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[2015] ZAGPPHC 219
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Nhlabathi v Mpumalanga Economic Growth Agency (15315/2013) [2015] ZAGPPHC 219 (23 April 2015)
IN
THE NORTH GAUTENG HIGH COURT, PRETORIA
[REPUBLIC
OF SOUTH AFRICA]
CASE
NUMBER: 15315/2013
DATE:
23 APRIL 2015
In the matter
between:
HAZEL
NHLABATHI
................................................................................................................
APPLICANT
And
MPUMALANGA
ECONOMIC GROWTH
AGENCY
.......................................................
RESPONDENT
JUDGMENT
MAVUNDLA, J.
[1] The Plaintiff
claimed against the defendant the sum of R703 898, 35 with ancillary
reliefs, which amount the plaintiff alleged
was due and payable and
arising out of the death benefits of her late husband Mr Qhinga
Hastings Nhlabathi (“the deceased").
[2] It is common
cause that the deceased was a member of Multikor Pension Fund. The
death benefits prior to retirement were as follows:
2.1 Group life cover
was
.........
R1 178 130. 00
2.2 Member's share
was
..........
R1 015 087. 72
2.3 Spouses cover
was
................
R196 355.00
[3] The Defendant
raised a special plea that:
3.1 The plaintiffs
claim arises from a pension fund benefit wherein the plaintiff was
nominated as a beneficiary by her late husband
who died in 2009. The
plaintiff became aware of the benefits on or about 3rd August 2009;
3.2 The plaintiffs
claim (which is a debt) became due and payable from February 2010 as
per the plaintiffs summons after the other
portion of the claim (the
Group Life Cover) was dully paid by the defendant;
3.3 The plaintiffs
summons was served during or about 21 March 2013, which is more than
three years after the date on which the
claim arose.
3.4 In the premises
plaintiffs claim constitute a debt for purposes of sll (d) and 12 of
the
Prescription Act 68 of 1969
and has therefore prescribed.
The plaintiff denied
that the matter has prescribed.
[4] The defendant
has also on the merits, pleaded that the plaintiff has waived her
right to the benefit from the member's share
and the spousal cover in
favour of the children of the deceased, and her child born of the
marriage between the plaintiff and the
deceased. However, the
plaintiff in her reply to the defendant's plea denied that these
amounts were paid.
[5]
In buttressing the special plea, counsel for the defendant submitted
that the plaintiff's action was in respect of the members'
share in
the sum of R507 543. 86 and the spouse cover in the sum of R196 355.
00, which total amount is a debt that became due
on the death of the
deceased 9 July 2009) alternatively on the date the plaintiff became
aware of the contract (2 February 2010).
It was further submitted
that the plaintiff instituted her claim in this Court three years
later and therefore her claim has prescribed
;
Umgeni
Water and Others v Mshengu
1
;
The Master v IL Back and Co Ltd
2
[6]
It was further submitted on behalf of the defendant that the
plaintiffs allegation that the withdrawal of the claim in the
Magistrate court and subsequent issuing of same in this Court
interrupted prescription has no basis in law. At the time of the
withdrawal of the claim in the magistrate court, the plaintiff's
claim had already prescribed and
s51(l)
of the Act is not applicable,
contrary to the plaintiffs contention. In this regard, the defendant
relied on the matter of
Van
Der Merwe v Protea Insurance Co Ltd
3
where
it was held that: "The whole purpose of
s 15
(2) of Act 68 of
1969 is that, if a creditor fails to prosecute successfully his claim
under the process which interrupts prescription,
either in the court
in which such process commences legal proceedings, or on appeal to a
higher tribunal, or, having been successful
in the initial
prosecution of his claim, abandons the judgment in his favour, or it
is set aside on appeal at the instance of the
debtor, the running of
prescription is deemed not to have been interrupted. Accordingly, if
the creditor commences action in a
magistrate's court, withdraws it
on finding that his claim exceeds the jurisdiction of that court, and
commences a fresh action
in the Supreme Court but only issues summons
therein after the period of prescription, as from the date on which
the cause of action
arose, has expired, then the issue of summons in
the magistrate's court, in which court the creditor had not
successfully prosecuted
his action to final judgment, did not serve
to interrupt prescription and the creditor's right of action in the
Supreme Court is
prescribed."
