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[2024] ZALMPPHC 29
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M.M v Henley Air (Pty) Ltd (7470/2022) [2024] ZALMPPHC 29 (2 April 2024)
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC
OF SO
U
TH
AFRICA
IN
THE HIGH COURT
OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO:
7470/2022
(1) REPORTABLE:
YES
/NO
(2) OF INTEREST TO THE
JUDGES:
YES
/NO
(3) REVISED
DATE: 02/4/2024
SIGNATURE:
In
the matter between:
M[...]
M[...]
PLAINTIFF
And
HENLEY
AIR (PTY)
LTD
DEFENDANT
JUDGEMENT
KGANYAGO
J
[1]
The plaintiff has
instituted an action against the defendant claiming damages arising
out of an incident that occurred on 6t
h
October 2015 when the
plaintiff was injured by the defendant
'
s
helicopter that collided with wires and crashed
.
As at the date
of the incident the plaintiff was still a minor
,
and she
attained the age of majority when she turned 18 years on 8th
February 2019. The
plaintiff has served the summons on the defendant 20th
July 2022
.
[2]
The defendant had
defended the plaintiff's action. In pleading to the plaintiff
'
s
particulars of claim
,
the defendant
had also raised a special plea in which it had p
l
eaded
that the plaintiff
'
s
claim had prescribed on 8
t
h
February 2020, which is one year after the plaintiff has attained the
age of majority. At the commencement of the trial the part
i
es
agreed to separate the issue of special plea of prescription from
other issues for prior determination
in terms of Rule
33(4) of the Uniform Rules of Court (the Rules).
[3]
Both parties have led
oral evidence. When the plaintiff was leading one of her witness
,
it sought to
introduce a without prejudice letter dated 8
t
h
December 2020
in which the
defendant
had
made
an offer
which
was
not
acceptable
to the plaintiff. The
purpose for the plaintiff to introduce the without prejudice letter
,
was to argue
that it had interrupted prescription.
[4]
The defendant had objected
to the introduction of its without prejudi
c
e
letter. The basis of their objection is that the plaintiff tries to
prove the interruption of prescription through section 14
of the
Prescription Act 68 of 1969
(
Act)
.
That the issue
of interruption of prescription must be alleged and proved by the
plaintiff in the pleadings
,
and the onus
rest with the plaintiff. The plaintiff has not alleged the
interruption of prescription in her pleadings
.
Because the
plaintiff has failed to allege the interruption of prescription in
her pleadings
,
she cannot
introduce the
evidence on that issue
,
as this will
cause prejudice to the defendant. Pleadings are supposed to put the
defendant on the terms of the case it had to meet
at trial.
[5]
For the first time
the defendant had wind that the plaintiff was going to raise the
issue of interruption of prescription was a
week before the trial
date when the plaintiff filed her heads of argument which was also
filed late. The plaintiff cannot lead
evidence of a case not pleaded.
The plaintiff has conceded that the 8th
December 2020 letter
does not state that the defendant admit liability. Therefore
,
the plaintiff
does not fall within the narrow exception as stated in
KLD
Residential
CC
v
Empire
Earth Investment 17 (Pty) Ltd
2017 (6) SA 55
(SCA).
In
the KLD case there was acknowledgment of liability.
[6]
The plaintiff
'
s
counsel has submitted that the defendant in their 8th
December 2020 letter
did not state that they are liable, but in that letter
,
they undertook
to compensate the plaintiff R150 000.00. According to the plaintiff
this amount to tacit acknowledgment of liability.
Section 17(2)
of
the
Prescription Act provides
that a party to litigation who invokes
prescription
,
shall do so in
the relevant document filed of
record
in the
proceedings, provided that a
court
may allow
prescription to be raised at any stage of the proceedings. The
defendant had
ex
facie
seen that
there was prescription and should have raised an exception
,
and the
plaintiff relied on the case of
Jugwanth
v MTN
[2021] ZASCA 114
(9
September
2021
).
The
plaintiff had further submitted that where prescription can be
spotted from the particulars of
claim
the
correct
approach is to
raise an exception
.
That they
did
not file a
replication as it was not
appropriate
for the
defendant to have raised
a
special plea
,
and the
defendant's special plea will not succeed.
