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2024
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[2024] ZALMPPHC 109
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M.M v Henley Air (Pty) Ltd (7470/2022) [2024] ZALMPPHC 109 (12 September 2024)
SAFLII
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Certain
personal/private details of parties or witnesses have been
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REPUBLIC OF SOUTH
AFRICA
IN THE HIGH COURT OF
SOUTH AFRICA
LIMPOPO DIVISION,
POLOKWANE
CASE NO: 7470/2022
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 a helicopter crash that occurred on 6
th
October 2015. According to the plaintiff’s particulars of
claim, at the time of the crash the plaintiff was a minor and a
pedestrian. Further that prescription paused and started running when
the plaintiff reached the age of majority. The plaintiff
was born on
8
th
February 2001, and has reached the age of majority on
8
th
February 2019.
[2]
The defendant is defending the plaintiff’s action and has
raised a special plea
of prescription. In terms of the defendant’s
special plea, in the ordinary course, the plaintiff’s claim
would have
prescribed on 6
th
October 2018, being 3 years
from 6
th
October 2015 in terms of section 11(d) of the
Prescription Act, 68 of 1969 (Act). At the time of the incident, the
plaintiff was
a minor and had attained the age of majority on 8
th
February 2019. In terms of section 13(1) of the Act, prescription was
delayed for one year following the plaintiff attaining the
age of
majority, being 8
th
February 2020. The plaintiff’s
summons was served on the defendant on 20
th
July 2022.
According to the defendant at the time when the summons was served on
them, the plaintiff’s claim had already
prescribed some two
years and five months. The plaintiff did not file any replication to
the defendant’s special plea.
[3]
At the pretrial hearing the parties have agreed that the plea of
prescription be separated
for hearing prior to the determination of
the merits and quantum in terms of Rule 33(4) of the Uniform Rules of
Court. The parties’
agreement was made an order of court at the
commencement of the trial.
[4]
The defendant’s only witness to testify was Mokgadi Comfort
Raphahlelo. She
testified that she is an admitted attorney, employed
at Pratt Luyt and de Lange as a professional assistant. Pratt Luyt
and De
Lange are the correspondent’s attorneys of the
defendant’s attorneys. She is aware of the facts of the
plaintiff’s
case. She is the one who had collected the incident
report of the plaintiff’s case at Senwabarwana SAPS on 7
th
February 2024.
[5]
When she went to collect the incident report at the SAPS, she did not
make any appointment.
She was assisted by colonel Mnisi. Mnisi
informed her that the incident report had been created on the same
date of the incident
which was the 6
th
October 2015. Mnisi
further informed the witness that the report is made available on the
same date that it has been requested.
Mnisi has also made the entire
docket available to the witness for perusal. The witness found that
the docket also contained a
statement made by the plaintiff to the
police on 7
th
October 2015.
[6]
The witness was cross-examined and she stated that for the members of
the public to
know about the existence of the incident report they
will have to go to the police station. The witness further stated
that she
will not know that the plaintiff was not aware of who the
defendant was until the plaintiff consulted with her legal
representatives.
The witness also stated that she will not know
whether the defendant had visited the victims of the crash. That
concluded the evidence
of the defendant and it closed its case.
[7]
P[…] E[…] M[…] testified as the plaintiff’s
first witness.
She testified that she is the plaintiff’s mother
and she knew about the incident of the 6
th
October 2015.
They did not know the owner of the helicopter that was involved in
the crash. They knew who the owner was after a
long time after they
have instructed their attorney to assist them. On they day of the
incident the police came to the scene and
assisted them in taking the
plaintiff to hospital. The defendant never came to the scene of the
incident. The defendant never phoned
them regarding the incident. The
defendant never visited the plaintiff in hospital. They don’t
even know the defendant.
[8]
The witness was cross-examined and she conceded that the plaintiff
had made a statement
to the police regarding the incident. The
witness stated that they have consulted with their attorney before
the year 2020 before
the plaintiff turned 18 years. The witness
stated that she never talked to the police about the incident.
