantly, this includes the onus
to prove the date
on which the plaintiff acquired actual or constructive knowledge of
the debt. In
Macleod v
Kweyiya
[3]
the Supreme Court of Appeal ("SCA") held as follows:
"This court has repeatedly stated
that a defendant bears the full evidentiary burden to prove a plea of
prescription,
including the date on which the plaintiff acquired
actual or constructive knowledge of the debt.
The burden shifts
to the plaintiff only if the defendant has established a prima facie
case. In
Gericke v Sack
1978 (1) SA 821
(A)
at
8270 - G the court stated
'It
will at times be difficult for a debtor who pleads prescription to
establish the date on which the creditor first learned his
identity
or, for that matter, when he learned the date on which the delict had
been committed.
But
that difficulty must not be exaggerated. It is a difficulty which
faces litigants in a variety of cases and may cause hardship
- but
hard cases, notoriously, do not make good law. It is not a principle
of our law that the onus of proof of a fact lies on
the party who has
peculiar or intimate knowledge or means of knowledge of that fact.
The incidence of the burden of proof cannot
be altered merely because
the facts happen to be within the knowledge of the other party. See
R
v Cohen,
1933 TPD
128.
However, the courts take
cognisance of the handicap under which a litigant may labour where
facts are within the exclusive knowledge
of his opponent and they
have in consequence held, as was pointed out by Innes Jin
Union
Government v (Minister of Railways) v
Sykes,
1913 AD
156
at p 173 that:
'less
evidence will suffice to establish a prims facie case where the
matter is peculiarly within the knowledge of the opposite
party than
would under other circumstances be required.
But
the fact that less evidence may suffice does not alter the onus which
rests on the respondent in this
case."
[4]
(emphasis
added)
28.
Thus, in order to discharge its onus, a defendant who raises a
plea of prescription must establish, at least on a
prima facie
basis, that the plaintiff had actual or constructive knowledge of
the identity of the debtor and the facts necessary to bring his
or
her claim more than three years prior to the institution of the
action.
29.
This was confirmed by
the Constitutional Court in the recent case of
Links
v Department of Health
,
Northern Province:
[5]
"The question for determination
is whether the applicant's claim had prescribed by 6 August 2009 when
he served summons. That
in tum depends upon the interpretation of the
provisions of
s 12(3)
of the
Prescription Act and
the application of
those provisions to the facts of this case.
The
respondent bears the onus to prove that the applicant's claim had
prescribed by the given date. In order for the respondent
to prove
that he must show that prescription began to run against the
applicant's claim not later than 5 August 2006. This is so
because
the period of prescription applicable is three years. In the context
of
s 12(3)
the respondent must show what the facts are that the
applicant was required to know before prescription could commence
running.
The respondent must also show that the applicant had
knowledge of those
facts on
or before 5 August 2006."6 (emphasis added)
[6]
30.
Thus, in the matter at
hand, it was necessary for Praga to establish, at least on a
prima
facie
basis, that Mr
Makhondo knew or ought reasonably to have known that Praga was his
debtor prior to October 2013. If Praga succeeded
in doing this, then
an evidentiary burden would shift to Mr Makhondo to rebut the
prima
facie
case against him.
[7]
If, however, Praga failed to establish a
prima
facie
case in this regard,
then its special plea cannot succeed.
The
Parties' Submissions
31.
At the outset, Ms Mentz, who appeared for Defendant, submitted
that the Plaintiff had been obliged to file a replication in order
to
plead reliance on section 12(3) of the Act and, not having done so,
was not entitled to rely on this section in order to defend
the
special plea. Ms Mentz submitted further that the Defendant was
prejudiced by the Plaintiffs failure to file a replication
because it
did not know what case it had to meet.
32.
There is no merit in this point. Proof of actual or
constructive knowledge on the part of Mr Makhondo of the identity of
his debtor
formed part of the onus resting on the Defendant. There
was no duty on the Plaintiff to file a replication in these
circumstances.
Furthermore, as has been set out above, the Plaintiff
anticipated the special plea in his Particulars of Claim and pleaded
that
he only acquired knowledge that he had a claim against Praga on
19 May 2015. The Defendant therefore knew precisely what case it
had
to meet.
33.
