THE REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Case No.: 20689/2018
Before the Hon Madam Justice $lingers
Hearing: 13 May 2025
Judgment Delivered: 10 June 2025
In the matter between:
THE CITY OF CAPE TOWN
and
CELL C LIMITED
HAUWEI TECHNOLOGIES SOUTH AFRICA (PTY) LTD
SAAB GRINTEK TECHNOLOGIES (PTY) LTD
CORLINE 165 CC Plaintiff
First Defendant
Second Defendant
Third Defendant
Fourth Defendant
This judgment is handed down electronically by circulation to the parties' legal representatives ' email
addresses . The date of hand-down is deemed to be 10 June 2025.
JUDGMENT
SLINGERSJ
Introduction
[ 1] The plaintiff instituted action proceedings against the defendants wherein it
claimed an amount of R909 900.00 together with interest at ten percent per
annum from service of the summons to date of final payment.
2
[2] It was the plaintiff's pleaded case that:
(i) during October 2015 the plaintiff granted the first defendant permission to
access Cape Town Stadium ('the stadium') in order to install
infrastructure ('the installation') for the purposes of servicing the first
defendant's customers at the stadium. This permission was granted for
the period 26 October 2015 to 11 December 2015; 1
(ii) the first defendant appointed the second defendant as its contractor to do
the installation. In turn, the second defendant appointed the third
defendant who appointed the fourth defendant;2
(iii) the second, third and fourth defendants all worked on the installation at
gridline 50 on level 6 of the stadium3;
(iv) on 18 November 2015 the plaintiff discovered extensive damage to the
external fa9ade of the stadium which was caused by a metal panel which
had dislodged from gridline 50 on level 6 of the stadium and which fell on
or through the fa9ade, damaging same4;
(v) at all material times it was the first defendant 's duty to ensure that the
installation was done without any harm or damage to the stadium5; and
(vi) inasmuch as the damage was caused by the second, alternatively , the
third, alternatively the fourth defendant 's action, it remained the duty of the
1 Paragraph 7 of the amended particulars of claim, page 6
2Paragraph 8 of the amended particulars of claim, page 6
3 Paragraph 9 of the amended particulars of claim, page 6
4 Paragraph I O of the amended particulars of claim, pages 6-7
5 Paragraph 12 of the amended particulars of claim, page 7
3
first defendant to ensure that no damage was done to the stadium and it
could not rid itself of this duty by appointing a contractor . 6
[3] The plaintiffs main claim was against the first defendant with an alternative claim
against the second, alternatively the third, alternatively the fourth defendant. The
alternative claims against the second, alternatively the third, alternatively the
fourth defendant were brought in the event that the court found that they were
independent contractors and that the first defendant could not be held liable for
any of their actions. 7
[4] The first and second defendants ('the defendants') invoked a special plea of
prescription. They averred that the cause of action arose on 18 November 2015
and that the summons instituting the proceedings were served on them after 18
November 2015. Consequent ly, the plaintiffs claim against them prescribed
before the service of summons in terms of section 11 of the Prescription Act, Act
68 of 1969.
[51 Section 11 of the Prescription Act provides that:
'11 Periods of prescription of debts
The periods of prescription of debts shall be the following:
(a) Thirty years in respect of-
(i) any debt secured by mortgage bond;
(ii) any judgment debt;
(iii) any debt in respect of any taxation imposed or levied by or under any law;
6 Paragraph 13 of the amended particulars of claim, page 7
7 Paragraph 15 of the amended particulars of claim, page 8
4
(iv) any debt owed to the Stato in respect of any share of the profits, royalties
or any similar consideration payable in respect of the right to mine
minerals or other substances;
(b) fifteen years in respect of any debt owed to the State and arising out of an
advance or loan of money or a sale or lease of land by the State to the
debtor, unless a longer period applies in respect of the debt in question in
terms of paragraph (a);
(c) six years in respect of a debt arising from a bill of exchange or other
negotiable instrument or from a notarial contract, unless a longer period
applies in respect of the debt in question in tenns of paragraph (a) or (b);
(d) save where an Act of parliament provides otherwise, three years in respect of
any other debt.'
[6] The plaintiffs claim would prescribe within a period of three years as it falls within
the ambit of section 11 ( d) of the Prescription Act.
[7] Aside from invoking the plea of prescription, the second defendant gave notice of
its intention to seek a punitive costs order against the plaintiff.
[8] In replicating to the defendants ' special plea, the plaintiff pleaded as follows:
'The Plaintiff denies that its cause of action arose on 18 November 2015
or that the debt in question fell due by then.
