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[2019] ZASCA 8
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Cook v Morrison and Another (1319/2017) [2019] ZASCA 8; [2019] 3 All SA 673 (SCA); 2019 (5) SA 51 (SCA) (8 March 2019)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1319/2017
In
the matter between
GEOFFREY
COOK
APPLICANT
and
MURRAY
MORRISON
FIRST
RESPONDENT
SEABUSH
INVESTMENTS (PTY) LTD
SECOND
RESPONDENT
Neutral
citation:
Cook v
Morrison
(1319/2017)
[2019] ZASCA 08
(8 March 2019)
Coram:
Lewis, Leach, Saldulker and
Mathopo JJA and Rogers AJA
Heard
:
21 February 2019
Delivered:
8 March 2019
Summary:
Appeal –
application for special leave – dismissal of –
reconsideration in terms of 17(2)
(f)
of Superior Courts Act – such to be considered by ‘court’
constituted in terms of s 13(1), not by two judges
of appeal who
initially dismissed it.
Appeal
– application for special leave – need for special
circumstances – applicant not having reasonable prospects
of
success – even if he had such, no special circumstances
justifying grant of special leave.
Prescription
– meaning of ‘debt’ – such includes
obligation by contracting party to make restitution of
money or
property following cancellation for repudiation.
Prescription
–
semble
– if prescription adjudicated on
assumption that plaintiff’s pleaded allegations correct,
permissible to decide matter
with reference to plaintiff’s
primary factual allegations, disregarding alternatives.
Prescription
– s 13(1)
(d)
of Prescription Act – relationship between co-shareholders in
company not one of ‘partnership’.
ORDER
Application
for reconsideration of an order dismissing an application for special
leave to appeal from:
Gauteng
Local Division of the High Court, Johannesburg (Meyer,
Kathree-Setiloane and Twala JJ) sitting as a full court on appeal
from a decision of the Gauteng Local Division of the High Court,
Johannesburg (Moshidi J) sitting as a court of first instance.
The application for special leave
to appeal is dismissed with costs, including the costs of two counsel
where employed.
JUDGMENT
Lewis
JA (Leach, Saldulker and Mathopo JJA and Rogers AJA concurring)
[1] The
Superior Courts Act 10 of
2013
introduced a new remedy for applicants for leave to appeal who
are dissatisfied with the outcome of their applications.
Section
17(2)
(f)
provides that the decision of the majority of the
judges considering an application for leave to appeal shall be final.
But there
is a proviso to the subsection that called for
interpretation at the hearing of this application:
‘
Provided
that the President of the Supreme Court of Appeal may in exceptional
circumstances, whether of his or her own accord or
on application
filed within one month of the decision,
refer
the decision to the court for reconsideration
and if necessary, variation.’
(My
emphasis.)
[2] The President of the Court,
Maya P, referred the application dealt with below, to a court of five
judges for oral argument on
reconsideration. She directed, on 30
January 2018, that the applicant was to file six copies of the record
and that the parties
were to comply ‘with all the remaining
rules relating to the prosecution of an appeal’. Members of the
court and the
applicant were under the impression that the merits of
the appeal were to be argued at the same time as the argument for
reconsideration.
[3]
Counsel for the respondent, however, drew our attention to the
decision of Maya P in
Hendrik
Hough v
Sisilana
&
others
[2018]
ZASCA 4.
Maya P dismissed the application for reconsideration under
s
17(2)
(f)
in that matter and gave reasons for her order. In discussing the
proviso to the section she said (para 2):
‘
It
is readily apparent from the ordinary wording of these provisions
that the relief provided relates only to the dismissal of an
application for leave to appeal by the Supreme Court of Appeal. Thus
the President of this Court may only direct the
appeal
judges who considered the application to revisit their decision
and no more.’
(My
emphasis.)
[4] The respondents in this
matter refer to Maya P’s reasons for decision as authority for
the proposition that the court
constituted to hear the application
for reconsideration had no jurisdiction. The proposition is not borne
out by the wording of
the proviso to
s 17(2)
(f)
, which
refers to ‘the court’. That expression means a court
constituted in terms of
s 13(1)
of the Act. The proposition is
also not supported by the current practice that the issue of
reconsideration is heard by a court
properly constituted and not only
the two judges who consider the application in the first instance.
