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[2012] ZAKZDHC 85
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Petherbridge and Another v Westcott (11310/2006) [2012] ZAKZDHC 85 (19 December 2012)
IN THE KWAZULU-NATAL HIGH COURT, DURBAN
REPUBLIC OF SOUTH AFRICA
Case Number : 11310/2006
In the matter between:-
BENJAMIN PETRI PETHERBRIDGE
...........................................
First
Plaintiff
JANETTE MARY PETHERBRIDGE
..........................................
Second
Plaintiff
and
BRIAN ERROL WESTCOTT
.............................................................
Defendant
___________________________________________________________________________
JUDGMENT
___________________________________________________________________________
VAN ZÿL, J.
:-
The plaintiffs instituted action against the defendant by way of
provisional sentence proceedings claiming payment in the sum
of
R173 000-00, together with interest thereon at the rate of
17,5% per annum with effect from the 1
st
June 1999 to
date of payment and costs.
The defendant gave notice of intention to oppose and delivered his
opposing affidavit denying liability. The first plaintiff
thereafter
delivered his answering affidavit, together with an affidavit by one
David Truebody. The latter affidavit is relevant
only with regard to
the date of signature of the Acknowledgment of Debt, being the
instrument of debt upon which the provisional
sentence proceedings
are based.
The plaintiffs tersely alleged in paragraph 2 of their provisional
sentence summons that the defendant was indebted to the plaintiffs
by virtue of an acknowledgment of debt signed on 4 August 1999 and a
copy of which was annexed as annexure “A”. If
reference
is had to this annexure then it appears that the instrument of debt
was in fact signed by both the defendant and his
wife Charlotte
Westcott and that the couple were therein stated, at the time of
signature, to have been married to each other
in community of
property.
Plaintiffs further alleged in paragraph 3 that “
the
co-signatory CHARLOTTE WESTCOTT to annexure ‘A’ has
acknowledged indebtedness to the Plaintiffs as per annexure
‘B’
hereto.
” With reference to this annexure it appears to be
a letter, dated 18 August 2006 and addressed to the plaintiffs, her
parents,
in response to a letter of demand from the plaintiffs’
attorneys of record. It reads as follows –
“
Dear
Mom & Dad,
LOAN REPAYMENT
I refer to the letter of
demand received from Johnson & Partners dated 7 August 2006.
I confirm that Brian and I
remain indebted to you for the full amount of the monies loaned in
terms of the acknowledgment of debt
signed in August 1999.
I understand that a purchaser
has been found for the property and I will endeavour to get an
appropriate undertaking that you be
repaid from the proceeds of the
sale.
Yours sincerely
CHARLOTTE WESTCOTT
”
The allegations contained in the summons conclude in paragraph 4
thereof that “
..no amounts have been paid by the Defendant
or CHARLOTTE WESTCOTT in terms of annexure ‘A’.
”.
The defendant in his opposing affidavit denied liability on various
grounds. Firstly he disputed that the acknowledgment of debt
was in
fact signed during 1999 and asserted that according to his
recollection the document was signed “
approximately 1998
”.
Impliedly, however, he admits his signature thereto.
The defendant then raised an alleged oral agreement entered into
between the plaintiffs, his wife and himself on an unspecified
date
subsequent to the signature of the acknowledgment. He claimed to be
unable to recall the exact date of such oral agreement.
However, its
terms were to the effect that the plaintiffs would take up residence
with the defendant and his wife, who was their
daughter, but in a
separate flat on their property and in return the defendant and his
wife would be released from their obligations
to effect repayment to
the plaintiffs arising from the acknowledgement of debt (annexure
‘A’).
The defendant claimed that this agreement was given effect to and
that the plaintiffs moved into the flat and have remained there
for
a period of approximately nine years.
In support of his claim that the debt arising from the
acknowledgment of debt had been extinguished and was no longer in
existence,
the defendant attached (as annexure X.1) a copy of the
divorce settlement agreement concluded between himself and his then
wife,
the said Charlotte Westcott, on 22 May 2006 and pointed out
that it contains no reference to any continued indebtedness by the
couple to the plaintiffs.