[7] It is common
cause that the deceased had nominated the following people as his
beneficiaries, namely the plaintiff 50% and his
mother 50%. As the
nominated beneficiary, the plaintiff was entitled to be paid 50% of
the Group life cover of R1 178 130. 00 (R589065.00)
and 50% of the
members' share of R1 015 087.72 (R507543.86) as well as the spouses
cover of R196 355. 00. The sum total the plaintiff
was supposed to be
paid was R589065.00 (Group life cover) + R507543.86 (members' share)
+ R196 355. 00 (the spouses cover) = Rl,
292, 963. 86.
[8] The amount
claimed by the plaintiff is R703 898. 86, which is the sum total of
her 50% member's share and spouse's cover mentioned
herein above.
After hearing submissions on behalf of the defendant, this court
reserved its judgment on the special plea, which
was the only issue
to be determined, and directed the defendant to file within 20 days
all supporting documentation showing the
names of the persons to whom
the amount of R1 015 087. 72, in respect of the member's share, and
R196 355. 00 and the spouses cover
were paid and the form of payment,
as well as relevant bank statements, accompanied with an affidavit
filing such documentation.
[9]
The defendant has since filed an affidavit deposed to by Ms Thandi
Mokwena wherein she stated,
inter
olia,
that:
"3.3
On the 02
nd
of February 2010 the Plaintiff and her mother in law as nominated
beneficiaries were duly paid in each equal shares the benefits
of the
Group Life Cover and each signed and received an equal amount of R474
536.27 after tax and deductions, please see attached
hereto copy of
proof of payment as Annexure "TM1". It needs mentioning
that, the defendant has not paid out the spouse's
cover of R196 355.
00. In my view, the amount of R474 536.27 paid out to the plaintiff
is by far less than what she was entitled
to
4
.
This is an issue that can be best explained through interrogated
evidence during the trial. The defendant, in my view, is in a
position of trust, in relationship with the plaintiff. The dictates
of uberrimae is akin to that is akin to However, in the event
the
special plea were to be upheld, that would be tantamount to slamming
the door in the face of the plaintiff, depriving her of
an
opportunity to get to the truth of this matter.
[10]
Section 12
of
the
Prescription Act provides
:
'(1) Subject to the
provisions of subsections (2) and (3), prescription shall commence to
run as soon as the debt is due.
(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."
[11]
In the matter of
Umgeni
Water v Mshengu
5
it was held that:
'[5]
Section
10 of the Prescription Act, No 68 of 1969 (the Act), provides for the
extinction of a debt after the lapse of periods determined
in s 11.
The period of prescription applicable to the plaintiff's claim is
that provided for in s 11(d) of the Act, namely 3 years.
According to
s 12(1) of the Act, prescription shall commence to run 'as soon as
the debt is due'. The words 'debt is due' must
be given their
ordinary meaning. In its ordinary meaning a debt is due when it is
immediately claimable by the creditor and, as
its correlative, it is
immediately payable by the debtor. Stated another way, the debt must
be one in respect of which the debtor
is under an obligation to pay
immediately.
[6] A debt can only
be said to be claimable immediately if a creditor has the right to
institute an action for its recovery. In
order to be able to
institute an action for the recovery of a debt a creditor must have a
complete cause of action in respect of
it. The expression 'cause of
action' has been held to mean: 'every fact which it would be
necessary for the plaintiff to prove
... in order to support his
right to 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'; or slightly differently stated 'the
entire set of facts which
give rise to an enforceable claim and
includes every fact which is material to be proved to entitle a
plaintiff to succeed in his
claim. It includes all that a plaintiff
must set out in his declaration in order to disclose a cause of
action. Such cause of action
does not "arise" or "accrue"
until the occurrence of the last of such facts and consequently the
last of such
facts is sometimes loosely spoken of as the cause of
action. A plaintiff must thus have a complete cause of action at the
stage
when summons is issued or at any rate when the summons is
served."
[12] The running of
prescription shall be interrupted in terms if sl4 (1) of the Act by
an express or tacit acknowledgment of liability
by the debtor, or in
terms of subsection (2) "If the running of prescription is
interrupted as contemplated in subsection
(1), prescription shall
commence to run afresh from the day on which the interruption takes
place or, if at the time of the interruption
or at any time
thereafter the parties postpone the due date of the debt, from the
date upon which the debt again becomes due."
[13]
Attached to the affidavit of Ms Mokwena is annexure 'TM3",
inter
alia,
which
is a letter from the defendant addressed to the plaintiffs erstwhile
Duke Attorneys date 6 July 2010. It is apposite to chronicle
the
contents thereof in full:
"Your letter
dated 22 June 2010 and our response thereto of June 2010 has
reference.
We hereby like to
inform you that the Trustees took a resolution based on the Benefit
Calculator received from Sanlam.