In amplification of the aforesaid denial the Plaintiff pleads that although it
discovered that the fa<;ade was damaged on 18 November 2015, it did not
know who was responsible for causing the damages as various entities
worked and cleaned at Gridline 50 on Level 6 of the stadium in November
2015.
These various entities all blamed one another for the damages and
advanced different theories as to how it occurred and as such it was
impossible to ascertain the identity of the Plaintiffs debtor and the facts
5
from which the debt arises without a thorough investigation and, in any
event, before 21 November 2015.'
[9] The parties agreed that the question of prescription, as raised in the pleadings,
be dealt with separately to the merits of the plaintiffs claim. Pursuant to this
agreement the special plea of prescription was set down for adjudication on 13
May 2025.
The evidence
( l OJ The defendants accepted that they bore the duty to begin and the onus.
[I 1) In his opening statement counsel for the first defendant submitted that the
plaintiff sought to impose strict liability on it in terms of its pleaded case. This
rendered the actual identity of the defendant I entity who caused the damage
irrelevant. Furthermo re, the first defendant submitted that section 12(3) of the
Prescription Act found no application. As the plaintiff discovered the loss on 18
November 2015 and served its summons on 21 November 2018, the plaintiffs
claim against it had prescribed .
[ 12] Section 12(3) of the Prescription Act provides that:
'12(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.'
[13] The first defendant closed its case after its opening statement and without calling
any witnesses.
6
[14] In his opening statement the legal representative for tne second defendant
submitted that there were no grounds on which the plaintiff could succeed. It
then proceeded to call Mr Oliver Masiyakurima ('Masiyakurima'). He testified
that he was employed with the second defendant since December 2014 as an
ICS service engineer and that he was responsible for the network provision.
[I 5] He testified that the second defendant was responsible for the full end-to-end
network installation and that it was contracted by the first defendant.
Masiyakurima testified that the first defendant was the user and that the second
defendant was responsible for the implementation .
[16] Masiyakurima confirmed that he was employed with the second defendant during
2015 in the same position as that which he currently occupies. Masiyakur ima
confirmed that the plaintiff appointed the first defendant for works to be done at
the stadium and in turn the first defendant appointed the second defendant.
[17] The second defendant was responsible for the site survey, installation and the
hand over. The second defendant does not do the physical work but would
appoint another contractor to do the physical work which it would supervise and
monitor.
[18] On 30 September 2015, Herman Jacobs ('Jacobs') of the first defendant
contacted Kevin Wood ('Wood') of the plaintiff in respect of obtaining access to
the stadium to do the final survey. Wood advised Jacobs that the requisite safety
requirements had to be complied with before access to the roof could be granted.
Wood referred Jacobs to Danie Erasmus, the stadium safety officer who would
give him more details of the requisite safety requirements.
7
[19] Masiyakurima confirmed that when they attended at the stadium security would
accompany the first defendant 's employees through the site and when the
attended at level 6 of the stadium. He also testified that there is a register which
must be completed upon entry at the stadium. The details of all persons who
were granted entry to the stadium were recorded in the register.
[20) Masiyakurima confirmed knowledge of a project plan which set out important
aspects such as details of the project, deadlines and milestones . Masiyakurima
confirmed that he was responsible for the design and to ensure that what was
reflected on paper was the same product which was installed. He also testified
that all the teams relied on him in respect of what to do and when to do it.
(21) Masiyakurima was on site when he received a call on 18 November 2015. He
immediately went gridline 50 on level 6 at the stadium where he encountered a
big white man who was very upset as a result of the damage he discovered . As
Masiyakurima occupied a junior position, he called his manager who notified the
first defendant to send a representative to attend on the scene. Masiyakurima
testified that there were representatives from the plaintiff, the second defendant
and other teams at the scene, including Bidvest and Carline.
[22] Masiyakurima was taken to a note dated 19 November 2015 which was penned
by Shiraz Moosa in his capacity as head of Safety and Security, Cape Town
Stadium. This note recorded that it was alleged that the first defendant was the
only contractor working at gridline 50 on level 6 on 18 November 2015 and that it
appeared that a metal panel from level 6 may have caused the damage to the
facade; that this panel was removed at some stage by the first defendant; and
that it may not have been secured sufficiently .
8
[23] Masiyakurima compiled a report which recorded that on 18 November 2015 the
stadium management stated that the damage was caused by the second
defendant contractors as they worked on location. The report contained the
second defendant's denial that they were responsible for the damage.