[9]
The plaintiff has testified as the second witness for her case. She
testified that
on 6
th
October 2015 she was on her way to
the shop when a helicopter which was flying towards the mountain
crashed and was surprised when
she saw herself falling to the ground
and could not stand up. Some people came, assisted her and took her
to the health centre.
Later she was transferred to the hospital. The
following day whilst in hospital she was visited by the police who
took her statement.
At the time of the incident she was still a
minor. Her attorney informed her about the details of the defendant
during May 2020.
Her attorney later reported to them that the
defendant had offered to settle her claim in the sum of R150 000.00.
[10]
At this stage the plaintiff intended to introduce the defendant’s
without prejudice letter
dated 8
th
December 2020 in which
they have made an offer to the plaintiff’s claim. The defendant
objected to that arguing that the
plaintiff wanted to prove that the
offer had interrupted prescription without the plaintiff having
pleaded that in their pleadings.
The objection was upheld, and
thereafter the parties agreed that the plaintiff will no longer
continue leading any further evidence,
and also that the defendant
will not cross-examine the plaintiff. The parties further agreed that
the remaining other issues will
be disposed on arguments.
[11]
The defendant’s counsel had submitted that the plaintiff in her
particulars of claim had
expressly pleaded that prescription started
running when the plaintiff attained the age of majority on 8
th
February 2019. However, in the opening address and in the plaintiff’s
heads of arguments the plaintiff submits that she only
acquired
knowledge of the debtor’s identity in May 2020, implying that
prescription only started running on that date. The
defendant submit
that the two versions prejudice the defendant in that the lack of
clarity regarding the date on which prescription
started to run means
that the defendant is uncertain about the case that it is expected to
meet.
[12]
The defendant argues that the plaintiff’s claim must fail on
both versions. In the first
pleaded version, the plaintiff pleaded
that the only reason that prescription did not begin to run on the
date of the accident
was that the plaintiff was a minor and
prescription had paused and started running when plaintiff reached
the age of majority on
8
th
February 2019. Section 13(1) of
the Act provides that if a creditor is minor, and the period of
prescription would ordinarily be
completed before or within one year
after the day on which the relevant impediment has ceased to exist.
[13]
The defendant further submits that the second new version also lacks
merits. The plaintiff had
testified that she only learned about the
defendant’s identity in May 2020. That with this new version
the plaintiff seeks
to argue that her claim would have only
prescribed in 2023. The defendant submits that the new version
contradicts the pleaded
version of events. The plaintiff cannot be
permitted to plead and thus unequivocally admit that prescription
started running on
8
th
February 2019, but, at trial,
change this to a new date of May 2020. This version was not pleaded
and thus the plaintiff cannot
rely on it, and that the parties are
bound by their pleadings. That the plaintiff had ignored the express
wording of section 12(3)
of the Act of which the deeming provision is
applicable in the plaintiff’s case.
[14]
On the issue of costs, the defendant had made a tender that should
the special plea be upheld,
it is not seeking a costs order against
the plaintiff, but that the tender will not be applicable to further
processes should the
plaintiff decide to appeal.
[15]
The plaintiff’s counsel had submitted that the defendant’s
special plea was initially
based on sections 13 and 14 of the Act and
not on section 12. The court is required to deal with all the
evidence that has been
led. That the question is when did the
plaintiff become aware of the identity of the defendant, which the
plaintiff submits that
it is the 20
th
May 2020. The
reasons the plaintiff is saying that the defendant had prevented the
plaintiff from knowing its identity is that
the defendant never
visited the scene of the accident, and the aircraft accidents are
unusual. The plaintiff is only a matriculant
and would not have known
about the existence of the civil aviation regulatory authority. The
police only took the plaintiff’s
statement but never advised
the plaintiff to institute a civil claim.