On the merits, Ms Mentz submitted that this was a matter in
which a
prima facie
case establishing prescription could be
inferred from the pleadings and that it was therefore unnecessary for
the Defendant to lead
evidence in order to discharge its onus.
34.
Ms Mentz submitted that it was clear from the pleadings and
from Mr Makhondo's evidence that, on the date of his injury, Mr
Makhondo
had been aware of the identity of Praga and of the fact that
it was Praga's machine which had caused his injury. Therefore,
submitted
Ms Mentz, at the time that the injury occurred, Mr Makhondo
had knowledge of the identity of the debtor for purposes of section
12(3) of the Act. The fact that Mr Makhondo may not have known that
he was entitled to claim against Praga did not assist him.
Ms Mentz
made the point in her heads of argument in the following terms:
"A distinction should be drawn
between whether the plaintiff knew the identity of the defendant, and
his awareness of his right
to claim against the defendant. The
plaintiff is attempting to merge these two issues into one concept,
whilst it is in actual
fact two very distinct issues."
35.
Ms Mentz submitted, in the alternative, that if Mr Makhondo
had not known the identity of his debtor at the time of his injury,
he ought reasonably to have acquired this knowledge prior to October
2013.
36.
Mr Van den Bogert, for the Plaintiff, submitted that there was
no evidence to show that Mr Makhondo had knowledge of the identity
of
Praga as his debtor prior to 19 May 2015. For that reason alone,
submitted Mr Van den Bogert, the Defendant's special plea had
to
fail.
37.
Mr Van den Bogert submitted further that the Court should take
account of:
37.1. the purpose of the Act, and
section 12(3) in particular, which is to prevent negligent and not
innocent inaction; and
37.2. the fact that the Act is
required to be interpreted in accordance with section 39(2) of the
Constitution with due regard to
the right of access to Courts.
38.
Mr Van den Bogert submitted that the effect of the above
considerations is that:
"A court should be hesitant to
come to a finding that a creditor had knowledge of the identity of
the debtor and/or the facts
from which the debt arises, if doubt
exists in this regard, on the evidence presented to court and if such
a finding would effectively
oust the plaintiff's claim due to the
operation of the Act."
Analysis
39.
Mr Van den Bogert is correct in his submission that the Act,
and in particular section 12(3) thereof, seeks to prevent negligent
rather than innocent inaction.
40.
The SCA has held that
"the statutory
prescription periods are meant to protect defendants from undue delay
by litigants who are laggard in enforcing
their rights
[8]
•and
that
"prescription
penalises unreasonable inaction, not inability to act."
[9]
41.
In
Macleod v Kweyiya,
the SCA made the point with
specific reference to section 12(3) of the Act:
"It is the negligent and not an
innocent inaction that
s 12(3)
of the
Prescription Act seeks
to
prevent...."
[10]
42.
It is also correct that the Act, like all legislation, must be
interpreted in accordance with section 39(2) of the Constitution.
This means, in the context of section 12(3) of the Act, that due
regard must be had to the fundamental right of access to courts.
43.
In
Links v Department of Health, Northern Province
the Constitutional Court held as follows:
"The provisions of s 12 seek to
strike a fair balance between, on the one hand, the need for a
cut-off point beyond which
a person who has a claim to pursue against
another may not do so after the lapse of a certain period of time if
he or she has failed
to act diligently, and, on the other, the need
to ensure fairness in those cases in which a rigid application of
prescription legislation
would result in injustice.
As
already stated, in interpreting s 12(3) the injunction in s 39(2) of
the Constitution must be borne in mind. In this matter the
focus is
on the
right entrenched in
s 34 of the Constitution.
[11]
(emphasis
added)
44.
In my view, however, the narrow construction which the
Defendant seeks to place on the phrase "knowledge of the
identity of
the debtor" in section 12(3) of the Act is untenable
on its own terms. It fails to take proper cognisance of the use of
the
word debtor in the subsection. If accepted, the Defendant's
interpretation would mean that creditor (A) who is aware of the
existence
of B but has no knowledge that B is his or her debtor has
knowledge of the identity of B
as a debtor
simply by virtue of
his knowledge of the existence of B. This cannot be correct.
Knowledge of the identity of the debtor must logically
include an
awareness on the part of the creditor that the party concerned is his
or her debtor.