Masiyakurima's report concluded that there was no conclusive proof in respect of
who was responsible for the damage.
[24] After presenting the evidence of Masiyakurima, the second defendant closed its
case.
[25] Thereafter, the plaintiff called John Wood ('Wood') who testified that he was
employed by the plaintiff and that he was so employed during 2015 when he was
responsible for internal infrastructure. Wood confirmed that the plaintiff gave the
first defendant permission to enter the stadium.
[26] Wood testified that he was aware that there was a theory that a cherry picker
under the control of Bidvest was responsible for the damage8. Under cross
examination by counsel for the first defendant, Wood conceded that it was never
his view that Bidvest and the cherry picker was responsible for the damage
caused and the consequent loss.
[27] Wood unconvincingly testified that he would not know whether the plaintiff
investigates the loss of an asset in writing or only does so verbally. He went on
to testify that he cannot recall seeing anything or any report which recorded that
Bidvest and a cherry picker were responsible for the damage caused. He
testified that as far as he knew, no one placed any credibility in the theory that
Bidvest and the cherry picker caused the damage.
8 The cherry picker was apparently used by Bidvest to clean the stadium.
9
[28] Wood conceded that there one of four entities which could be liable for the
damage and that he held a me~ting with representatives of all four entities on the
18th or November 2015.
[29] Wood testified that he had not seen anything which changed between 18
November 2015 and 21 November 2015 and that he was not sure that anything
had changed during this time.
[30] Wood conceded that it would be easy to determine which party was at the
stadium on a particular day. Although it was a reasonable question to ask which
contractor removed the panel, Wood did not pose this question. Similarly, it was
a reasonable question to ask which contractor replaced the panel but he did not
do so. Wood also failed to ask who was responsible for supervising the work on
level 6.
[31] When it was put to Wood that any suspicion he had would have been alleviated
by asking the above three questions, he did not deny it but responded with a
'perhaps'. He further testified that Mr Van Rensburg would be the person who
dealt with those kind of issues.
[32] When it was put to Wood that he wanted conclusive proof of who was to blame
for the damage before instituting the claim, he acknowledged that the plaintiff had
wanted to know who was responsible for the damage.
[33] The next witness to testify was Andre Van Greunen ('Van Greunen') who was
the plaintiff's attorney at the time of instituting the action proceedings.
[34] Van Greunen testified that he authored the letter addressed to the Sheriff of the
High Court, Bellville ('the Sheriff') dated 9 November 2018. This letter
requested that the summons with the particulars of claim be served by no later
10
than 18 November 20189. Van Greunen testified that he made this request out of
an abundance of caution as he knew that the plaintiff discovered the damage on
the 18th 01 November 2015 and he wanted to prevent any possible argument on
prescription . He emphasized that the plaintiff did not know who caused the
damages on 18 November 2015.
[35] On 7 January 2019 Van Greunen directed further correspondence to the Sheriff
because he failed to comply with the request to serve the summons with the
particulars of claim on the first and second defendants timeously.10 This letter
stated inter alia the following:
'2. You were informed in writing that service must be effected on or before 18
November 2018 as there may be issues of prescription should it be served later'
and
'6. This letter serves to inform you that should our client's claim be dismissed
on the basis that it has prescribed, our client will hold your office responsible for
any losses suffered as a result thereof Please be advised that our client is
claiming the amount of R909, 900.00 from the defendants . That is also the
amount that our client will seek to recover from your office should it be required.
If you are insured for claims of these nature, we would suggest that you advise
your insurers accordingly. '
[36] Van Greunen testified that they had consulted with people who may be able to
shed light on the issues but that no-one knew who caused the damages.
However, it was unclear whether the second and third defendants were
appointed to the project as sub-contractors to the first defendant or as
independent contractors .
9 Page 58 of the plaintiffs bundle
10 Page 61 of the plaintiffs bundle
11
(37] In an email dated 5 November 2018, Van Greunen inquired from Stefanus
Landsberg of the second defendant about the capacity in which the third
defendant was appointed to the stadium project ·and whether this was in the
capacity of a sub-contractor .
[38] This inquiry was made almost three years after the damage was discovered.
During the presentation of the plaintiffs case there was no explanation why this
inquiry was not done sooner.
[39] It was put to Van Greunen that the meeting held on the day of the incident
resulted in the plaintiff having sufficient information to institute its action. In
response, Van Greunen testified that had no knowledge of the identities of the
persons with whom Wood met. Van Greunen was unable to comment and/or
respond when it was put to him that on 18 November 2015 the plaintiff had
sufficient information and/facts to institute proceedings against the defendants.