The Trustees agreed
on the following:
That both the mother
and spouse be excluded from the remaining payout since they received
money from pension savings.
The children be
maintained until the age of 18 years and that all the qualifying
children up to the age of 18 years are allocated
values according to
the maintenance income and therefore remaining balance be distributed
to all 8 children at an equal share each
be maintained;
That all minor
(under 18 years) children's benefits be paid into a Trust Account
until they each reach their maturity. The guardians
will request the
withdrawals as per needs of children and their education;
Lastly, that the
balance of R36 034.28 being the Advance granted to the family for
burial costs by MEGA be deducted equally from
the shares before any
payout of the remaining money since it could not be deducted from
Pension.
We further like to
indicate that the resolution has since been sent to Multikotr
(Sanlam) and you will be informed as soon as the
payment is done."
[14]
In the matter of
Roestorf
v Johannesburg Municipal Pension
Fund
6
the Supreme Court of Appeal held that: "[19]
Section 14
of the
Prescription Act provides
that:
'(1) The running of
prescription shall be interrupted by an express or tacit
acknowledgement of liability by the debtor.
(2) If the running
of prescription is interrupted as contemplated in subsection (1),
prescription shall commence to run afresh from
the day on which the
interruption takes place or, if at the time of the interruption or at
any time thereafter the parties postpone
the due date of the debt
from the date upon which the debt again becomes due.'
In
Agnew v Union and South West Africa Insurance Co
Ltd
1977 (1) SA 617
(A) at 623A this court approved the dictum of Broome
JP in
Petzer v
Radford (Pty) Ltd
1953
(4) SA 314
(N) at 317H: J
'To interrupt
prescription an acknowledgement by the debtor must amount to an
admission that the debt is in existence and that he
is liable
therefor.'
[15]
It is not in dispute that the plaintiff commenced an action in the
Magistrate's Court in which she claimed for the remaining
half of the
pension held by the defendant. She subsequently withdrew that action
and issued a new summons out of the High Court
on 12 March 2013. In
my view the defendant,
vis
a vis
the
plaintiff was in a position of trust. The dictates of trust demand of
the defendant to have
uberrimae
fides,
entailing,
in the circumstances of this case to make full disclosure of what was
due to the plaintiff right from on the onset. The
contents of
annexure "TM3" are lucid and clear admission that the
defendant was still holding some moneys still to be
paid out. This
admission was only made on 22 June 2010.This admission, in my view,
brings this matter squarely within the purview
of the authorities
cited herein supra et infra. As stated in
Erasmus
v Grunow en Ander
7
"Also
the debtor who avers that he has already performed partly admits
liability to the creditor in respect of a particular
debt. It can
certainly not be said in any of these cases that the debtor denies
liability."
8
As Van Heerden J pointed out in
Erasmus
v Grunow en 'n Ander (supra)
that:
'the wording of ss 14(1) and 15(1) of the Act leads to the conclusion
that the legislature intended that a partial acknowledgement
of a
debt should have effect of interrupting prescription in respect of
the whole debt.' In my view, by making partial payments
and
withholding other payments, and by the very fact that the defendant
was still determining and processing final payment, which
fact was
privy not to the plaintiff but to the defendant itself until June
2010, has thereby protected the running of prescription.
The running
of prescription, in my view, could only resume on the date on which
annexure TM3 was received by the plaintiff's attorney,
which must
have been in June 2010.The summons were issued in March 2013 and the
plaintiff's right to claim could therefore not
have prescribed.
[16] In the premises
I conclude and find that the plaintiffs right to sue the defendant
has not prescribed. The special plea stands
therefore to be dismissed
with costs, as I do.
N.M. MAVUNDLA
JUDGE OF THE HIGH
COURT
Date of Hearing:
16/09/2014
Date of Judgment:
23/04/2015
APPLICANTS'
ATTORNEYS: NKOSI ATTORNEYS AND ASSOCIATED
APPLICANTS'ADVOCATE:
NO APPEARANCE
DEFENDANT'S ATT:
MATSANE ATTORNEYS INC
DEFENDANT'S ADV: MR.
F.I. BALOYI.
1
2010(2)
ALL SA 505 (SCA).
2
1983
(1) SA 986
(A).
3
1982
(1)SA 770.
4
Vide
paragraph
[7]
supra.
5
Supra
at
508e-f.
6
2012
(6) SA 184
(SCA) at 189.
7
1978
(4) SA 233
(0) at 244A-D at 244E-245H.
8
Vide
Roestorf case
supra
at
footnote page 190