[7]
There are two issues
which this court is required to determine. The first issue is whether
the without prejudice settlement proposal
in the defendant's letter
dated 8th
December
2020 in
which
a draft
settlement agreement was also attached to the letter should as an
exception be admitted in evidence for the limited purpose
of showing
that the period of prescription has been interrupted,
which
in turn begun
to run afresh. The second
issue
is
whether the
defendant should have
raised
the defence of
prescription by
way
of a special
plea or exception.
[8]
The
defence
of prescription
is
a technical
defence
which
does
not
go
into
the merits of
the case
,
and
can
dispose
the matter without the merits been
dealt
with. It is a
defence
which
in terms of section 17(1) of the Act
a
court shall
not
of its own motion take notice of prescription.
The
party
who invokes
prescription
must in terms of section 17(2) of the Act file a relevant document in
the proceedings at any
stage
of
the
proceedings
.
The question
is whether
this
document
should be
in the
form
of a special
plea or
exception.
[9]
In terms of rule
23(1) of
the
Rules
,
a party
intending
to
take
an
exception must
do
so
within 1
0
days
of
receipt
of the pleading. It is trite that
an
exception
goes
to
the
root
of
the
entire
claim
or
defence.
In
the
Jugwanth
case
at
paragraph 12 in
relation
to
an
exception Gorven
JA
said:
"
The
true
test
remains
to
determine whether the particulars of claim sustain a cause of action.
It is important to
bear
in mind that
Uniform Rule 23
(
4)
does
not
,
in the
ordinary course
,
envisage
further pleading
,
including
a
replication
that
might
be
a
retort
t
o
a
pl
e
a
of pres
c
ription
.
In trial
p
r
oceedings
prescription
is
conventionally
raised by way of a special plea to which
there
might
be a
replication
.
E
x
ceptions
are decided on
the
pl
e
adings
as they stand at the t
i
me
that the exception is
taken"
.
[10]
When a party raises
the defence of prescription
,
he or she does
not challenge the particulars of claim that they did not sustain a
cause of action
,
but raises a
technical issue which had the potentia
l
to dispose the
whole matter or partially without going into the merits of the case.
Even if it appears
ex
facie
that
the claim has prescribed
,
that does not
mean that the particulars of claim will not sustain a cause of
action. There is a cause of action to be sustained,
but that cause of
action might have prescribed. Hence the other party may replicate
setting out the basis on which the c
l
aim
might have not prescribed, whilst in an exception there is no
provision to replicate
,
but the
exception is decided on the pleadings as they stand. It will
therefore be a party
'
s
choice whether to raise prescription by way of special plea or
exception depending on the facts of the case. In the case at hand
the
defendant cannot be faulted for having raised their defence of
prescription by way of a special plea.
[11]
Turning to the
without prejudice letter
,
on 23rd
November 2020 the
then plaintiff
'
s
attorneys had written to the defendant's attorneys proposing that the
defendant admits liability of the plaintiff
'
s
claim and that they deal with the issue of quantum later. In that
letter the plaintiff shows that the parties have exchanged a
series
of emails before that letter. The plaintiff's attorneys in that
letter have threatened to institute a civil claim against
the
defendant should the defendant denies liability of the plaintiff
'
s
claim.
[12]
That
led
to
the
defendant
writing
the
without
prejudice
letter
dated
8th
December
2020 which is currently the subject of an objection
.
In that letter
the defendant
'
s
attorneys have given a long background of the matter
,
and thereafter
titled a certain paragraph
"
Without
prejudic
e
settlement
proposal"
and
it read as follows
:
"
18.
Notwithstanding the
above
and
without
any admission
of
liability
to your client
as
demanded
or
at all,
our
client
is
amenable
to
reaching
an
expeditious
and
cost-effective
resolution of
the
claim.
Accordingly,
our
client tenders
settlement on
the
following
terms:
18.1
Our client will pay
R150 000.00 (settlement amount) to your client in full and final
settlement
of
claim without any admission of
liability.
Payment
of
the
settlement
amount will
be
in settlement
of
any
and all
claims, damages
,
and causes of
action which your client has
now
or may
have
in
the
future
against our
client arising out of the
incident.
18.2
Your
client will sign the
attached
settlement
agreement.
Yo
ur
client must
sign the agreement personally.
18.3
Each
party
will be liable
for
its
own
legal costs
incurred
in respect
of
the matter.
18.4
Neither the
payment
of the
settlement
amount
nor
the
execution
of the
settlement
agreement constitutes or should be construed as an admission of any
liability
whatsoever
by
either party.
