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[2013] ZAGPPHC 310
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Wonder Air (Pty) Ltd v Dodson International Parts and Another (5597/2011) [2013] ZAGPPHC 310 (24 October 2013)
NOT
REPORTABLE
IN
THE NORTH GAUTENG HIGH COURT,
PRETORIA
(REPUBLIC OF SOUTH AFRICA)
Case
number: 5597/2011
Date
24 Oktober 2013
In
the matter between :
WONDER
AIR (PTY)
LTD
....................................................
Plaintiff
and
DODSON
INTERNATIONAL PARTS
SOUTH
AFRICA (PTY) LTD
............................................
Defendant
JUDGMENT
JANSE
VAN NIEUWENHUIZEN AJ
[1]
The plaintiff, in its capacity as owner and/or possessor of two Pratt
& Whitney PT6A65AR Turbine Engines, instituted action
against the
defendant for the delivery of the engines alternatively for payment
of the amount of $ 1 600 000, 00 with interests
and costs.
[2]
The plaintiff alleges that the two engines were installed in a Dakota
DC3- 65IP belonging to the defendant and that the defendant
refuses
and/or neglects to return the engines to the plaintiff.
SEPARATION
OF ISSUES
[3]
At the inception of the trial I was informed by Mr van Rensburg,
counsel for the plaintiff, that the parties have agreed to
separate
the issue pertaining to the defendant's special plea of prescription
from the remainder of the issues in dispute.
[4]
Consequently I made an order in terms of rule 33(4) of the Uniform
rules of Court, ordering the separation agreed upon by the
parties
and postponing the remainder of the issues sine die.
SPECIAL
PLEA
[5]
The plaintiff, in its initial particulars of claim issued on 8
February 2011, made, inter alia, the following averments in support
of its claim for the return of the engines and/or payment of the
amount claimed:
3.
At
all relevant times. Plaintiff was the owner of two.............
turbine engines..."
4.
On
or about July 2008:
3.1
and after Plaintiff ferried a Dakota the property of or belonging to
Defendant from Lanseria Airportto Wonderboom Airport at
the
instanceand instructions of Defendant;
and
whilst
3.2
the engines belonging to Plaintiff were still installed in
Defendant's Dakota,
Defendant
there and then, acting through its Director, one Robert Lee Dodson
(Snr), unlawfully, whilst knowing that he is not entitled
to do so
and without the knowledge and/or consent of Plaintiff removed,
alternatively gave instructions for the said Dakota aircraft
to be
removed from Wonderboom Airport to Otawa in Kansas. in the United
States of America."
[6]
I pause to mention that the plaintiff also has a second claim for
damages, which claim is, however, not relevant to the issue
to be
decided herein.
[7]
On 13 March 2013, the plaintiff affected an amendment to its initial
particulars of claim, in terms of which amendment the following
averments were introduced;
3.
At
all relevant times, Plaintiff was the owner of two.................
Turbine Engines,
alternatively
and if it is found that the Plaintiff is not the owner of the engines
the Plaintiff was the possessor of the engines
and possessed the
engines by virtue of one or more of the following facts:..
On
or about July 2008:
4.1
and after Plaintiff ferried a Dakota the property of or belonging to
Defendant from Lanseria Airportto Wonderboom Airport at
the instance
and instructions of Defendant:
and
whilst
4.2
the engines
4.2.1
Belonging to Plaintiff; alternatively
4.2.2 The possession of which
Plaintiff was entitled to,
were
still installed in Defendant's Dakota"
Defendant
there and then, acting through its Director one Robert Lee Dodson
(Snr), unlawfully, whilst knowing that he is not entitled
to do so
and without the knowledge and/or consent of Plaintiff removed,
alternatively gave instructions for the said Dakota aircraft
to be
removed from Wonderboom Airport to Otawa in Kansas, in the United
States of America."
(own
emphasis)
[8]
The defendant filed an amended plea and counterclaim and raised a
special plea of prescription to the amended particulars and
more
particularly to the allegations emphasised supra.
[9]
The special is premised on the basis that the plaintiff introduced a
new cause of action and the relevant portions of the special
plea
reads as follows:
2.
The
Plaintiff’s alleged claim (in the alternative) against the
Defendant arose by the latest during July 2008.
3.
The
Plaintiff effected the Amendment to include the alternative cause of
action, namely to rely on a right of possession to the
aircraft
engines, during February 2013.
4.
In
terms of
Section 11(d)
of the
Prescription Act, 68 of 1969
, the
applicable period of prescription is a period of three years.
5.
Because
a period of more than three years has lapsed since the alleged
(alternative) claim of the Plaintiff arose, to the date of
Plaintiff
effecting the Amendment, the Plaintiffs claim has become prescribed
by virtue of the provisions of
Section 10(1)
of the Act.
