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[2013] ZAGPPHC 82
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Wessels v Coetzee (4896/08) [2013] ZAGPPHC 82 (15 March 2013)
REPORTABLE
NORTH GAUTENG HIGH COURT, PRETORIA
CASE
NO: 4896/08
DATE
HEARING: 2013/02/07
DATE:15/03/2013
In
the matter between:
WESSELS
FREDERICK
JACOBUS
.....................................................
Applicant
and
COETZEE
MARIUS
…..............................................................................
First
Respondent
WARDENS
CARTAGE
CC
…..................................................................
Second
Respondent
JUDGEMENT
VICTOR
J
[1]
The applicant seeks to join the third and fourth respondents to this
action. The respondents oppose the joinder on the basis
that the
claim has prescribed. This raises two questions for determination:
whether prescription should run anew in circumstances
where a plea is
amended to withdraw an admission that the correct party was before
court and whether joinder is a process which
interrupts prescription.
[2]
The founding affidavit is very detailed. It is deposed to by an
attorney. He places on record the full history of the matter.
I shall
not repeat the exercise, save to deal with the salient points.
[3]
The applicant instituted action against the first and second
respondents for damages in the amount of R3 867 400 arising out
of a
sulphuric acid spill on a public road on 21 August 2007. The
applicant alleges in his particulars of claim that his motor
vehicle
was damaged when it drove through the sulphuric acid spilled by a
tanker owned by the second respondent. The necessary
details
pertaining to those damages are fully pleaded in the particulars of
claim.
[4]
There is a novel element in this matter. The first and second
respondents defended the action and on 16 April 2008 and filed
a plea
to the applicant's particulars of claim, wherein they admitted that:
the second respondent was the owner of the tanker,
there was a
mechanical malfunction, the truck overturned and sulphuric acid
leaked from a hatch on the truck. It was not denied
that the first
defendant was the driver of the truck nor was it denied that the
first respondent was acting within the course and
scope of his
employment with the second respondent.
[5]
This plea must have been a source of comfort to the applicant. Some
14 months later the respondent did a complete volte facie.
On 23 June
2009 the first and second respondents gave notice of intention to
amend their plea in terms of which they allege that
the first
respondent was the depot manager of third respondent and that the
tanker which caused the sulphuric acid spill was then
being driven by
Mr Tuto the fourth respondent who was acting within the course and
scope of his employment.
[6]
The applicant in this joinder application states its cause of claim
very fully and avers that it will continue to hold the first
and
second respondents liable because ultimately there might an
apportionment if they are found to be joint wrongdoers in terms
of
the Apportionment of Damages Act.
[7]
It is undisputed that it was only on 23 June 2009 that the applicant
for the first time was advised of the true entities and
personae who
could be liable for the damages that is the third and fourth
respondents. When the plea was received on 16 April 2008,
there was
no need for the applicant to take any further steps to seek out
whoever might in addition have been responsible for the
sulphuric
acid spill and the consequent damages. It took the first and second
respondents 14 months to discover their own error.
[8]
The applicant has attached to this joinder application the various
pleas as well as the intended amendment and has also set
out in great
detail in its notice of intention to amend the cause of claim that it
intends pursuing against the third and fourth
respondents.
[9]
In the prayer of the intended amendment to the particulars of claim
the following is stated:
"Wherefore
the plaintiff prays for judgment against the first and second
defendants jointly and severally the one paying the
other to be
absolved, alternatively, against the third and fourth respondents
jointly and severally the one paying the other to
be absolved,
alternatively the second and alternatively the third defendant”
[10]
It is clear from this joinder application what it is the applicant
intends claiming against the third and fourth respondents
and
includes the amount of money, the rate of interest and the cost of
suit. The undisputed time line underpins the factual matrix
upon
which the legal principles of prescription must be adjudicated.
[11]
It is the respondent's case that it had notified and completed the
amendment by 29 June 2009 within the three year period of
prescription calculated within three years from 21 August 2007.
Therefore any amendment which the applicant wishes to effect should
have been effected by 21 August 2010.
[12]
The issue of prescription must be analysed upon the legal principles
emanating from a proper interpretation of both s12 and
s15 of the
Prescription Act No 68 of 1969. (The
Prescription Act). Although
s12(3)
was not particularly emphasised during argument, it is of
importance to the unique facts in this particular matter.
[13]
In terms of
s12
(1) of the
Prescription Act:
‘
Prescription
shall commence to run as soon as the debt is due.’
s12(3)
of the
Prescription Act provides
:
'(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.’
[14]
Having regard to the undisputed facts it is important to note that
whilst the debt may have become due on the day of the collision
in
2007, the applicant clearly did not have knowledge of the identity of
the present third and fourth respondents as debtors until
the
amendment to the plea was launched.
[15]
The proviso to subsection 12(3) the
Prescription Act defines
that a
creditor shall be deemed to have knowledge if he could have acquired
it by reasonable care. There is ample case law in respect
of that
proposition. In particular it is quite clear that if a creditor
simply remains supine and does not take any further steps
to progress
the claim the
Prescription Act penalises
negligence and inactivity.