Alternatively , it could obtain sufficient knowledge by making a simple inquiry of
asking who do you work for.
[40] It was also put to Van Greunen that in accordance with section 12(3) of the
Prescription Act, prescription starts to run when a plaintiff has sufficient
knowledge to commence proceedings, it need not have perfect know1edge
necessary to establish its case.
(41] The plaintiff closed its case after Wood'.s testimony .
The parties' arguments
[42] The first defendant argued that the plaintiffs claim against it was a contractual
one in terms whereof the first defendant accepted a species of strict liability for
the conduct of the second to the fourth defendants.
12
[43] The first defendant ~rgued that on the plaintiffs pleaded case it was possessed
of sufficient facts to determine the identity of the debtor in relation to the sum
claimed and that it was irrelevant how the loss was caused as the first defendant
would irrespective thereof be liable, therefore.
[44] Further, the commencement of the running of prescription is not delayed until the
claimant has knowledge of all the facts necessary to establish its case. On the
contrary, the running of prescription commences when a claimant has all the
facts necessary to establish the cause of action.
[45] The second defendant argued that this was a case of the plaintiff seeking all the
facts, evidence and conclusions before it issued summons. However, this is not
required by law which requires only the minimum sufficient facts in law. These
facts were within the plaintiffs knowledge on 18 November 2015 as it knew
everything it needed to know to issue summons. Therefore , prescription started
running on 18 November 2015.
[46] The second defendant argued that the plaintiffs case did not revolve around the
identity of the wrongdoer
[47] Furthermore , it was argued that if the plaintiff asked three questions, namely
(i)who did (ii)what (iii)when, it would have obtained the requisite knowledge on 18
November 2015 needed to institute proceedings. In other words, had the plaintiff
acted reasonable , it would have obtained the information it required to issue
summons . The plaintiff failed to act reasonably to acquire the information it
thought necessary to institute proceedings.
[48] In the circumstances , the second defendant argued that the plaintiffs claim
against it had prescribed .
13
[49] The plaintiff averred that prescription did not begin to run by virtue of section
12(3) and that prescription did not start to run on 18 November 2015 as it did not
know which party caused the damage at that stage.
The law
[50] It is common cause that the period of prescription for the amount claimed by the
plaintiff is three years.
[51] Prescription begins to run against a party when it has the minimum facts
necessary to institute action. Consequently , the running of prescription is not
postponed until such time that a claimant learns of the full extent of its legal right
nor until such time that a claimant has all the evidence which it requires to
comfortab ly establish its case.11
[52] This court has cited with approval the proposition that time starts to run against a
creditor when it has 'the minimum facts that are necessary to institute action' and
that the running of prescription is not postponed until the creditor 'becomes
aware of the full extent of its legal rights'.
[53) It has been held that a debt is due when the entire set of facts which the creditor
must prove in order to succeed with his or her claim against the debtor is in place
or, in other words, when everything has happened which would entitle the
creditor to institute action and to pursue his or her claim. This does not include
the legal conclusions which a litigant seeks to draw from the facts.12
[54] Prescription would start running against a party when there is either know1edge
or awareness of the facts from which the debt arises as well as the identity of the
11 Minister of Finance and Others v Gore NO 2007 (1) SA 111 (SCA) at para [17); See also President of the
Republic of South Africa and Another v Tembani and Others 2025 (2) SA 371 (CC) at para [86]
12 Truter and another v Deysel 2006 (4) SA 168 (SCA) at paras [16] and [17]; Le Roux and AnothervJoha nnes G
Coet=ee & Seuns and Another
14
debtor. A party would be deemed to have knowledg e of these facts if he/she
could have acquired it by exercising reasonable care.13
(55] Whether or not it coulQ be said that a party failed to exercise reasonable care
would depend on a number of factors and consideration of all the circumstances
relevant to the claimant's conduct.14
(56] The inquiry into whether a claimant may be deemed to have acquired the
requisite knowledge and whether he/she exercised reasonable care is an
objective, and not a subjective · inquiry. Therefore, the claimant's conduct is
tested by weighing it against the steps which a reasonable person in his or her
position would have taken to acquire knowledge the requisite minimum facts to
enable him/her to institute his/her claim timeously .15
Discussion
(i) The plaintiff's case against the first defendant
[57] I deal firstly with the plaintiffs case against the first defendant.