19.
Please provide
us
with the
signed agreement by no
later
than
close of
business on 24th
December
2020
,
failing
which the
offer will lapse.
20.
We
further
remind
you
that without
prejudice settlement negotiations are inadmissible in
legal
proceedings
,
save as to
extent of
cos
ts
.
Should your
c
lient
institute
legal
proceedings and the proved quantum of her claim is ultimately not
materially greater than that offered herein
,
we will bring
this settlement offer to the
court's
attention and
seek the appropriate
costs
order against
your
c
lient.
21.
All our client's
rights remain reserved
"
.
[13]
As a general rule without
prejudice
letters
are
inadmissible
as evidence
,
as parties are
encouraged to settle
their
disputes on
their own without been involved in costly and protracted litigation.
Parties
must
be able
to
negotiate
freely
and
good faith
without the fear that
the
admissions
they made during settlement negotiations
might
be
used
against them
should the negotiations
fail.
However
,
for
public
policy
there
are
exceptions
to
the
rule
.
The
generally
accepted
exception is where the without prejudice
offer
will be
admissible in evidence as an act
of
insolvency.
The
KLD case above had added another exception, and that is
where
an
acknowledgment of
liability
is
made
such that, by
virtue
of
section 14
of
the
Prescription
Act
>
,
they
would
interrupt
the
running of prescription.
[14]
In
the
KLD
case
Lewis JA
at
paragraph
39 writing
for
the majority
said:
"
I
consider that the exception
is
well contended
is well founded
.
Where
acknowledgments of
liability
are made such
that, by virtue of
s 14
of the
Prescription Act
,
they would
interrupt
the
running of
prescription, such acknowledgments should be admissible
,
even if made
without prejudice during settlement negotiations
,
but solely for
the
purposes of
interrupting
prescription.
The
exception
itself is
not
absolute
and
will depend on
the facts of each matter
.
And there is
nothing to prevent the parties from expressly or imp
l
iedly
ousting it in their discussions. What the exception allows for
,
as
I
see
it
,
is the
prevention of
abuse
of the without
prejudice rule
,
and
the
protection of
the creditor
.
The
admission
remains protected insofar as proving the existence and quantum of the
debt concerned
.
It is
not
,
as Empire
Earth suggested in argument
,
a question of
the without prejudice rule trumping prescription. It is a question of
recognising
that
both s
14
of the
Prescription
Act and
the
without prejudice rule protect policy interest
,
and
recognising an exception so that both interests are
properly
served
".
[15]
From
the
letter
of
the
plaintiff
'
s
attorneys dated 23rd November 2020 there were prior emails
communication which the plaintiff wanted the defendant to admit
liability
of
the
plaintiff's
claim
,
but
the
defendant was
not
doing
that.
The
plaintiff in their
letter of the 23
rd
November was
still requesting
the
defendant to
admit
liability
and that
they
deal with
quantum
later
.
In
that
letter the defendant is requested to either admit or deny liability
.
In
the
event of denial of
liability
that will
enable the plaintiff to proceed with its civil claim against the
defendant. The defendant
instead
of unequivocal
denial
or
admission of liability, came
up
with the
settlement
offer
and
also
in
their
letter
attached
a
draft
of
the
deed
of
settlement.
That
had
enticed the plaintiff to continue negotiating. It would have been
undesirable for the plaintiff to
negotiate
and at the
same time proceed with the civil claim against the defendant. Had the
plaintiff done so
,
she would have
been accused of negotiating in bad faith and also defeating the
purpose of minimizing costs.
[16]
On receipt of the
defendant's offer, the plaintiff
'
s
attorney per their letter dated 9
th
December 2020 were
pleased with the
new
developments
and even wrote a letter to the defendant stating that there was a
high possibility that the claim will be settled out
of court. The
negotiations continued and the parties agreed to appoint an expert
who is an orthopaedic surgeon to conduct a medico-legal
assessment of
the plaintiff of which the parties will equally share the costs of
the expert. The defendant proceeded
to obtain the
quotation of the two experts. The negotiations continued and the
plaintiff was assessed during May 2021. Throughout
their
correspondence
,
the defendant
was stating that they were engaging in that process for the purposes
of exploring a commercial settlement of the plaintiff
'
s
claim and that the process they were engaging in did not constitute
an admission of liability
.