[16]
The plaintiff further submitted that the only time she became aware
of the identity of the defendant
was on 20
th
May 2020, and
that makes prescription of her claim to run up to the 5
th
October 2023. The plaintiff had led evidence and was not
cross-examined, and therefore her version remained unchallenged. That
the plaintiff was misled by the defendant when it made an offer to
settle her claim, and that led to the plaintiff to relax and
thought
that her claim will be settled. The plaintiff also relied on the case
of
Macolm v Premier, Western Cape
Government
2014 (3) SA
177
(SCA)
. On the issue of costs, the plaintiff’s counsel
submitted that the plaintiff is unemployed and that should the
special plea
be upheld, each party to pay her or its costs.
[17]
This court is called upon to determine whether the plaintiff’s
claim has prescribed. It
is common cause and admitted by the parties
that (i) the plaintiff’s cause of action arose on 6
th
October 2015; (ii) plaintiff was born on 8
th
February
2001; (iii) at the time of the alleged incident plaintiff was 14
years of age; (iv) the plaintiff turned 18 years on 8
th
February 2019 and that is the date on which she attained the age of
majority; and (v) summons was issued on 8
th
July 2022 and
served on the defendant on 20
th
July 2022.
[18]
Section 12 of the Act read as follows:
“
(1) Subject to the
provisions of subsections (2), (3), and (4), prescription shall
commence to run as soon as the debt is due.
(2) If the debtor
wilfully prevents the creditor from coming to know of the existence
of the debt, prescription shall not commence
to run until the
creditor becomes aware of the existence of the debt.
(3) 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
the debt arises: Provided that
a creditor shall be deemed to have such knowledge if he could have
acquired it by exercising reasonable
care.
(4) Prescription shall
not commence to run in respect of a debt based on the commission of
an alleged sexual offence as contemplated
in
sections 3
,
4
,
17
,
18
(2),
20
(1),
23
,
24
(2),
26
(1) and
71
(1) or (2) of the
Criminal Law
(Sexual Offences and Related Matters) Amendment Act, 2007
, during the
time in which the creditor is unable to institute proceedings because
of his or her mental or psychological condition”.
[19]
In
Minister
of Finance and Others v Gore
[1]
Cameron JA et Brand JA said:
“
This court has, in
a series of decisions, emphasised that time begins to run against the
creditor when it has 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’”.
[20]
The plaintiff’s pleaded case is that at the time of the
incident, the plaintiff was still
a minor, and therefore prescription
had paused and started running when the plaintiff reached the age of
majority. It is common
cause that the plaintiff had reached the age
of majority on 8
th
February 2019.
[21]
Section 13(1) of the Act read as follows:
“
If-
(a) the creditor is a
minor or insane or a person under curatorship or is prevented by
superior force including any law or any order
of court from
interrupting the running of prescription as contemplated in
section
15(1)
; or
(b) the debtor is outside
the Republic; or
(c) the creditor and
debtor are married to each other; or
(d) the creditor and
debtor are partners and the debt is a debt which arose out of the
partnership relationship; or
(e) the creditor is a
juristic person and the debtor is member of the governing body of
such juristic person; or
(f) the debt is the
object of a dispute subject to arbitration; or
(g) the debt is the
object of a claim filed against the estate of a debtor who is
deceased or against the insolvent estate of the
debtor or against a
company in liquidation or against an applicant under the Agricultural
Credit Act, 1966 (Act No, 28 of 1966);
or
(h) the creditor or the
debtor is deceased and an executor of the estate in question has not
yet been appointed; and
(i) the relevant period
of prescription would, but for the provisions of this subsection, be
completed before or on, or within one
year after, the day on which
the relevant impediment referred to in paragraph (a), (b), (c), (d),
(e), (f), (g) or (h) has ceased
to exist.
the period of
prescription shall not be completed before a year has elapsed after
the day referred to in paragraph (i)”.
[22]
In
Shoprite
Checkers (Pty) Limited v Mafate N.O
.