Indeed, the defendant stressed that the agreement provided,
inter
alia
, for Mrs Westcott after the divorce to purchase the
defendant's half share in the property or, failing that, for the
property
to be sold and the proceeds divided between Mr and Mrs
Westcott. It is common cause that the marriage between the defendant
and
the plaintiffs' daughter was dissolved by a decree of divorce on
22 August 2006 and that Mrs Wescott subsequently passed away on
27
May 2007.
The plaintiffs deny the existence of the alleged agreement releasing
the defendant and their daughter from their obligations
to the
plaintiffs arising from the acknowledgment of debt. Contrary to the
claims made by the defendant, they aver that there
was never any
agreement in terms of which the plaintiffs would reside in the
"
granny flat
" free of charge. In particular they
assert that there was never any absolution from the acknowledgment
of debt, as claimed
by the defendant. They also deny that the
defendant paid for their water and lights, as he claimed to have
done, whilst they
resided in the flat.
In support of their denials the plaintiffs referred to annexed
copies of receipts evidencing, so the plaintiffs said, the fact
that
they made various payments to their daughter from time to time in
respect of electricity, water, washing (presumably a reference
to
laundry services) and (property) rates and that they also rendered
assistance by collecting children and paying for school
and
ancillary items over the years, without being repaid. They pointed
out that, in any event "
.. for at least the last three years
of the marriage
" the defendant no longer lived with their
daughter and no longer occupied the particular residence, but was
residing elsewhere
whilst their daughter assumed responsibility for
the household expenses, including the bond repayments.
The plaintiffs claimed that the reason they never paid any rental
for the granny flat which they occupied was because the loan,
as
evidenced by the acknowledgment of debt, had not been repaid.
However, if the loan had been repaid, then they would, so it
was
suggested, have become obliged to pay rental in an unspecified
amount. Elaborating in this regard the plaintiffs said that
the flat
they occupied was in fact a converted games room and that the
defendant had undertaken to add a bathroom and toilet
facility
thereto, but never did. As a result they were obliged to use the
bathroom and toilet facilities in the main house and
added that "
It
is because the Defendant never built the bathroom and never repaid
the loan that no rental was due to him.
".
Counsel for the plaintiffs submitted that the versions advanced in
opposition by the defendant could not avail him because he
was
required to show, unlike in the case of summary judgment, that he
was likely on a balance of probabilities to succeed in
the principal
case.
However, the defendant in addition raised the defence of
prescription. In this regard the defendant pointed out that the
acknowledgment
of debt provided that repayments would commence
immediately at not less than R1 000-00 per month and that the
plaintiffs alleged
no repayments whatsoever were ever made.
Accordingly the running of prescription would have commenced and the
obligations arising
out of the acknowledgment of debt would have
prescribed.
Clause 5 of the acknowledgment of debt reads as follows -
"
(We) agree that in the
event of any instalment not being paid on due date then the full
balance then outstanding shall immediately
become due and payable
without notice to us.
"
There is a conflict between clause 2 of the acknowledgment of debt
which provides that the first instalment would become payable
on
"
the first day of 1 June 1998 and monthly thereafter on the
first day of each and every succeeding month until the full capital
amount plus interest and costs are paid in full.
" and the
apparent date of signature of the acknowledgment of debt on 4 August
1999.
In this regard counsel for the defendant suggested that the document
had been incorrectly dated and that it was in fact signed
prior to 1
June 1998. However, even if one accepts that the acknowledgment of
debt was signed on 4 August 1999, then it simply
means that the
first instalment would at the latest have become due and payable on
1 September 1999.
Counsel for the defendant submitted that for prescription to
commence running, there had to be a debt immediately due and payable
to the creditor and that the debt in respect of the acknowledgment
of debt would have become due and prescription would have
commenced
running as soon as the first instalment had not been paid. In this
regard counsel drew attention to the remarks of
Van Heerden JA in
Deloitte Haskins & Sells Consultants (Pty) Ltd vs Bowthorpe
Hellerman Deutsch (Pty) Ltd
[1990] ZASCA 136
;
1991 (1) SA 525
(AD) at page 532 H-I.