And it is contrary to the
order issued by Maya P in this matter.
[5] Accordingly, in so far as
Hough
suggests that only the two or more judges who refused
the application in chambers may reconsider their decision, it must be
incorrect.
It really would make no sense at all for the same judges
to reconsider their own decision. Counsel for the parties agreed that
it would be best for the court, as it had been constituted for the
oral hearing, to consider whether special leave should have been
granted. The court did that and judgment on the merits of the
application follows.
_____________
C H Lewis
Judge of Appeal
Rogers
AJA (Lewis, Leach, Saldulker and Mathopo JJA concurring)
[6]
The applicant, Mr Geoffrey Cook, was the plaintiff in an action
instituted in the Gauteng Local Division of the High Court,
Johannesburg. The respondents, Mr Murray Morrison and Seabush
Investments (Pty) Ltd (Seabush), were the first and fifth defendants.
Other defendants were cited but no relief was sought against them. I
shall where appropriate refer to Morrison and Seabush collectively
as
the defendants.
[7]
The defendants filed a special plea of prescription. They applied in
terms of
rule 33(4)
for the special plea to be determined first. This
application and the special plea came before Moshidi J who granted
the separation
and upheld the special plea. With his leave Cook
appealed to a full court. The full court (per Meyer J,
Kathree-Setiloane and Twala
JJ concurring) dismissed the appeal. Cook
applied to this court for special leave to appeal. Two judges of
appeal dismissed the
application. Still dissatisfied, Cook applied to
the President in terms of
s17(2)
(f)
of the
Superior Courts Act 10 of 2013
for a reconsideration of the
dismissal. The President made such an order. Although the President’s
order did not explicitly
state that the parties must be ready to
argue the appeal if special leave were granted, the order directed
Cook to file six copies
of the full record. Both sides agreed that if
we granted special leave we should simultaneously dispose of the
appeal.
[8]
The existence of reasonable prospects of success is a necessary but
insufficient precondition for the granting of special leave.
Something more, by way of special circumstances, is needed. These may
include that the appeal raises a substantial point of law;
or that
the prospects of success are so strong that a refusal of leave would
result in a manifest denial of justice; or that the
matter is of very
great importance to the parties or to the public. This is not a
closed list (
Westinghouse
Brake & Equipment (Pty) Ltd v
Bilger
Engineering (Pty) Ltd
1986
(2) SA 555
(A) at 564H-565E;
Director
of Public Prosecutions: Gauteng Division, Pretoria v Moabi
[2017]
ZASCA 85
;
2017 (2) SACR 384
(SCA) para 21).
[9]
The special plea was argued on the assumption that Cook’s
allegations in his particulars of claim were correct. His pleaded
case is in summary the following:
(i) During February 2003 Cook,
Morrison and three other individuals (the second, third and fourth
defendants, to whom I shall refer
collectively as the Fox parties)
concluded what the particulars of claim described as an oral joint
venture agreement to create
an ecotourism reserve to be known as the
Sibuya Game Reserve. Over the period 2003 to 2007 various portions of
adjacent land became
part of the reserve. Two portions were owned by
the Fox parties; a third portion by the seventh defendant, Hesber
Impala (Pty)
Ltd (Hesber), a company controlled by the joint
venturers; and a fourth portion, added in 2007, by Seabush. The
ecotourism business
was owned by Sibuya Game Reserve & Lodge
(Pty) Ltd (SGRL) while the game and various vehicles and equipment
pertaining to the
game farming belonged to Salisbury Trading CC
(Salisbury).
(ii) In May 2008 the parties
concluded written heads of agreement (heads) which were to be
embodied in a formal contract. In terms
of the heads the Fox parties
were to sell their 50 per cent shareholding in SGRL to Cook and
Morrison while the latter were to
sell to the Fox parties their 50
per cent share of the game and of the vehicles and equipment
belonging to Salisbury. Cook and
Morrison had to pay the net balance
owing to the Fox parties on these transactions by 1 June 2008.
(iii) In terms of the heads Cook
and Morrison would have the sole right to operate the ecotourism
camps in the reserve for 20 years
against payment to the Fox parties
of a monthly fee. This was in recognition of the fact that some of
the properties making up
the reserve belonged to the Fox parties and
to Hesber.