[16]
Heher JA in the case of Blouberg Meat Wholesalers CC v Anglo Dutch
Meats Export Ltd
2004 (3) SA 160
SCA, para 16 stated:
There
is no unfairness in this conclusion as the Court a quo seems to
think. Prescription penalises negligence and inactivity. Judged
according to the legislative intention the respondent remained absent
and inert for more than three years. Both short comings are
ascribable to the failure to take reasonable precautions from the
time of preparing the summons to the belated awakening. The power
of
correction always lay with the respondent.'
[17]
In this case the applicant did whatever he could to ascertain the
identity of the debtor and in fact was reassured that it
was the
correct debtor based on the plea. It was not necessary for the
applicant to take further steps to seek out any other debtors.
He did
not remain inert or supine and accordingly there is no necessity for
the applicant to be penalised for any negligence or
any inactivity in
the manner in which he has conducted this litigation. The question of
knowledge of the new debtor’s identity
however does not end the
enquiry.
Does notification of new debtor within
the prescription period cause the prescription period to run afresh?
[18]
It is the respondent's case that the applicant should have instituted
its claim by 20 August 2010 since it had notified the
applicant of
the new debtor within the prescription period and on June 2009. This
meant that the applicant should have instituted
its joinder
application then and progressed the matter. In my view
s12(3)
of the
Prescription Act applies
and it is only when the knowledge of the
debtors comes to the attention of a creditor that prescription begins
to run albeit that
the first and second respondents provided that
information.
[19]
I find that the earliest reasonable date upon which the applicant
find the true identity of the debtor is of importance and
that was 10
June 2009 when the notice of intention to amend the plea was served
and is thus the operative date. The finding that
I have made means
that the prescription period runs from 10 June 2009 until 10 June
2012. The joinder application was launched
on 19 January 2011 well
within the period of prescription.
[20]
The joinder application has now been formally been completed with
the
handing down of this judgement in March 2013. The amended summons and
particulars of cfaim must still be served. The final result
of the
joinder application is well after the date of 10 June 2012. The crisp
issue at this stage is whether the launch of the joinder
application
on 19 January 2011 was sufficient to interrupt prescription or
whether the outcome of the joinder application was necessary
and the
formal procedures thereafter effected before the joinder becomes
effective.
[21]
Section 15
(1) the
Prescription Act provides
:
The
running of prescription shall, subject to the provisions of
subsection 2, be interrupted by the service on the debtor of any
process whereby the creditor claims payment of the debt.’
In
s15
(6) the
Prescription Act:
‘
For
the purposes of this Section ‘process’ includes a
petition, a notice of motion a Rule Nisi, a pleading in reconvention,
a third party notice referred to in any Rule of Court and any
document whereby legal proceedings are commenced.’
[22]
There are two conflicting judgements as to whether a joinder
application is indeed such a process as envisaged in
s 15(6)
and thus
sufficient to interrupt prescription. The respondents have submitted
that the service of the joinder notice was merely
an informative step
advising the applicant that it intended to join them to the
proceedings. It is common cause that the joinder
process was
incomplete as at 10 June 2012. The applicant on the other hand
contends that the service of the joinder application
amounted to a
service of a process thus interrupting prescription.
[23]
In Naidoo and another v Lane and another
1997 (2) SA 913
Meskin J
held:
That
a joinder of a defendant did not constitute a process as envisaged by
Section 15(2)
or subsection
(4)
of the
Prescription Act.’
[24
]
Meskin J in Naidoo looked for support for this interpretation at
s15(5)
of the
Prescription Act ‘If
any person is joined as a
defendant on his own application, the process whereby the creditor
claims payment of the debt shall be
deemed to have been served on
that person on the date of such joinder. ‘
[25]
The decision in Naidoo decision has not been followed by any other
court and in this regard there is the matter of Waverley
Blankets Ltd
v Shoprite Checkers Pty Ltd and another 2002(4) SA 166C as well as a
more recent case of Beil Estates v Renasa Insurance
Company Ltd and
another 2012(3) SA 296 KZD where Madondo J found that a joinder
application is a process and it is a process as
envisaged in terms of
Section 15(6)
of the
Prescription Act and
thus sufficient to
interrupt prescription.
[26]
The cases of Bell Estates and that of Waverley Blankets both indicate
that a sufficiently close link between the joinder application
and a
final judgment sounding in money in the plaintiffs favour is
sufficient to interrupt prescription. Any other construction
would be
artificial and unjust and would tend to defeat the purpose of the
statute. I am in respectful agreement with the principles
set out in
Waverley and Bell.
[27]
A proper reading on the various subsections of
s15
is also decisive.
The applicant in this case is not a person who is joined as a
defendant in his own application as stated in
s15
(5). The meaning of
the remainder of the subsection cannot be construed as imposing the
appropriate date in all cases of joinder
as being the date of the
court order of joinder. This extrapolation is incongruent with the
import and purpose of
s15
(6) of the
Prescription Act. I
do not agree
that one has to look to the meaning and further interpretation of
s15
(2) and
15
(4) to give meaning to
s15(6).