SUBMISSIONS:
[10]
Mr Pelser SC, counsel for the defendant, first of all submitted that
the plaintiffs initial claim was based on a rei vindication
and an
actio ad exhibendum.
[11]
Mr Pelser SC, further submitted that the amendment effectively
removed the plaintiffs reliance on ownership and on an analysis
of
the new allegations the plaintiff is now relying on an enrichment
claim without specifying such action.
[11]
In the premises, the amended claim is a new debt and the debt has
prescribed.
[12]
Mr van Rensburg did not agree. He submitted, that the plaintiffs
cause of action was and is still based on the condictio furtiva.
Mr
chance van Rensburg, furthermore, submitted that only the capacity in
which the plaintiff claims relief has been amended.
[13]
In response to the aforesaid submissions, Mr Pelser SC, in additional
heads of argument made the following submission after
referring to
various case law and text books:
"What
is stated above reinforces the argument of the Defendant that the
condiction furtiva is not available to the Plaintiff
once he has
established that he cannot prove ownership. He cannot change tack so
as to rely upon having been in possession. It
is a new debt that the
Plaintiff is trying to recover."
PLAINTIFF'S
CAUSE OF ACTION:
[14]
It is clear from the plaintiffs initial particulars of claim that the
plaintiff relied on the condictio furtiva. The necessary
allegations
in this regard are contained in the particulars of claim.
[15]
The same allegations sustaining a cause of action based on the
condictio furtiva, are alleged in the amended particulars of
claim.
[17]
The only question to be determined is whether the fact that the
plaintiff initially claimed as owner and in terms of the amended
particulars of claim as possessor, constitutes a new debt.
PRESCRIPTION
ACT
- DEBT
[18]
Section 10(1) of the Prescription Act, 68 of 1969 ("the Act"),
provides as follows:
"Subject
to the provisions of this Chapter and of Chapter IV, a debt shall be
extinguished by prescription after the lapse
of the period which in
terms of the relevant law applies in respect of the prescription of
such debt" (own emphasis)
[19]
A "debt” as it appears in section 10(1) of the Act, has
been succinctly defined by Trollip JA in Evins v Shield
Insurance Co
Ltd
1980 (2) SA 814
AD at 825 F-H:
7
prefer to use the term “right of action” to " cause
of action” because, I think, the former is strictly
and
technically more legally correct in the present context (cf Mazibuko
v Singer
1979 (3) SA 258
(W) at 265D-G).
"Cause
of action” is ordinarily used to describe the factual basis,
the set of material facts, that begets the plaintiff’s
legal
right of action and, complementarity, the dependants “debt”,
the word used in the
Prescription Act."
[20
]
"More recently, Jones AJA defined "debt" as follows in
CGU Insurance Ltd v Rumdel Construction (Pty) Ltd
2004 (2) SA 622
SCA
at 628C:
"The
debt is not the material set of facts. It is that which is begotten
by the set of material facts."
[21]
The rationale behind the provisions of the Prescription Act has (
with reference to its predecessor) been explained by Holmes
JA in
Santam Insurance Company Ltd v Vilakazi
1967 (1) SA 246
AD at 253H as
follows:
“
In
my opinion it is clear that the service referred to in sec. 6 (1) (b)
must be a service whereby action is instituted as a step
in the
enforcement of the claim or right. The underlying reason why such
service interrupts prescription is that the creditor has
thereby
formally involved his debtor in court proceedings for the enforcement
of his claim”
[22]
The debt the plaintiff intended to enforce in its unamended
particulars of claim was the return of the engines alternatively
payment of an amount equal to the value of the engines. The plaintiff
claims the same debt in its amended particulars of claim,
albeit that
the plaintiff has added another capacity in which it claims the debt.
In other words, what the plaintiff "begets"
prior and
subsequent to the amendment remains the same.
[23]
I am, furthermore, satisfied that the defendant knew at all relevant
times, what the claim, the plaintiff endeavors to enforce,
is.
CONCLUSION
[24]
In the premises, the amendment effected by the plaintiff on 13 March
2013 did not introduce a new 'debt" as envisaged
by the Act and
the defendant's special plea of prescription falls to be dismissed.
ORDER:
I
make the following order:
The
defendant's special plea of prescription is dismissed with costs.
Kl
Janse van Nieuwenhuizen
Acting
Judge of the North Gauteng High Court, South Africa
For
the applicant: Van Zyl Le Roux Inc
Counsel
for applicant: Adv Van Rensburg
For
the Defendant: Coetzer & Partners
Counsel
for Defendant: Adv Q Pelser SC