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[2015] ZAGPPHC 194
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Lisbon Estates (Pty) Ltd and Others v Mokoena N.O. and Others (39602/2013) [2015] ZAGPPHC 194 (4 March 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
(
GAUTENG
DIVISION, PRETORIA)
CASE NO: 39602/2013
DATE: 4 March 2015
Not reportable
Not of interest to
other judges
IN
THE MATTER BETWEEN
:
LISBON ESTATES
(PTY) LTD
(IN
LIQUIDATION)
........................................................................................................
FIRST
PLAINTIFF
THEODOR WILHELM
VAN DEN
HEEVER N.O.
…........................................................................................................
SECOND
PLAINTIFF
SEIPATI JANE
SEGOLELA N.O.
…..........................................................................
THIRD
PLAINTIFF
AND
TRYPHINAH MOKOENA
N.O.
…...........................................................................
FIRST
DEFENDANT
NOMSA
NUHLAWURIMANYIKE
N.O.
….....................................................................................................................
SECOND
DEFENDANT
MADODA ISAAC TJIE
N.O.
…..............................................................................
THIRD
DEFENDANT
TOBANI MICHAEL
KHOZA N.O.
…................................................................
FOURTH
DEFENDANT
SIPHO DAVID
MATHEBULA N.O.
…...................................................................
FIFTH
DEFENDANT
JUDGMENT
KOLLAPEN J:
l. The plaintiffs
have instituted action by way of summons seeking payment of the sum
of R8 million arising out of what they contend
was the
misappropriation, at the instance of the defendants, of a mango crop
they owned on a farm situated on the remaining extent
of Farm Lisbon
297, Mpumalanga.
2.
The defendants have defended the matter and have filed a special plea
as well as a plea on the merits. The special plea is a
plea of
prescription.
3.
At the commencement of the trial the parties sought an order in terms
of Rule 33(4) of the Uniform Rules of Court seeking a separation
in
respect of the determination of the special plea from all of the
other issues in dispute. The Court, satisfied that it was expedient
to do so in the interests of possibly curtailing the duration of the
trial, made such an order and the determination of all the
other
matters in dispute, save for the special plea, was postponed
sine
die.
4. The second
plaintiff, Mr Theodor van den Heever, testified on behalf of the
plaintiffs while Ms Badenhorst testified in the defendant’s
case.
THE FACTUAL
BACKGROUND
5. The first
plaintiff is in final liquidation and the second and third plaintiffs
are its duly appointed liquidators. The final
order of liquidation
was granted on the 3
rd
of March 2009 preceded by a
provisional order on the 11
th
of December 2008. The second
and third plaintiffs were appointed as liquidators on the 21
st
of September 2009.
6. All the
defendants are cited as trustees of the Nhlangwini Trust (‘the
Trust’) which is the owner of the property
known as Farm
Lisbon. In August 2004 the first plaintiff, then known as Gazankulu
Vrugteboerdery (Pty) Ltd, concluded a lease agreement
in terms of
which the first plaintiff leased the farm from the Trust for the
purpose of conducting farming operations.
7.
The farm was used for the cultivation of mangos and the case for the
plaintiff is that during the 2008/9 season, it was the owner
of a
mango crop worth no less than R8 million to which it was entitled and
was ready to harvest for its benefit. The plaintiff
alleges that the
Trust instructed various people to harvest and sell the mango crop
and that it has, on account of this misappropriation
of the crop,
suffered damages in the sum of R8 million, being the value of the
crop.
8. The parties are
in agreement that prescription commenced to run from the 21
st
of September 2009 when the second and third plaintiffs were appointed
as liquidators and that summons in this matter was served
on the 2
nd
of July 2013, which on the face of it, is outside the three year
period.
9. Mr Van den Heever
testified that after the provisional order of liquidation, he visited
the farm and interacted and engaged with
amongst others, Frank
Mhlongo, Doctor Sibuyi and one Jones, all of whom he believed were
trustees of the Trust at the time and
during his visits he observed
the harvesting of the mangos. After his final appointment he convened
an inquiry at the Tzaneen Magistrates’
Court for the
interrogation of Mr Mhlongo and Mr Sibuyi which occurred around May
2010. It is not in dispute that Mhlongo, Sibuyi
and eight others were
the trustees of the Trust during that time. They were however
replaced by the first to the fifth defendants
on the 3
rd
of February 2011.
