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[2010] ZAFSHC 36
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Matsepe NO and Others v Strydom and Others (4621/2006) [2010] ZAFSHC 36 (25 March 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case
No.: 4621/2006
In the case between:
TSUI
VINCENT MATSEPE (N.O)
1
st
Plaintiff
JEANINE
ELIZABETH SAFFY (N.O)
2
nd
Plaintiff
CORNELIUS
JOHANNES VENTER
(N.O)
3
rd
Plaintiff
and
ANNA
KATRINA JACOMINA STRYDOM
1
st
Defendant
GIDEON
JOUBERT DU PLESSIS
2
nd
Defendant
MARIUS
STRYDOM
3
rd
Defendant
_____________________________________________________
JUDGEMENT:
MOCUMIE, J
____________________________________
_________________
DELIVERED
ON:
25
MARCH
2010
_____________________________________
________________
MOCUMIE J
INTRODUCTION
The three plaintiffs,
two attorneys and a clerk in an attorneys’ firm, were
appointed curators by the Master of the Free
State High Court on 09
November 2005 in the insolvent estate of Mr Anton Herbst Taute
(“Taute”)
.
Taute used to be the sole trustee of Greef Boerdery Trust
(“Greef
Trust”)
IT
2076/98, which was finally sequestrated on 08 September 2005.
The three defendants are
sued in their capacity as trustees of Riverside Beleggings Trust
(“Riverside
Trust”)
IT
263/73 for an amount of R164 160, 00 plus interest, in essence for
goods sold and delivered.
The plaintiffs claim
that in Bloemfontein, during November 2001, Greef Trust represented
by JC Greef, and Riverdale Trust, represented
by C M Strydom
(apparently third defendant), entered into an oral agreement later,
confirmed in writing. The salient alternatively
the tacit, further
alternatively the implied terms whereof were the following:
3.1
Greef Trust sold to Riverside 48 head of cattle for an amount of R164
160, 00 inclusive of Value Added Tax
(VAT);
3.2 It
was the responsibility of Greef Trust to transport the livestock from
Bloemfontein to Aliwal North on 06
November 2001, whereupon the
defendants will pay Greef Trust the purchase price within a
reasonable time.
The defendants have
entered a special plea of prescription, but have pleaded in the
alternative on the merits denying any indebtedness
to the
plaintiff. According to them:
4.1 An
agreement was entered between them and JC Greef in terms of which JC
Greef would purchase certain shares
(the number and value are not
given) from the defendants. The transaction, according to the
plea, is
“gedateer
03 August 2001 en in terme waarvan betaling in kontant moes
plaasvind, nie later as 90 dae na ondertekening van
die gesegde
ooreenkoms.”
4.2 On
or about 06 November 2001 at Bloemfontein, JC Greef delivered forty
eight head of cattle to the defendants
as part-payment of the
purchase price of the said shares. The value of the stock was
by agreement fixed at R164 160, 00 (inclusive
of VAT).
Further alternatively it
is the defendants’ plea that in the event that the Court find
that a sale transaction indeed exists
between Greef Trust and
themselves, then they plead that:
5.1 The
forty head of cattle were in fact sold to them for the stated price
and that the defendants accepted delivery
thereof;
5.2
However, the defendants are not indebted to Greef Trust by virtue of
the fact that the Removal Permit/Sale
Certificate (“vervoerpermit/
verkoopsbewys”) annexed to “Defendants’ Plea”
marked Annexure “A”
serves as a receipt and proof of
payment for the livestock as well as authority for the loading and
removal of the cattle.
In the light of the
defendants pleas it is therefore advisable that Annexure “A”
be reflected as it stands:
“
A
”
VERVOERPERMIT/AANKOOPBEWYS
UITGEREIK AAN
RIVERSIDE
BELEGGINGS TRUST
(KOPER)
Hiermee verklaar ek
GREEF
BOERDERY TRUST
die ondergetekende, woonagtig te
CORNELIA
distrik
BLOEMFONTEIN
,
die verkoop van die ondergemelde vee aan die kopers daarvan.
BESKRYWING
GETAL
PRYS
1.
Beeste
48
R 144 000-00
2.
Skape
____
R ___________
3.
Varke
____
R____________
4.
Pluimvee
____
R____________
BTW 14%
R 20 160-00
TOTAAL
_____
R 164
160-00
Bogemelde vee sal vervoer
word vanaf
BLOEMFONTEIN
na
ALIWAL-NOORD
per vragmotor op 06/11/2001.
Die registrasienommer van
die voertuig is as volg
CFD
561 FS
Ek verklaar voorts dat
hierdie sertifikaat sal dien as
kwitansie
vir die betaling van die vee asook
magtiging
tot die laai en verwydering van gemelde vee.
