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2024
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[2024] ZALMPPHC 34
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Mahlomola v Henley Air (Pty) Ltd (7470/2022) [2024] ZALMPPHC 34 (2 April 2024)
REPUBLIC
OF SOUTH AFRICA
IN
THE HIGH COURT OF SOUTH AFRICA
LIMPOPO
DIVISION, POLOKWANE
CASE
NO: 7470/2022
REPORTABLE
OF
INTEREST TO OTHER JUDGES
REVISED
DATE:
In
the matter between:
MAKHURA
MAHLOMOLA
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 6
th
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 8
th
February
2019. The plaintiff has served the summons on the defendant 20
th
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 pleaded that the plaintiff’s
claim had prescribed on 8
th
February 2020, which is one
year after the plaintiff has attained the age of majority. At the
commencement of the trial the parties
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
th
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 prejudice
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 8
th
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
8
th
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 8
th
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 10 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
to a plea of
prescription. In trial proceedings prescription is conventionally
raised by way of a special plea to which there might
be a
replication. Exceptions are decided on the pleadings as they stand at
the time 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 potential 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 claim
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 23
rd
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 8
th
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
prejudice 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. Your 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 24
th
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 costs.
Should your client 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 client.
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 impliedly 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 23
rd
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
st
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 plead
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 trial
to the
matters relevant to those issues, 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
claim 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 20
th
December 2020 in evidence despite the plaintiff 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 plaintiff 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 objection in its without prejudice letter of
20
th
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
:
22
nd
February 2024
Electronically
circulated on
:
2
nd
April 2024
[1]
[2020]
ZASCA 109
(23 September 2020) at para 12