In developing his argument counsel submitted that the acknowledgment
of debt relied upon by plaintiffs fell to be considered
under
s11(d)
of the
Prescription Act 68 of 1969
and prescribed three years after
the debt become due. Since the plaintiffs' summons was only issued
on 13 November 2006, the
claim had long since prescribed. Upon this
approach and assuming, as indicated above, that the debt became due
when the first
instalment remained unpaid on 1 September 1999, then
the claim would have prescribed on or about 31 August 2002.
Counsel for the plaintiffs countered that prescription was
interrupted and the debt revived by reason of the admission made by
the defendant's wife by virtue of the letter of 18 August 2006 and
referred to above. Counsel submitted that by reason of the
fact that
Mr and Mrs Westcott were still legally married in community of
property at the time the letter was written (the divorce
only being
finalised on 22 August 2006), the defendant was bound by her
admission and accordingly the debt had not prescribed
when the
action was instituted.
The defendant, in this regard, alleged that Mrs Westcott at that
time had no authority to bind him in his personal capacity and
questioned her ability to do so.
The plaintiffs' affidavit does not indicate when the letter of 18
August 2006 was received by them. In other words, whether it
was
received and its contents communicated to them prior to or only
after the divorce order of 22 August 2006 dissolved the marriage.
Arguably, if it was received after the divorce was finalised, then
Mrs Westcott was no longer married to the defendant and could
in any
event no longer lawfully bind their (former) community estate.
However, there appears to be a more compelling difficulty facing the
plaintiffs in this regard. In the letter of 18 August 2006
Mrs
Westcott purports to admit her and the defendant's continued
indebtedness to the plaintiffs. In Benson and Another vs Walters
and
Others
1984 (1) SA 73
(AD) at page 86 H Van Heerden JA remarked that
"
It should be emphasised that
s12(1)
of the
Prescription Act
requires
an acknowledgment of liability ('aanspreeklikheid') and not
merely an acknowledgment of indebtedness.
" The letter by
Mrs Westcott appears to fall into the latter category.
Also, at the time the letter was written,
prima facie
the
debt had already prescribed and was no longer in existence.
Prescription could therefore not have been interrupted by the
letter, even if it were shown to have been an acknowledgment of
liability and assuming it was delivered and its contents
communicated
to the plaintiffs prior to the divorce on 22 August
2006.
In ABSA vs De Villiers
2001 (1) SA 481
(SCA) at page 487 A-C, Howie
JA stated that -
"
Waar dit duidelik is, sonder meer,
dat die verjaringstydperk verstryk het, het die verweerder 'n volkome
verweer: die eis is finaal
uitgewis. Indien op stuiting van verjaring
of uitstel van die voltooiing van verjaring staatgemaak wil word, is
die posisie nie
net dat die eiser sal moet begin nie. Indien dit op
die getuienis van 'n besondere saak onseker is of stuiting, of die
gebeure waarna
in art 13(1) verwys word, plaasgevind het al dan
nie, sal die eis in daardie situasie noodwendig moet faal. Die
repliek wat deur
so 'n eiser geopper word is dus 'n aparte geskilpunt
ten opsigte waarvan daar 'n afsonderlike bewyslas (in die sin van die
algehele
bewyslas) bestaan: Pillay v Krishna and Another
1946 AD 946
te 953. In die onderhawige saak het appellant dus die bewyslas
gedra om uitstel van voltooiing van verjaring ingevolge art
13(1)(g)
te bewys.
"
In the present matter I am of the view that the plaintiffs have not
discharged the onus resting upon them to prove that prescription
was
interrupted and that completion of the prescription was delayed. Put
differently, I find that the defendant is likely on
a balance of
probabilities to succeed in the principal case. However, where as
here a defence of prescription is upheld, then
the proper order is
one where provisional sentence is refused, with costs (Salot v
Naidoo
1981 (3) SA 959
(D), Howard, J. at page 962A).
In the circumstances the order I therefore make is, as follows:
The plaintiffs' claim for provisional sentence is refused, with
costs.
_____________________
VAN ZYL , J.
APPEARANCES:
For Plaintiffs : Adv G. M. Harrison
Instructed by Messrs Johnson & Partners
of Durban (Ref.L Lunde/ccb/09P311001)
For Defendant : Adv P. Haasbroek
Instructed by Messrs Pravda Terblanche & Knowles of Durban (Ref.
KS/an/01W540001).
Date argued : 21 August 2008.
Delivered : 19 December
2012
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