uu DIC
yY Jf
Ky DY
z <
Corse
IN THE HIGH COURT OF SOUTH AFRICA
KWAZULU-NATAL DIVISION, PIETERMARITZBURG
Appeal Case No: AR373/2023
In the matter between:
JP CHETTY APPELLANT
and
GONASAGREE PILLAY RESPONDENT
a
ORDER
a
On appeal from: Magistrates’ Court (Chatsworth)
1. The appeal succeeds with costs.
2 The order of the court a quo is set aside and replaced with the following order:
‘The special plea of prescription is dismissed with costs.’
3: The matter is remitted to the court a quo for the determination of the further and
outstanding issues at trial.
NN
JUDGMENT
ee a
Ngqanda AJ (Chetty J concurring):
2
Introduction
[1] The appellant, a businessman, is the brother of the respondent. The respondent
was married in community of property to the late Mr K Pillay, who passed away on 25
November 2009.'
[2] During the lifetime of Mr K Pillay, the appellant had successfully obtained two
default judgments against him and the respondent jointly and severally and another
judgment by default solely against Mr K Pillay. The judgments were obtained over
various periods and for different amounts under three case numbers as follows:
(a) Case number 57362/2006: Judgment for R6 912, obtained against Mr K Pillay
on 3 April 2007;
(b) Case number 2319/2007: Judgment for R30 000 plus costs of R700.92,
obtained against Mr K Pillay and the respondent on 29 January 2008; and
(c) Case number 3856/2008: Judgment for R23 846.69 plus costs of R716.88,
obtained against Mr K Pillay and the respondent on 13 October 2008.
[3] Consequently, and as a result of the respondent and her husband being
married in community of property, the respondent is jointly and severally liable? for the
payment of the judgments obtained by default by the appellant.®
[4] Following the rejection of the appellant's claim lodged with the estate of Mr K
Pillay for payment of the amounts reflected under the judgments, the appellant, on 10
April 2017, instituted an action in the court a quo, in which the respondent was cited
in both her personal capacity and as the executrix of her husband’s estate for payment
of the amounts in respect of the three judgments.
1 The issues of the respondent being married in community of property to Mr K Pillay and his date of
passing, being 25 November 2009, were conceded and accepted by the parties at the hearing of the
matter in the court a quo on 19 September 2022 (see pages 66 and 68 of the record).
2 Section 17(5) of the Matrimonial Property Act 88 of 1984 permits, where a debt is recoverable from a
joint estate, for the spouse who incurred the debt or both spouses to be jointly sued and where a debt
has been incurred for necessaries for the joint household, for the spouses to be sued jointly and
severally.
3 The appellant, in his particulars of claim, claims a total of R63 351.13 against the respondent in her
personal capacity, as well as in her capacity as the executrix, jointly and severally, together with interest
at 15.5%.
3
[5] The respondent, in her plea dated 27 August 2019, raised two defences,
namely a special plea of prescription* and a special plea of lis pendens. The special
plea of lis pendens was eventually abandoned at the hearing of the matter.
[6] At the commencement of the trial on 19 September 2022, the court a quo heard
argument in relation to the special plea as raised by the respondent. On 14 December
2022, the court a quo upheld the defence of prescription and granted costs on an
attorney and client scale, including costs of counsel against the appellant.
[7] The current appeal is against that the whole order of the court a quo.
Issues on appeal
[8] The appeal concerns itself with four aspects, namely:
(a) whether the three judgments obtained have prescribed in terms of section 11(a)
of the Prescription Act 68 of 1969 (the Prescription Act);
(b) whether the appellant is entitled to judgment against the respondent in her
personal capacity as well as in her capacity as the executrix of the estate of her
husband, as the indebtedness was not admitted in the estate by the respondent;
(c) whether judgment ought to have been entered in favour of the appellant for the
amount of R6 912, being the amount granted under case number 57362/2006 against
Mr K Pillay; and
(d) | whether the costs on an attorney and client scale which were awarded, were
judicially considered.
Analysis
[9] It is important to consider the reasoning of the court a quo in arriving at its
decision to uphold the special plea of prescription. The court a quo provided the
following analysis for its decision:
7 The special plea of prescription was not adequately pleaded in the respondent's plea. However, the
basis for the special plea became apparent during the hearing of the matter in the court a quo. The
ground relied upon for raising the defence of prescription was that Mr K Pillay had died on 25 November
2009 and that in terms of section 13(1)(i) of the Prescription Act 68 of 1969, the period of prescription
is extended for one year where the claim relates to the debt filed against a deceased's estate. Therefore,
it was contended that summons ought to have been issued and served by 24 November 2013. The
appellant's summons was served in April 2017 and consequently the claim had prescribed.