South African Tourism v Pasis (Pty) Ltd (SCA102/06) [2006] ZASCA 122; [2006] SCA 150(RSA) (29 November 2006)

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[2006] ZASCA 122
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South African Tourism v Pasis (Pty) Ltd (SCA102/06) [2006] ZASCA 122; [2006] SCA 150(RSA) (29 November 2006)

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THE SUPREME COURT
OF APPEAL
OF SOUTH AFRICA
CASE NO: 102/06
Not Reportable
In the
matter between:
SOUTH
AFRICAN TOURISM Appellant
and
PASIS
(PTY) LTD Respondent
Coram
: STREICHER, BRAND JJA, THERON AJA
Heard:
10 NOVEMBER 2006
Delivered:
29 NOVEMBER 2006
Summary:
Prescription – Special Plea- Plaintiff’s claim not in respect of
an obligation which had to be performed more than three
years before
service of the summons – Special plea dismissed
Neutral
citation: This case may be cited as SA Tourism v Pasis [2006] SCA
150 RSA
JUDGMENT
THERON
AJA
[1]
The appellant is a state funded
organisation which promotes tourism in and to South Africa. The
respondent is the developer and owner
of a comprehensive tourism and
business information system available in both the printed and
electronic media. On 31 January 2000
the parties concluded an
agreement which was to endure for one year until 30 January 2001. In
terms of the agreement the respondent
undertook to make available to
the appellant its information data base for use in promoting tourism
to South Africa. Furthermore,
in terms of the agreement, the
appellant was obliged to have marketed and promoted the respondent’s
product range, which included
a website and a printed publication
called Xplore.
[2] On 27 January 2004 the respondent caused summons to
be issued against the appellant out of the Pretoria High Court. In it
the
respondent alleges that the appellant breached the agreement by
failing to market and promote its product range. The respondent
further
alleges that in consequence of such breach it sustained
damages in the sum of R23 222 321,31.
[3]
The summons was met with a
special plea of prescription in which the appellant alleged that ‘the
plaintiff’s claim fell due on
or before 30 November 2000, by which
date the plaintiff had knowledge, alternatively could have had
knowledge had it exercised reasonable
care, of the facts giving rise
to the claim’ and that ‘the summons was served upon the defendant
on 27 January 2004, more than
three years after the date on which the
claim arose’.
[4]
By agreement between the parties
the special plea was determined without any recourse to evidence.
After having heard argument the
court
below
held that the appellant had not committed a breach of its contractual
obligations by 30 November 2000 as ‘it was still open
for the
[appellant] to perform its obligations’ before the expiry of the
contract period. That conclusion is under attack before
us, with the
leave of the court below.
[5]
The appellant’s allegation that
the respondent’s claim fell due on or before 30 November 2000 is
based on the following averments:
‘
19 Hence,
by no later than the end of November 2000:
the defendant had failed to cooperate with the
plaintiff in the establishment or development of the website;
the defendant had failed to cooperate with the
plaintiff in the publication of Xplore;
the defendant had failed to procure the placement of
advertisements through the influence of its tourism offices’
the defendant had taken no copies of Xplore to the
London Travel Show;
the defendant had failed to either promote or market
Xplore at the London Travel Show;
the defendant had taken no copies of Xplore for
distribution in the South African market;
the defendant had neither marketed nor promoted the
plaintiff’s website;
the defendant had withheld its cooperation, thereby
preventing the plaintiff from either fully or properly performing
in terms
of the agreement;
the defendant had failed to furnish its official
endorsement to the plaintiff’s product range.’
[6]
The appellant therefore alleged
that it is the respondent’s case that the appellant had the
specific obligations mentioned in paragraph
19 of the special plea
and that those specific obligations were breached before the end of
November 2000. However, that is not the
case pleaded by the
respondent. The respondent’s case is that appellant was obliged to
market and promote the respondent’s product
range and no specific
obligations in regard to such promotion and marketing are alleged.
Whether it can be determined to what extent
the appellant had to so
market and promote the respondent’s product range is not an issue
before us and will have to be determined
by another court. What is
clear is that whatever had to be done, had to be done before 31
January 2001. The time during which the
appellant had to market and
promote in terms of the agreement therefore only expired at the end
of January 2001. Not having alleged
that the obligation to promote
and advertise entailed an obligation which had to be performed before
27 January 2001 it cannot, on
the pleadings as they stand, be found
that the appellant breached its obligation more than three years
before the summons was served
on the respondent.
[7] In
the circumstances, the conclusion of the trial court cannot be
faulted and the appeal must fail. The appeal is refused, with
costs.
­­­­­­­­­­­­­­­______________
LV THERON
Acting
Judge of Appeal
CONCUR:
STREICHER
JA
BRAND
JA