[2]
Madlanga J said:
“
Paragraph (i)
provides that if the relevant period of prescription would, but for
the impediments contained in section 13(1)(a)
to (h), be completed
before or on, or within one year after, the day on which the relevant
impediment has ceased to exist, the
period of prescription shall not
be completed before a year has elapsed after the day of cessation of
the impediment. That means
if, on or before the date of cessation of
the impediment, the period of prescription would have been completed,
the claimant has
only one year – not three – within which
to institute proceedings. Even where the period of prescription would
have
been completed within a year after the impediment has ceased,
the claimant still has a year from the date of cessation of the
impediment
to bring action. If, by the date of cessation of the
impediment, the period still remaining was more than a year, the
claim must
be instituted within that remaining period”.
[23]
Ordinarily the plaintiff claim would have prescribed 6
th
October 2018 which is 3 years after the date of the incident. Since
the plaintiff was still a minor at the time of the accident,
that is
the impediment that is envisaged by section 13(1)(a) of the Act, and
therefore prescription of her claim was delayed for
1 year after she
had attained the age of majority. Ordinarily the plaintiff’s
claim would have prescribed on 8
th
February 2020. That is
also in line with the plaintiff’s pleaded case.
[24]
The plaintiff’s evidence which has been tendered before court
and also in the plaintiff’s
heads of argument are not line with
her pleaded case. The plaintiff has testified that she only became
aware of the identity of
the defendant on 20
th
May 2020,
and argues that it is the day on which prescription started to run.
Counsel for the plaintiff has submitted that the
defendant’s
failure to visit the scene of the accident and the plaintiff,
amounted to the defendant preventing the plaintiff
to know the
existence of her claim and the identity of the defendant. Plaintiff’s
counsel has further submitted that the
plaintiff’s educational
level is that of a matriculant and would not have known about the
existence of the Civil Aviation
Regulatory Authority. However, all
these issues are new and have not been pleaded by the plaintiff. The
plaintiff has raised these
new issues for the first time in her heads
of argument and at the trial of the special plea.
[25]
The defendant’s plea together with its special was served on
the plaintiff’s attorneys
on 23
rd
August 2022. The
plaintiff has been aware of what the defendant was raising in their
special plea from the date of service, and
despite that, the
plaintiff has failed to file a replication to the defendant’s
special, or seek an amendment to her particulars
of claim.
[26]
In
Phakula
v Minister of Safety and Security
[3]
Mocumie JA said:
“
It is trite that
the whole purpose of pleadings is to define the issues between the
parties, to confine 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
trial”.
[27]
What the plaintiff has raised during the trial of the special plea is
not ascertainable from
her pleadings. It seems also as if the
plaintiff is not sure of what defence to raise in order to ward off
the defendant’s
special as she had raised more than one defence
which does not appear in her pleadings and also without
substantiating them. As
per the plaintiff’s pleaded case, the
only impediment to delay the running of prescription was that she was
still a minor.
The plaintiff’s pleadings do not state any other
impediment which the plaintiff has encountered after she had attained
the
age of majority. As the plaintiff’s pleadings stand, her
claim has prescribed. It follows that the defendant’s special
plea of prescription stands to be upheld.
[28]
In the result the following order is made:
28.1 The defendant’s
special plea of prescription is upheld and plaintiff’s claim is
dismissed.
28.2 Each party to pay
its/her own costs.
KGANYAGO
J
JUDGE OF THE HIGH
COURT OF SOUTH AFRICA,
LIMPOPO DIVISION,
POLOKWANE
APPEARANCES:
Counsel
for the plaintiff
:
Moitsi MA
Instructed
by
:
Moitsi and Associates
Counsel
for the respondent
:
Adv Dafel M
Instructed
by
:
Bowman Gilfillan Inc
Date
heard
:
22
nd
August 2024
Electronically
circulated on
:
12
th
September 2024
[1]
2007
(1) SA 111
(SCA) at 119 J-120A
[2]
[2024]
ZACC 16
(15 August 2024) at para 28
[3]
[2020]
ZASCA 109
(23 September 2020) at para 12