[58] Counsel for the first defendant submitted that the plaintiff's pleaded case against
the first defendant is based on strict liability akin to vicarious liability. This is an
accurate description of the plaintiff's pleaded case against the first defendant.
[59] The facts which are set out in the plaintiffs particulars of claim are the same facts
which he had at his disposal on 18 Novemb~r 2015. Thus, on 18 November
2015, the plaintiff had the m_inim.um fact~ it needed to institute proceedings
against the first defendant.
13 Le Roux and Another v Johannes G Coetzee & Seuns and Another 2024 (4) SA I (CC)
14 Brand v Williams 1988 (3) SA 908 (C) quoted with approval in le Roux and Another v Johannes G Coetzee &
Seuns and.Another
15 Leketi v Tladi NO 2010 JDR 0329 (SCA)
15
[60] Therefore, prescription in respect of .the plaintiffs claim against the first
defendant started running on 18 November 2015. Consequently , as the
summons instituting proceedings was served on the first defendant after 18
November 2018 being three years after the claim arose, the plaintiffs claim
against the first defendant has prescribed.
(ii) The plaintiff's case against the second defendant
[61] I turn now to the plaintiffs claim against the second defendant.
(62] The court is told that the plaintiff did not know the identity of the party responsible
for the damage to gridline 50 on level 6 on 18 November 2015. The court is not
told when the plaintiff discovered the identity of the party responsible for the
damage to gridline 50 on level.6. .
(63] The evidence has shown that the plaintiff could have ascertained the minimum
facts it needed to institute proceedings by directing three simple questions to the
,.
parties present at the meeting held on 18 November 2015 on the site. The
plaintiff had simply to ask, 'who did what when'. There was no reasonable
explanation for the failure to do·so: Similarly; there was no explanation why the
plaintiff, through its attorney, only made inquiries in respect of the capacity in
which the third defendant was appointed to the installation project, almost three
years after the damage was discover-ed,
[64] Therefore, it cannot be said that the plaintiff exercised reasonable care. Had the
plaintiff exercised reasonable care, it could have acquired the minimum facts it
needed to institute proceedings.
[65] Consequently , the plaintiff is deemed to have this knowledge on 18 November
2015. Therefore , the summons instituting the plaintiffs claim had to be served
16
on the s·econd plaintiff by 18 November 2018. It was not. Consequently, the
plaintiff's claim against the second defendant has prescribed.
[66] Based on the papers filed on record and the evidence presented, it is evident that
nothing changed in the plairttiff s knowledge pertaining to the incident from 18
November 2015 and 21 November 2015.
[67] The plaintiff instituted proceedings against the defendants with the same total of
knowledge it had on 18 November 2015. This is conclusive of the fact that the
plaintiff was aware of I had knowledge of the facts it needed to institute its claim
against the defendants were within its knowledge on 18 November 2015.
Therefore , prescription started to run on 18 November 2015, which meant that
the plaintiff's summons had to be served on the defendants by 18 November
2018. . ... ••, ' . '
[68] It is clear from the plaintiffs pleaded case that it still does not know which . :
defendant was responsible for causing the damage. Thus, it instituted its claim in
the form of a main claim against the first defendant with alternative claims
against the other defendants. The lack of knowledge pertaining to the identity of
the actual wrongdoer who was responsible for the damage was, therefore, clearly
not a requisite factor necessary for the institution of the plaintiffs claim.
[69] It is clear from Van Greunen's evidence and his correspondence directed to the
Sheriff that the plaintiff knew that the summons had to be served by 18
November 2018, failing which its claim would prescribe. His evidence that he
wanted the sheriff to serve the summons before the 18th of November 2018 out of
abundance of caution and to prevent the invocation of prescription was
unconvincing and improbable.
17
[70] Notwithstanding that the plaintiff knew that its claim had prescribed and the
warning by the second plaintiff, it proceeded with instituting its claim against the
second defendant.
[71] In the circumstances , the second defendant 's pray for punitive costs are
reasonable.
Orders
[72] Therefore , I make the following orders:
(i) the first defendant's special plea of prescription is upheld as the plaintiffs
claim against the first defendant has prescribed ;
(ii) the plaintiffs claim against the first defend.ant is dismissed with costs,
which cost shall be on scale, B; : .
(iii) the second defendant's special plea of prescription is upheld as the
plaintiffs claim against the second defendant has prescribed ;
(iv) the plaintiffs claim against the second defendant is dismissed with costs,
which costs shall be on an attorney -client scale on scale B.
S~ GERS, J
\O. e,. 2.0 2.S