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[2013] ZAFSHC 167
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Hsin-Huie Plastic CC v Odendaal (549/2009) [2013] ZAFSHC 167 (26 September 2013)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No: 549/2009
In the matter between:-
HSIN-HUIE
PLASTIC CC
...............................................................
.Plaintiff
and
ADRIAAN HENDRIK
ODENDAAL
..............................................
Defendant
_________________________________________________________
JUDGMENT BY:
THAMAGE, AJ
_________________________________________________________
HEARD ON:
3, 4, 6 AND 12 SEPTEMBER 2013
_________________________________________________________
DELIVERED ON:
26 SEPTEMBER 2013
_________________________________________________________
[1] This matter involves
a special plea of prescription. Plaintiff is Hsin-Huie Plastic CC, a
close corporation duly registered
as such and with registered office
in Bloemfontein. Defendant is Adriaan Hendrik Odendaal a male
attorney residing at the farm
Braklaagte in the district of Vrede.
Plaintiff’s claim is for breach of the terms of contract
entered into between himself
and defendant alternatively that
defendant was negligent in instituting an action on behalf of Mr
Chung instead of citing plaintiff
as second plaintiff under case
number 3016/2006.
[2] Plaintiff prayers as
per summons are as follows:
“
(a)
Payment of the amount of R864 000,00;
(b) Payment of interest
on the aforesaid amount
a temporae morae
at a rate of 15,5%;
(c) Costs of suit;
(d) Further and for
alternative relief.”
[3] At the beginning of
the trial, the following was recorded as agreed upon by the parties:
3.1. That R500 000,00
is abandoned by the plaintiff and plaintiff will only proceed with a
claim of R364 000,00;
3.2 That the merits are
separated from the quantum;
3.3. That defendant’s
special plea of prescription will be adjudicated first, the
presentation of same will be by way of oral
evidence.
[4] As per 3.3 above,
defendant led evidence of Mr Odendaal (defendant himself) and
plaintiff led evidence of Mr Chung (member of
the plaintiff) and Mr
Henning the current attorney for the plaintiff.
[5] The special plea is
as follows:
“
1.5.
Eiser was, gevolglik, reeds op 7 Julie 2006 bewus van die bestaan van
die skuld, soos bedoel in Artikel 12(2) van Wet 68 van
1969,
alternatiewelik
kon eiser deur die beoefening van redelike sorg reeds op 7 Julie 2006
van die bestaan van die skuld bewus geword het en moet die
skuld geag
word op 7 Julie 2006 opeisbaar te wees, soos bedoel in Artikel 12(3)
van Wet 68 van 1969;
1.6. Die onderhawige
aksie teen verweerder is deur die Griffier uitgereik op 2 Desember
2009 en daarna aan verweerder beteken;
1.7. Meer as drie jaar
het verloop vanaf 7 Julie 2006 totdat eiser op 2 Desember 2009 aksie
teen verweerder ingestel het;
1.8. Eiser se vordering
teen verweerder het, weens die bepalings van Wet 68 van 1969 verjaar
alvorens aksie ingestel is.”
[6] After both parties
had led evidence, I requested both counsel to submit written heads of
argument which they did. I am indebted
to their submissions.
[7] Facts are basically
as follows:
7.1. Mnr Chung is a
member of the plaintiff. Fire occurred at his building on the 19
th
July 2003, which building was owned by him and the equipment and
stock was owned by the plaintiff. He then instructed Mr Snyman
to
institute an action against his neighbour (Mr De Bruin), whose
negligence caused the fire. Mr Snyman’s instructions were
terminated and the current defendant was approached to carry on the
instruction on or about 16 February 2005. On 20 April 2005,
defendant
addressed the letter to Steinbach & Oelofse and reference was
made to Hsin Huie CC of which Mr Chung is a member.
7.2. Defendant then
briefed Mr Grewar to draw particulars of claim and on that draft
(which was in Afrikaans), Chung was the plaintiff.
At about the 3
rd
July 2006, Mr Chung was in possession of the draft particulars of
claim whereupon he raised his concern by letter of the correct
citation of the then defendant as well as prescription of the fire
claim. Mr Chung does not know English nor Afrikaans and at all
consultations, he used Ms Win Lee as his interpreter. A certain
Joseph was the one who came with these words prescription and
citation and this was communicated to Ms Win Lee who is the author of
the letter to the defendant. Amongst other documents that
were in
possession of the defendant was an invoice of equipment and stock and
that invoice was addressed to “Trackster (Pty)
Ltd trading as
CC Hsin-Huie Plastic (Pty) Ltd CC.” Around the 18 October 2006,
defendant’s mandate was terminated.
7.3. Mr Henning was then
instructed to proceed with the matter. He obtained the file from
defendant on the 25
th
January 2007. He then consulted with
Mr Chung around February 2007. Mr Henning, on perusal of the file,
realised that reference
has been made to the close corporation but
summons were issued in Mr Chung’s personal capacity. He could
thus not institute
another action or join the plaintiff as second
plaintiff because the claim had prescribed on the 11 December 2006.