BTW is
ingesluit/
uitgesluit
by die totale prys van die vee.
Aldus gedoen en geteken
te
BLOEMFONTEIN
hierdie
6
dag
van
NOVEMBER
2001
.
___signed______________
VERKOPER
BTW NR 4470178536.”
The defendants’
special plea is simply this:
7.1 The
plaintiffs’ claim is based on a contract which was concluded on
06 November 2001. The concomitance
thereof is that plaintiffs’
claim against the defendants became due and payable with effect from
06 November 2001;
7.2 The
plaintiffs’ summons was issued on 03 November 2006 and served
on the defendants
“synde
op `n datum
[not
mentioned]
meer as drie
jaar”
after
the plaintiffs’ claim fell due;
7.3 In
the premises the defendants plead that in terms of
s11
of the
Prescription Act, 68 of 1969
, the plaintiffs’ claim became
prescribed, and pray for the dismissal of the action with costs.
Plaintiffs replicated
that the running of the prescription was specifically interrupted by
the defendants’ CM Strydom on
or about February 2001 when he
acknowledged liability in his representative capacity, on behalf of
Riverside Trust. In
addition the plaintiffs make the averment
that they only became aware of the circumstances and the facts under
which the cause
of action arose in the conference during which the
insolvency enquiry was conducted on about 13 June 2006.
Further to the
above they reasonably only became aware of the
identity of the debtor after the sequestration of Greef Trust, more
specifically
upon their appointment as trustees of the insolvent
estate on 09 November 2006. They therefore pray for the
dismissal of
the special plea with costs.
[9]
In their answer to the Request for Further Particulars the defendants
acknowledged that the plaintiffs
had sold shares to J C Greeff in
Bains Lodge (Pty) Ltd Nr 97/18699/07 and Oak Leaves Investment (Pty)
Ltd No 97/11348/07 but denied
that such sale of shares extinguished
the debt of the sale of the forty eight head of cattle to Greeff
Trust. The plaintiffs relied
on the record of evidence adduced during
the enquiry in terms of s 65 of the Insolvency Act, Act 24 of 1936,
wherein it was alleged
that C M Strydom, the aforesaid trustee and
authorised representative of Riverside Trust, purportedly
acknowledged liability and
tendered a set-off against the money owed
by the Greeff Trust to Bainsvlei Trust.
[10] The
parties agreed to the separation of issues in terms of Rule 33(4) of
the Superior Courts Practice and formulated
the issues in terms of
which the Court was required to determine the special plea of
prescription along the lines pleaded by the
parties as set out above.
The rest of the other issues were to be determined
subsequently. This agreement was made an order
of this Court.
[11]
It is a principle of our law that the party that raises the plea of
prescription must show that the
claim is prescribed. But if in
reply to the plea the party against whom the special plea defence is
raised alleges that prescription
was interrupted the onus shifts to
that party to show that it was so interrupted. See
Absa Bank v De Villiers
2001 (1) SA 481
(SCA) at 486 - 487.
Gericke
v Sack
1978 (1) SA 821
(A) at 825E;
Pentz
v Government of the RSA
1983 (3) SA 584(A)
;
Amler’s
Precedents of Pleadings
6
th
ed, 294-295.
[12] The
period of prescription in a case such as this one is three years and
begins to run as soon as the
debt is due, in terms of
s 11
of the
Prescription Act. The
running of that period is interrupted by
the service of any process whereby the creditor claims payment of the
debt in terms of
s 15
of the
Prescription Act. See
Gericke
v Sack
supra
at 825E;
Pentz
v Government of the RSA
at
593E-F
supra
.
[13] The plaintiffs led
the evidence of the third plaintiff, Cornelius Johannes Venter
(
“Venter”
),
to show that the period of prescription in this case was interrupted.
From his evidence and the pleadings it has become common
cause that
Greeff Trust was finally sequestrated on 8 September 2005; that the
plaintiffs were appointed as trustees on 28 July
2005; that the first
creditors’ meeting was held on 18 January 2006; that the second
meeting was held on 20 March 2006 and
postponed to 13 June 2006.
During the second meeting C M Strydom gave information that led
to the institution of these
proceedings. The summons was served on
the first and third defendant (M Strydom) on 8 November 2006 and on
the second defendant
(G J du Plessis) on 10 November 2006.
[14]
Section 15(1)
of the
Prescription Act provides
that:
“
15
Judicial
interruption of prescription
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.
(2) Unless the debtor acknowledges
liability, the interruption of prescription in terms of subsection
(1) shall lapse, and the running
of prescription shall not be deemed
to have been interrupted…”
[15] What
this means is that the debt in this case became due on 06 November
2001. The period of prescription
started to run on that date
and would ordinarily have expired on 06 November 2004 in terms of
s11
of the
Prescription Act.