Negotiations
continued up June 2022 when the defendant informed the plaintiff per
their letter dated 21
s
t
June 2022 that all the plaintiff's claim against the defendant had
prescribed on 8
th
February 2022
.
That led to
the plaintiff instituting the civil claim against the defendant.
[17]
Even though the
defendant had throughout the negotiations stated that it was not
admitting
liability
,
the implied
impression they have created was that they were willing to settle
.
Firstly,
when
the
defendant
was
requested
to
either
admit or deny
liability
,
it
came up with a settlement proposal which enticed the plaintiff to
continue with settlement
negotiations.
Secondly
,
to show that
the parties
were
serious about settling their dispute out of court
,
they agreed to
take the plaintiff for medical assessment in order to settle the
claim
.
Normally
,
the
medico
-
legal
reports assist in determination of quantum. The parties will only
deal with quantum once the issue of liability has been disposed.
Even
though the defendant had throughout that process consistently stated
that the settlement negotiations were without admission
of liability,
their action was impliedly telling the opposite. This is one example
where the abuse of without prejudice rule should
be prevented. The
defendant had willingly been negotiating with the plaintiff for more
a year
,
and
giving hope to the plaintiff that the claim will be settled
,
but suddenly
tells the plaintiff that her claim had prescribed
.
[18]
The
plaintiff
at
the
time
of
instituting
the
action
against
the
defendant
was
aware of the without
prejudice letter and having all the facts in relation to her delaying
in instituting the action against the
defendant. The plaintiff in her
particulars of claim did not p
l
ead
that
the
without
prejudice offer had
interrupted
prescription
.
What she had
pleaded in her particulars of claim in relation to prescription was
that at the time of the crash the plaintiff was
still a minor
,
prescription
had paused and started running when the plaintiff reached the age of
majority. Even after been served with a plea of
prescription
,
the plaintiff
has failed to file a replication setting out facts which according to
her will render the matter not to have prescribed.
The issue that the
defendant
'
s
without prejudice offer had interrupted prescription was raised for
the first in her heads of arguments
.
[19]
Rule
18(4)
provides that every pleading shall contain a clear and concise
statement of the material
facts
upon which the pleader relies for his or her claim
,
defence
or
answer
to
any
pleading
,
as
the
case
may
be
,
with
sufficient
particularity to enable the opposite party
to
reply.
In
Phakula
v Minister of Safety and Security
[1]
Mocumie
JA said:
"It
is trite
that
the
whole
purpose
of
pleadings is to define the issues
between
the
parties
,
to
confine
the
evidence
of the tr
ia
l
to
the
matters
relevant
to
those
i
ssues
,
and ensure
that
the
trial may proceed to judgment
without
either party
being disadvantaged by
matters
not fairly
ascertainable from the pleadings
.
In other
words,
a
party should
know
in
advance
,
in
broad
outline
,
the
case
they
will
have
to meet
at the trial
"
.
[20]
The material facts
upon
which
the pleader relies upon for his or her
c
laim
should appear
in the pleadings
in
a
clear and
concise
manner
,
and
not
for
the
first
time in the heads of
argument. By admitting the defendant's letter of
without
prejudice
offer of the 20th December 2020 in evidence despite the pla
i
ntiff
having failed to plead interruption of prescription by the
defendant
'
s
offer
in
her pleadings to
enable the defendant to
reply,
will be
disadvantaging and prejudicing the defendant.
The defendant's
special
plea
is based only
the issue of prescription
allegedly being
paused when the
p
la
intiff
was still a
minor
.
There
is therefore merit on
the
defendant's
objection
.
[21]
In the result the
following ruling is made:
21.1
The defendant's
obje
c
tion
in its
without
prejudice
letter
of 20th
December
2020
being admitted
in
evidence
is
upheld
.
21.2
Costs
will
be costs in
the main action
.
KGANYAGO J
JUDGE
OF THE HIGH COURT OF SOUTH AFRICA,
LIMPOPO
DIVISION, POLOKWANE
APPEARANCES:
Counsel
for the plaintiff
:Moitsi
MA
Instructed
by
:
Moitsu & Associates
Counsel
for the defendant
:
Adv Dafel M
Instructed
by
:
Bowman Gilfillan Inc
Date
heard
:
22nd February 2024
Electronically
circulated on
:
2nd April 2024
[1]
[2020
]
ZASCA
109
(
23
September 2020) at
para
12