10.
It was not clear from the evidence of Mr van den Heever what
transpired after the 2
nd
of May 2010 until February 2012 when summons was issued against
Mhlongo and nine others, all cited as trustees of the Trust, for
the
recovery of the R8 million. Mr Van den Heever testified that he
understood from his interactions with Mhlongo and Sibuyi that
they
were the trustees, they represented the Trust, and that regard being
had to the make-up of the Trust, they would always be
trustees.
11.
When the Trust was summoned in February 2012, Mr van den Heever used
information that was on file relating to the liquidation
of the first
plaintiff in order to identify the trustees of the Trust. He
described it as information sourced from Absa Bank. It
was not a
letter of authority and he accepted that given that the provisional
order was made in December 2008, the information
would have been from
around that time period.
12.
After service of summons, default judgment and a
nulla
bona
obtained,
sequestration proceedings commenced against the ten trustees cited in
the action. This occurred in June 2012.
13. In the period
July 2012 to September 2012 Mr van den Heever held various meetings
with the representatives of the community
with a view to resolving
the dispute and met in particular with Mr Isaac Tjie, the third
defendant in this action. He states that
he was never told that there
was a change in the composition of the trustees although he formed
the clear impression at the time
of these meetings that there was
strife and division in the Trust and that different groups were
seeking to secure appointments
with the Master as trustees.
14. The default
judgment obtained against the trustees was abandoned in July 2013 and
the provisional sequestration order was set
aside without opposition.
A new summons was prepared, issued and served on the 27
th
of June 2013 and it is the subject of the current action.
15. Mr van den
Heever’s stance was that acting in good faith he was under the
impression that the trustees who were cited
in the 2012 action were
the appointed trustees and in support of this he stated that Mr
Mhlongo and Mr Sibuyi, whom he dealt with,
appeared on the list of
trustees he had sourced from the liquidation file.
16.
In cross-examination he conceded that no inquiry was made at the
office of the Master of the High Court to obtain current information
prior to the issue of the 2012 summons and that while it was
preferable and important to have done so, he was brought under the
impression that there was no change in the composition of the
trustees. In this regard he had no interaction with Mhlongo or Sibuyi
after May 2010 and he made an assumption from the Absa Bank document
he found on file that the trustees in 2012 when summons was
being
prepared, were the same as those reflected on that document. As
stated earlier it is not clear what document was being referred
to
but it must have been a document from at least 2008.
17. Ms Badenhorst
testified that she worked at the office of the Master of the High
Court in Pretoria for some years and while no
longer employed there,
she continues to work with and interact with that office. She states
that the procedure for obtaining a
copy of a letter of authority in a
Trust is relatively simple. A written request with reasons is
submitted to the Master and the
copy of the Letter of Authority is
then provided after payment of a fee for copying. The process takes
about three days from request
to receipt of the document requested.
ANALYSIS
18.
The crisp issue for determination in the adjudication of the special
plea is whether regard being had to
Section 12(3)
of the
Prescription
Act 68 of 1969
, it could be said that reasonable care had been
exercised by the plaintiffs to establish the identity of the
defendants.
Section 12(3)
provides as follows:
“
(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.
”
19. The defendants
have also raised two other issues which may require determination
depending on how the above issue is resolved.
They are briefly that
in terms of
Rule 14
, the Trust could have been sued as a firm.
Secondly, that even if the incorrect defendants were cited in the
2012 action, an amendment
was possible to cure the defect.
20.
On what is before me and regard being had to the factual sequence,
which is substantially not in dispute, can it be said that
the
plaintiffs exercised reasonable care in their attempts to identify
the debtors?
In
GERICKE
v
SACK
1978
(1) SA 821
(AD)
the Court said:
‘
In
order to determine the meaning which the Legislature intended to give
to the words “identity of the debtor” in
section 12(3)
of
the
Prescription Act, 68 of 1969
, they should be read in the context
in which they are used in the Act. In order to establish such
identity, regard will have to
be had to the particular circumstances
of each case, but for practical purposes there should be sufficient
information for the
process-server to be able to identify the debtor
by name and address.’