In my view one cannot take
separate words from other subsections in a statute to construct a
restrictive meaning so as to construe
s15
(6) to only mean service of
an amended summons and amended particulars of claim pursuant to the
joinder application.
[28]
Section 15(1)
the
Prescription Act provides
for service of a process
whereby creditor claims payment of a debt. The applicant served an
application of joinder whereby payment
of a debt was claimed. The
joinder application was framed and served in accordance with the
Uniform Rules of court and thus constitutes
a lawful process. The
essential elements of s 15(1) were present in the joinder application
served on 19 January 2011 thus within
the prescribed period which I
determined to be 10 June 2012.
[29]
I agree with the interpretation of what a debt is considered to be in
the context of the
Prescription Act as
set out in Cape Town
Municipality and Another v Allianz Insurance Co Ltd
1990 (1) SA 311
(C) at 331:
'One
must bear in mind that a "right" and a "debt"
are, after all, merely opposite poles of one and the same
obligation.
. . . Essentially, therefore, claiming payment of the debt is no
different in principle from enforcing the right to
payment of the
debt.' Meskin in Naidoo and another v Lane and another agreed with
this definition of a debt, I am also respectfully
in agreement with
this aspect. I do not however agree with Meskin J that the service of
the joinder application was an informative
process. This with respect
runs contrary to the purpose and context of
s15(1)
read with ss(6)
[27]
Once there is an acceptance that the only way the applicant could
commence
to enforce his debt is by way of joinder then that must constitute
the commencement of the legal process in the substantive
sense and
not only in the procedural or informative sense of the process.
[28]
The use of the word ‘inclusive’ and the word ‘any’
in
s15
(6) denotes a generous and wide description of documents which
may commence legal proceedings. It does not direct that a closed
numerus clausus of documents can be used. To test this wide
interpretation it is noteworthy that the words 'only the following
documents’ was not used in an attempt to fix the category of
documents. The section must therefore be given a purposive
interpretation.
[28]
Section 15(6)
the
Prescription Act refers
to a process such as a
third party notice. In substance as opposed to form, such a notice
does bring a third party not yet a party
to the litigation process
into the process as does a joinder application. When general words
are used in a statute it is a settled
principle they must receive a
general construction. It is also permissible to examine other words
of like import in the same statute
to ascertain whether limitations
are imposed. {Kellaway Principles of Interpretation 1995) The use of
the word ‘third party
notice’ in
s15(6)
of the
Prescription Act is a word of like import as joinder.
[29]
Nicholas J in Garrett v Lea Hobbs Milton & Co
1979 (4) SA 922
(W)_in dealing with the words ‘processes of the court’ in
s 36 (1) of the Supreme Court Act 59 of 1959 held that those
words
had to be interpreted in the wide sense connoting any court document
employed in the process of litigation.
I
am not suggesting that the word ‘any’ must be read into
s
15(6)
of the
Prescription Act for
such a broad interpretation. It
does not require the reading in of a word. The subsection is already
wide and clearly the purpose
and context is to be inclusive of a wide
range of documents.
[30]
In Standard Bank Investment Corporation Ltd V Competition Commission
And Others; Liberty Life Association Of Africa Ltd V Competition
Commission And Others
[2000] ZASCA 20
;
2000 (2) SA 797
(SCA)ln (Liberty Life
Association of Africa Ltd v Competition Commission and others)
[2000] ZASCA 20
;
2000
(2) SA 797
(SCA) Schutz JAat para 21 stated:
‘
However,
as I have endeavoured to show, our law is an enthusiastic supporter
of 'purposive construction’ in the sense stated
by Smalberger
JA in Public Carriers Association and Others v Toll Road
Concessionaries (Pty) Ltd and Others
1990 (1) SA 925
(A) at 943G - H
- “’Mindful of the fact that the primary aim of statutory
interpretation is to arrive at the intention
of the Legislature, the
purpose of a statutory provision can provide a reliable pointer to
such intention where there is ambiguity.’
[31]
Heher JA in Blouberg Meat Wholesalers CC v Anglo Dutch Meats Export
Ltd supra has already referred to the purpose of the
Prescription Act
as
being a deterrent to absence and inertia.
S15
(6) specifically
introduced words introducing and denoting an interpretation of
wideness and inclusiveness of a wide variety of
documents. The
inclusion of a joinder application as a document commencing legal
process is the appropriate interpretation.
In
the result I make the following order:
1.
An order of joinder is granted in terms of Prayers 1, 2, 3, 4 of the
notice of motion dated 18 January 2011.
2.
The respondents who have opposed this application shall bear the
costs jointly and severally the one paying the other to be ^absolved.
Victor
J
Counsel
for the Applicant: Adv A Camp
Attorney
for the Applicant: Dayason Attorneys
Counsel
for Respondents: Adv B Boot Attorney for the respondents: Lister &
Company