Mr Henning then
sent Mr Chung a letter in which he alluded the fact
that plaintiff’s claim against Mr De Bruyn had prescribed hence
plaintiff’s
recourse was to institute an action against
defendant (Mr Odendaal) hence the current matter.
[8] The issue to be
decided is whether plaintiff’s claim has prescribed.
Defendant’s counsel submitted that plaintiff’s
claim had
prescribed hence this special plea; on the contrary, plaintiff’s
counsel submitted that it has not. According to
the defendant,
prescription started to run from the 7
th
July 2006 whilst
plaintiff is of the view that prescription started to run as from 11
December 2007 alternatively February 2007.
[9]
Section 11(d)
of the
Prescription Act 68 of 1969
provides as follows:
“
The
periods of prescription of debts shall be the following:-
Save where an Act of
Parliament provides otherwise, three years in respect of any other
debt.”
Section 12
provides as
follows:-
Subject to the
provisions of subsections (2)(3) and (4), prescription shall
commence to run as soon as the
debt is due
…
(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.”
(my emphasis)
[10] Prescription begins
to run not necessarily when a debt arises but only when it becomes
due. See Joubert,
LAWSA
, First Re-issue, Vol 21, p55.
Joubert
supra
at p56 para [142] further states as follows:-
“
So,
because negligence does not become actionable without proof of
damages, it is only after damages has been suffered that the
cause of
action becomes complete and time begins to run.”
[11] It is prudent to
consider when plaintiff’s debt became due alternatively when
the plaintiff’s debt is deemed to
have been due, in other
words, when was the cause of action complete. Both counsel referred
me to
Evins v Shield Insurance Co Ltd
1980 (2) SA 814
and pages 838 to 839.
[12] Counsel for
defendant submitted that the debt became due the time Mr Chung read
the daft particulars of claim wherein the plaintiff’s
name did
not appear. I find it difficult to agree with this submission given
the fact that the document presented to Mr Chung was
a draft, written
in Afrikaans, it was not summons as they were not yet issued. In
terms of
Evins
case
supra,
no cause of action
will arise until all the
facta probanda
had occurred.
[13] Counsel for
defendant further submitted that plaintiff’s cause of action
became complete the moment when the claim against
Mr De Bruyn became
prescribed. This submission is misplaced in that counsel failed to
distinguish facts relevant to the facts in
issue vis-à-vis
facts in issue (
facta probanda)
. The fact that the claim
against Mr de Bruyn had prescribed is a fact relevant to the facts in
issue but not the
facta probanda
. The absence of the
plaintiff’s name in a draft particulars of claim does not
constitute a debt as envisaged by
section 12
of the
Prescription Act.
[14
]
Section 12(3)
of the
Prescription Act is
of the effect that the debt shall not be deemed
to be due until the creditor has knowledge of the identity of the
debtor as well
as the facts from which the debt arise. Mr Chung got
that knowledge when he received the letter from Mr Henning indicating
that
plaintiff had not been included in the action and that the
action against Mr De Bruyn had prescribed. I must at this point
indicate
that Mr Chung is not legally qualified and does not know
English or Afrikaans. See
Ditedu v Tayob
2006 (2) SA
176
WLD at 181:
“
Clearly
the plaintiff was unaware, after she received the amount of the
settlement that her attorney had acted negligently. She
was first
apprised of this during
2003
when she consulted with her present attorney ……”
(my
empahsis)
Similarly, plaintiff
became aware of the claim against defendant after consultation and/or
letter from his attorney, Mr Henning.
[15] I also have to
consider whether the plaintiff by exercise of reasonable care, ought
to have acquired knowledge of the debt;
See
Gericke v Sack
1978 (1) SA 821
A. On the other hand, the party pleading prescription
should prove on a balance of probabilities that plaintiff had
knowledge of
the fact as envisaged by the
Prescription Act. The
exercise of reasonable care is measured as against a reasonable man
under the circumstances. Mr Chung is a businessman but not
a legally
qualified person. The letter he wrote to defendant was written by Ms
Win Lee as well as the terms of prescription and
citations were from
his friend Joseph. These contentions cannot be held against the
plaintiff as it is common cause that plaintiff
even during
consultation with defendant as well as his current attorney, was
using the services of the interpreter. I find no basis
that plaintiff
by the exercise of reasonable care ought to have known of the debt.
[16] I have been
requested by counsel for the plaintiff to order costs against the
defendant, similarly, counsel for defendant requested
me to order
costs against the plaintiff even if the special plea is dismissed due
to the fact that plaintiff on his further particulars
induced the
defendant to raise a special plea by stating that plaintiff became
aware that he was not cited as plaintiff under case
number 3016/2006
during July 2006. I am of the view that future submissions as to
costs order are needed hence the costs order
on this special plea is
reserved.
ORDER
[17] The following order
is made:
Special plea is
dismissed.
Costs are reserved.
Matter is postponed
sine die.
_________________
S. J. THAMAGE, AJ
On behalf of plaintiff:
Adv.J. J.F. Hefer
Instructed by:
McIntyre & Van der
Post
BLOEMFONTEIN
On behalf of defendant:
Adv. J. G. Gilliland
Instructed by:
Bezuidenhouts Inc.
BLOEMFONTEIN
/eb