[16
] Advocate Zietsman,
on behalf of the plaintiffs, submitted that as set out in the trial
bundle handed in as exhibit A1-A33 Venter
sat in the
s65
enquiry and
heard Strydom testify that a set-off agreement was concluded between
him, on behalf of Bainsvlei Trust and J C Greeff
representing Greeff
Trust, during January 2003. He submitted further that that set-off
was an acknowledgement of liability by
Strydom to the insolvent
estate of Greeff Boerdery Trust. He argued that the plaintiffs only
gained knowledge of this acknowledgement
of liability in June 2006.
The period of prescription, so he contended, started running at the
very least in February 2003. This
means that the period of
prescription could only have expired in February 2006. It is
important to remember the remarks,
which I share, of the Court in
Agyrakis
and Another v Gunn and Another
1963(1) SA 602 (T) at 604D-F which are apposite in the circumstances
of this case:
“
It should be noted in passing
that at a meeting of creditors there are no defined issues such as
are found in judicial proceedings.
Witnesses are interrogated to gain
information which the creditors and trustees do not posses or cannot
effectively establish.
The enquiry is for the purpose of discovery.”
[17] There are no
defined examples of set-offs in our law. Each case must be determined
on its own facts.
(MM
Loubser, Extinctive Prescription).
Set-off comes into operation when two parties are mutually indebted
to each other and both debts are liquidated and fully due.
The one
debt extinguishes the other
pro
tanto
as effectually as if payment had been made and can be regarded as a
payment
brevi
manu
.
(Amler’s Precedents of Pleadings, 312).
The
Appellate Division in
Agnew
v Union & South West African Insurance Co Ltd
1977
(1) SA 617(A)
at 623A-C set out the following requirements in order
for the plaintiffs to prove that the defendants acknowledged
liability:
17.1 There must be an
acknowledgement of an existing debt and liability thereof-
Cohen
& Sons v Dormehi
1945 (1) PHF1;
Petzer
v Redford (Pty) Ltd
1953 (4) SA 314(N)
at 317-318;
Markham
v SA Finance & Industrial Insurance
1962 (3) SA 669
(AD) at 676F; and
17.2 The acknowledgement
must be to pay what is due
.
(Wessels, Law of Contract in South Africa, 2nd ed, Vol 2, para 2836.)
From a perusal of the
record of the
s65
enquiry, exhibit A1-A33 of the trial bundle, there
is no evidence that Strydom acknowledged liability on the same cause
of action
as the plaintiffs’ claim that serves before this
Court. In fact in his own words Strydom took it for granted that
because
J C Greeff owed him such a large sum of money it follows
that the forty eight head of cattle would compensate him for what
was
due to him. To compound matters Strydom could hardly remember
when such set-off was proposed or accepted. At some point he could
not distinguish one entity (Bains Lodge/Greeff Boerdery Trust/Greeff
Holdings Company) from the other. Yet he was the person
who
purportedly represented Riverside Trust during the set-off
negotiations. This is what was said at some point during the enquiry
(See page 116, lines 2 to 22 of exhibit A1-A33):
“
V
:
Ja u sien wat my problem is, kyk, u het nou nie ‘n kontrak met
Greeff Boerdery Trust gehad nie, u het ‘n
kontrak met Greeff
Holdings Trust gehad.Aanvanklik met die Greeff Holdings Trust, ja,
met die Greef Holdings Trust die heeltyd,
deurentyd
A
:
Kyk, dit is moontlik, maar ek meen… (tussenbei).
V:
Maar hierdie is nou die Greeff Boerdery Trust se beeste.Dit is hoekom
ek u vra, u kan mos nou nie met die Greeff
Boerdery Trust se
beeste.Dit is hoekom ek u vra, u kan mos nie met die Greeff Boerdery
Trust skuldvergelyking toepas nie. Hulle
het mos nou niks te doen met
die Greeff Holdings Trust se skuld nie.
A:
Nee, kyk, hy is darem die direkteur van daardie…
(tussenbei).
V:
Wel, hy het dieselfde trustee.
A:
Dit is dieselfde trustee, dit is dieselfde begunstigdes.
V:
So dit is hoekom u besluit het om dit so te doen.
A:
Die een kan maar vir die ander een in ‘n noodtoestand mos maar
‘n bietjie hulp gee.
V:
Ons weet nou die Greeff Holdings Trust volgens u het die skuld gehad
en aan die ander kant het die Riverside
A:
Beleggingstrust aan Greeff Boerdery Trust die skuld gehad. ---Kyk, ek
weet nie hoe dit-hierdie goed is gedoen
onder die prokureurs u weet…
(tussenbei).”