45.
In my view, the
construction contended for by the Defendant is also not supported by
the case law. Instructive in this regard is
the SCA judgment in
MEC
for Education, KwaZulu-Natal v Shange.
[12]
46.
In that case the tip of a teacher's belt had struck a learner
in the eye while the teacher was administering corporal punishment
to
another learner. The teacher told the learner that the incident had
been a mistake and the learner accepted that explanation.
Some years
later, a friend of the learner's mother asked about the eye patch he
was wearing and upon hearing of the incident suggested
he complain to
the Pubic Protector. The learner did so and was advised to lay a
claim against the MEC for Education in the Province.
The SCA held
that it was only at that stage that the leaner learned that the MEC
was his debtor. The SCA held as follows in this
regard:
"The respondent's affidavit comes
closer to addressing the real question. He states that an advocate in
the office of the Public
protector advised him, in January 2006, to
institute a civil claim against the appellant. Unfortunately the
respondent's legal
representatives did not appreciate the
significance of this fact. Its disclosure, evidently for the first
time, informed the respondent
of the identity of the appellant as the
joint debtor with the teacher who injured him. He was a rural learner
of whom it could
not be expected to reasonably have had the knowledge
that not only was the teacher his debtor, but more importantly, that
the appellant
was the joint debtor.
Only
when he was informed of this fact did he know the identity of the
appellant as his debtor for the purposes of the provisions
of s 12(3)
of the Prescription Act.”
[13]
(Emphasis
added)
47.
This judgment makes it clear, in my view that "knowledge
of the identity of the debtor" in terms of section 12(3) of the
Act includes an awareness by the creditor that the party concerned is
his or her debtor.
48.
While it is not strictly necessary for purposes of this
judgment to take this enquiry any further, it is clear that the
interpretation
contended for by the Defendant would mean that
prescription would run against a plaintiff such as Mr Makhondo and
effectively extinguish
his claim regardless of the circumstances in
which he failed to pursue his claim or of whether his conduct
pursuant thereto was
negligent or entirely innocent. Such an
interpretation would undermine the purpose of section 12(3) of the
Act. Moreover, given
its adverse impact on the right of access to
courts, it is an interpretation which, in accordance with the
injunction in section
39(2) of the Constitution, is to be avoided.
For these reasons too, the Defendant’s construction cannot be
accepted.
49.
Ms Mentz submitted that not accepting the Defendant's
interpretation would
"open the floodgates and will allow
every party who
faces a
special plea of prescription to
a
clearly defined debt to merely claim ignorance about his or her
right to claim."
This submission loses sight of the
important rider to section 12(3) of the Act. In terms thereof the
creditor is deemed to have
knowledge of the identity of the debtor if
he or she could have acquired it by the exercise of reasonable care.
It is thus always
open to a party who raises a special plea of
prescription to demonstrate that the creditor ought reasonably to
have known that
he or she had a claim against the debtor concerned.
Moreover, if a
prima facie
case were established in this
regard, the creditor would bear an evidentiary burden to rebut it.
50.
Each case is accordingly assessed on its own facts with
reference to what was reasonable in the circumstances. There is no
spectre
of the floodgates opening in this context.
51.
It is to the assessment of the facts of this case that I now
turn.
52.
The issue to be determined is whether Praga has discharged its
onus of proving that Mr Makhondo had actual or constructive knowledge
of the identity of Praga as his debtor prior to October 2013.
53.
Mr Makhondo's case was that it was only when he saw the
newspaper article on 19 May 2015 that he became aware that he may
have a
claim against Praga. Prior to that he believed that he only
had a Workman's Compensation claim. Mr Makhondo's version in this
regard
was not denied by the Defendant in its pleadings, nor was it
challenged by the Defendant in cross examination.
54.
The Defendant has therefore failed to make out a
prima
facie
case of actual knowledge on the part of Mr Makhondo of the
identity of Praga as his debtor prior to October 2013.
55.
It remains to consider the question of constructive knowledge.
Can it be said that Praga has proved that Mr Makhondo ought
reasonably
to have known, prior to October 2013, that he had a claim
against it.
56.