21.
In
GUNASE v
ANIRUDH
2012
(2) SA 398
(SCA) the Court expressed itself as follows:
‘
Section
12(3)
imposes a duty on the creditor to exercise reasonable care to
obtain knowledge of the identity of the debtor and the facts from
which the debt arises. A creditor is not allowed to postpone the
commencement of the running of prescription by his failure to
take
necessary steps. In
Burley
Appliances Ltd
v
Grobbelaar NO and
Others
2004
(1) SA 602
(C) at 607G Nel J said that-
‘
the
declarator is contrary to the established principle that a creditor
cannot by supine inaction arbitrarily and at will postpone
the
commencement of prescription’.
See
also
Consol Ltd
t/a Consol Glass
v
Twee Jonge
Gezellen (Pty) Ltd and Another (2)
2005
(6) SA 23
(C) para 26; and
Uitenhage
Municipality
v
Molloy
[1997] ZASCA 112
;
1998
(2) SA 735
(SCA) at 742A-C
In
Drennan Maud
& Partners
v
Pennington Town
Board
[1998] ZASCA 29
;
1998
(3) SA 200
(SCA) at 209F-G Oliver JA said:
‘
Section
12(3)
of the Act provides that a creditor shall be deemed to have the
required knowledge “if he could have acquired it by exercising
reasonable care”. In my view the requirement “exercising
reasonable care” requires diligence not only in the
ascertainment of the facts underlying the debt, but also in relation
to the evaluation and significance of those facts. This means
that
the creditor is deemed to have the requisite knowledge if a
reasonable person in his position would have deduced the identity
of
the debtor and the facts from which the debt arises’
In
Leketi
v
Tladi NO and
Others
[2010]
3 All SA 519
(SCA) para 18 Mthiyane JA said:
‘
It
seems to me that the adverse operation of
s 12(3)
is not dependent
upon a creditor’s subjective evaluation of the presence or
absence of “knowledge” or minimum
facts sufficient for
the institution of a claim. In terms of
s 12(3)
of the
Prescription
Act, the
“deemed knowledge” imputed to the “creditor”
requires the application of an objective standard rather than
a
subjective one. In order to determine whether the appellant exercised
“reasonable care”, his conduct must be tested
by
reference to the steps which a reasonable person in his or her
position would have taken to acquire knowledge of the “fraud”
on the part of Albert’
22.
Clearly on the uncontested evidence, the information with regard to
the identity of the debtor (the Trust) was available at
the office of
the Master and I did not understand Mr van den Heever, a liquidator
of some standing and with considerable experience,
to say he was
unaware of this. A reasonable person in the position of the plaintiff
would have accessed that information using
the available procedures
and that would have ensured that the identification of the debtor(s)
to be sued was ascertained with certainty
and accuracy.
23.
Whatever Mr van den Heever may have believed at the time is hardly
relevant given the view expressed by MTHIYANE JA in
LEKETI
(supra)
that the deemed knowledge is to be assessed objectively and not
subjectively .
24.
In my view it could hardly be said that any steps worthy of mention
were taken to identify the debtor. The reliance on a 2008
document to
issue summons in 2012 was unreasonable and accordingly I must
conclude that it could hardly be said that the plaintiff
exercised
reasonable care in the circumstances of the matter.
25. In the
circumstances the special plea must be upheld.
ORDER
26.
I make the follow order:
i.
The
special plea is upheld with costs.
ii.
The
action is dismissed with costs.
N
KOLLAPEN
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA
36902/2013
HEARD ON: 10
FEBRUARY 2015
FOR THE PLAINTIFFS:
ADV P.F. ROSSOUW and ADV. B. HUTCHINSON
INSTRUCTED BY: DE
VRIES INCORPORATED
(ref: A
Bonnet/BH/Lvdn/D&T67/0001)
FOR THE DEFENDANTS:
ADV. A P J ELS
INSTRUCTED BY:
WIEKUS DU TOIT ATTORNEYS (ref: du Toit/N9/13)