[19] In my
view even if a set-off agreement was reached it would have been
invalid because different parties to those
involved in the current
action are involved. Nevertheless there was also no
acknowledgement of indebtedness, let alone an
unequivocal one.
Exhibit A1-A33 explicitly shows that the agreement allegedly entered
into, the sale of shares, was between Bainsvlei
Lodges Beperk and
Greeff Holdings Trust which are two different entities to Riverside
Trust and Greeff Trust which concluded the
sale agreement of the
forty eight head of cattle. See
MM
Loubser, Extinctive Prescription, 146-147.
For
that matter the evidence led at the insolvency interrogation during
which the set-off was allegedly disclosed cannot on
its own prove the
facts in dispute. See
Du
Plessis No v Oosthuizen; Du Plessis No v Van Zyl
1995
(3) SA 604
(O);
Du
Plessis No v Oosthuizen en ‘n Ander
1999 (2) SA 191(O)
;
Debbo
v Claude Whitecross Garage
1962(2)
SA 177(E) at 179E-F.
[20] What I
deduce from the facts before me is that when the Master appointed the
plaintiffs as trustees in November
2005 and when the final
sequestration was granted in September 2005 and further when the
summons was served on two of the defendants
on 8 and 10 November 2006
the claim had already prescribed in November 2004.
[21] Having concluded
that the evidence before this Court does not show any set-off, tacit
or express, the only question that remains
for determination is
whether the plaintiffs had knowledge of the facts from which the debt
arose before the claim prescribed and
whether that knowledge had not
come too late in the day, when the period had effluxed.
In terms of
s12
(3) of the
Prescription Act:
“
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 such
debt arises: Provided that a
creditor shall be deemed to have such knowledge if he could have
acquired it through exercising
reasonable care.”
[22] The
Supreme Court of Appeal has recently stated in
Minister
of Finance and Another v Gore No
2007 (1) SA 111
(SCA) at 119J-121A (para 17 – 19):
“
[17] This Court has, in a
series of decisions, emphasised that time begins to run against the
creditor when it has the minimum facts
that are necessary to
institute action. The running of prescription is not postponed until
a creditor becomes aware of the full
extent of its legal rights, nor
until the creditor has evidence that would enable it to prove a case
'comfortably'.
The defendants relied on these
authorities to contend that Rabie knew, at the latest, by the latter
half of 1995, that Louw and
Scholtz had defrauded 3D-ID out of its
tender. They pointed out that Rabie insistently asserted under oath,
starting with his replying
affidavit in the review (October
1994), and
repeated in his Anton Piller (January 1995) and liquidation
affidavits (April 1995), that fraud tainted the tender process.
The
allegations of fraud then made found expression, later, in the
particulars of claim.
[18] Rabie certainly did cry fraud
soon after 3D-ID lost the tender. But what did he know when he did
so? The defendants' argument
seems to us to mistake the nature of
'knowledge' that is required to trigger the running of prescriptive
time. Mere opinion or
supposition is not enough: there must be
justified, true belief. Belief, on its own, is insufficient. Belief
that happens to be
true (as Rabie had) is also insufficient. For
there to be knowledge, the belief must be justified.
[19] It is well established in our
law that:
(a) Knowledge is not confined to
the mental state of awareness of facts that is produced by personally
witnessing or participating
in events, or by being the direct
recipient of first-hand evidence about them.
(b) It extends to a conviction or
belief that is engendered by or inferred from attendant
circumstances.
(c) On the other hand, mere
suspicion not amounting to conviction or belief justifiably inferred
from attendant circumstances does
not amount to knowledge.
(R v Patz
1946 AD 845
at 857,
Patterton v Minister van Bantoe-administrasie en –ontwikkeling
1974 (3) SA 684
(C) at 687A-B)
It follows that belief that is
without apparent warrant is not knowledge; nor is assertion and
unjustified suspicion, however passionately
harboured; still less, is
vehemently controverted allegation or subjective conviction.”
(Foot notes
omitted).
[23]
In the result, in the light thereof that the prescription was not
interrupted before the lapse of three
years from 06 November 2001,
the claim became prescribed on 06 November 2004 in view of J C
Greef’s failure to institute
action. The appointment of
the plaintiffs as trustees is irrelevant and immaterial as their
knowledge or lack thereof cannot
resuscitate a cause of action that
is time-barred. The special plea must succeed.
ORDER:
I
make the following order:
The
special plea is upheld with costs.
_______________
B.C.
MOCUMIE, J
On behalf of the
applicant:
Adv. P. Zietsman, SC
Instructed by:
Naudes
BLOEMFONTEIN
On behalf of the
respondent: Adv.
S. Reinders
Instructed
by:
Krohn & Kie
BLOEMFONTEIN
/BCM