As noted above, Ms Mentz submitted that this was a case in
which a
prima facie
case of prescription could be inferred
from the pleadings. However, it is also evident from what has been
set out above that the
Defendant did not plead constructive knowledge
on the part of Mr Makhondo. Nor did the Defendant lay any basis in
cross examination
for its assertion that Mr Makhondo ought reasonably
to have known that he had a claim against it.
57.
Against this must be weighed the evidence of Mr Makhondo. The
manner in which his evidence is to be assessed was described by the
SCA in
Macleod v Kweyjya
in the following terms:
"It is the negligent and not
innocent inaction that
section 12(3)
of the
Prescription Act seeks
to
prevent and courts must consider what is reasonable with reference to
the particular circumstances in which the plaintiff found
him or
herself."
[14]
58.
Mr Makhondo's actions must be assessed with due regard to his
level of education and employment. Given Mr Makhondo's circumstances,
it can neither be assumed nor expected of him that he be acquainted
with the legal remedies available to him in the event of a
workplace
injury. Moreover, as Mr Van den Bogert pointed out, Mr Makhondo only
had a claim against Praga because he was employed
by a labour broker
- something that most people would not be aware of. Indeed, the
intricacies of the triangular relationship between
labour broker,
worker and client is a subject that confounds many lawyers let alone
lay persons.
59.
Mr Makhondo's doctor advised him that he could claim Workman's
Compensation as a result of his injury. Upon being so advised, Mr
Makhondo submitted his claim promptly.
60.
Mr Makhondo testified that he believed that he only had a
Workman's Compensation claim arising out of injury. He testified
further
that this was confirmed by a superior at Praga. Mr Makhondo's
evidence in this regard was unchallenged.
61.
Given these facts, and particularly the confirmation that Mr
Makhondo received from Praga, I am of the view that Mr Makhondo's
belief
was a reasonable one in the circumstances.
62.
Notably, in this regard Mr Makhondo was misinformed of his
rights by the very company that now seeks to argue that he had
constructive
knowledge of his right to claim against it.
63.
Mr Makhondo laboured under the belief that he only had a
Workman's Compensation claim until he saw the newspaper article
reporting
that certain of his co-workers had sued Praga for damages.
On learning of this, Mr Makhondo again acted promptly in seeking
confirmation
from his co-workers and in obtaining legal
representation. Summons was issued just two weeks after Mr Makhondo
had sight of the
newspaper article. As Mr Van den Bogert correctly
submitted, this is not a plaintiff who was laggard in enforcing his
rights once
he became aware of them.
64.
For all of the above reasons, I am of the view that Mr
Makhondo's actions were reasonable in the circumstances and that
Praga failed
to make out a
prima facie
case of constructive
knowledge on his part. Even however, if I am wrong in this regard and
there is a basis to say that Praga made
out a
prima facie
case
of constructive knowledge then I am of the view that this was
effectively rebutted by Mr Makhondo in his evidence.
65.
In the circumstances, Praga has failed to discharge its onus of
proving constructive knowledge on the part of Mr Makhondo
of the
identity of Praga as his debtor.
66.
I accordingly make the following order:
1. The special plea is dismissed with
costs.
______________________
BARNES
AJ
Appearances:
For
the Plaintiff: Adv D Van den Bogert instructed by Gildenhuys Malatji
Inc
For
the Defendant: Adv S Mentz instructed by Dyason Incorporated
[1]
2015
JDR 1500 (GJ); [2015] ZAGP JHC 135 (3 July 2015)
[2]
At para 24
[3]
2013 (6) SA 1 (SCA)
[4]
At para 10
[5]
2016 (a) SA 414 (CC)
[6]
At para 24.
[7]
It is clear that this would be an evidentiary burden only. See in
this regard
Mokau v
Eskom Holdings (supra) at paras 11 and 12
[8]
Minister of Finance and Others v Gore N.O.
2007 (1) SA 111
(SCA) at
para 16
[9]
Van Zijl v Hoogenhout
2005 (2) SA 93
(SCA) at para 19.
[10]
At para 13.
[11]
At para 26. See also Makate v Vodacom Ltd
2016 (4) SA 121
(CC) at
paras 90 and 91
[12]
2012 (5) SA 313 (SCA)
[13]
At para 11
[14]
At para 13.