(iv) This agreement was concluded
so that the Fox parties could devote themselves wholly to game
farming while Cook and Morrison
could devote themselves wholly to the
ecotourism business.
(v) Although a formal contract
was not concluded, effect was given to the heads so that by 2010 Cook
and Morrison owned all the
shares in SGRL in equal shares while the
Fox parties owned all the shares in Salisbury. Cook and Morrison also
owned Seabush in
equal shares. They each held 25 per cent of the
shares in Hesber, the remaining 50 per cent of Hesber being held by
the Fox parties.
(vi) In August 2010 Cook and
Morrison concluded an oral agreement for Cook’s exit from
Seabush and SGRL (the exit agreement).
The express terms were that
Cook would sell his shares and claims in Seabush and SGRL to Morrison
for one rand; would resign as
a director of both companies; would
settle a debt which Seabush owed Investec; and would pay Morrison
R900 000. In return
Seabush would sell to Cook the part of its
land on which the ‘Top House’ was situated (the Top House
land). Morrison
was to provide Cook with a written contract for the
sale of the Top House land within two days so that Cook could create
the subdivision
and have it transferred to himself. These terms were
subject to Morrison’s being able to sell his shares in SGRL to
the Fox
parties on acceptable terms.
(vii) It was an implied or tacit
term of the exit agreement that if the Top House land could not be
subdivided and transferred to
Cook because of a failure by Morrison
to furnish him with a written contract of sale, Morrison would be
obliged to make restitution
of whatever performance he had received.
(viii) Cook fulfilled his side of
the exit agreement by transferring his shares in Seabush and SGRL to
Morrison; resigning as a
director of those companies; and paying the
amount required to settle the Investec debt. (The particulars did not
allege that Cook
paid Morrison the amount of R900 000.)
(ix) Morrison in turn reached
agreement with the Fox parties for the sale of his shares in SGRL
to them.
(x) However, no written contract
for the sale of the Top House land to Cook was concluded because
Morrison ‘insisted on inserting
additional restrictive terms
that were unacceptable to the plaintiff’. On 8 September 2010
Morrison ‘impermissibly’
sought to ‘sever and
cancel part of’ the exit agreement with the result that, while
retaining the benefits of Cook’s
performance, he refused to
furnish to Cook a written contract for the sale of the Top House
land.
(xi) Morrison’s conduct
amounted to a breach or repudiation of the exit agreement.
[10]
With these factual allegations as prelude, Cook made the following
concluding allegations:
(i) On 29 September 2010 he
accepted Morrison’s breach or repudiation of the exit agreement
and cancelled that agreement.
Alternatively, he gave notice in his
particulars of claim that he was cancelling the agreement.
(ii) He suffered damages because
Morrison did not restore him to his former position. If the damages
could not be agreed, he was
entitled to a statement and debatement of
account because he was a shareholder of Seabush and SGRL and thus
entitled to the information
and because he was a ‘partner in
the broader joint venture known as Sibuya Game Reserve’.
(iii) The reasonable market
values of Seabush, SGRL and the Top House land as at 2 August 2010
were R12.6 million, R18 million and
R4 million respectively.
(iv) In the alternative to his
claim for damages, Cook asserted an equivalent right on the basis of
unjust enrichment.
[11]
The prayers for relief (excluding those for interest and costs) were
in summary for orders as follows:
(i) that Morrison deliver to Cook
50 per cent of the shares in Seabush and SGRL and reinstate him as a
director of those companies,
and that Cook be declared to be the
lawful owner of a 50 per cent shareholding in the companies and that
their share registers
be rectified accordingly;
(ii) alternatively, and if such
restitution were impossible or impractical, that Morrison and/or
Seabush pay Cook R6.3 million in
respect of Seabush and R9 million in
respect of SGRL or that they produce statements of account to be
debated so as to establish
the value of a half-share of these
companies;
(iii) that Morrison and/or
Seabush pay Cook R1 161 984 (the Investec debt he settled);
(iv) in the alternative to the
above claims, that Morrison pay Cook R6.3 million, R9 million and
R1 161 984 (presumably
on the basis of unjust enrichment).
[12]
Cook issued summons in April 2014. The special plea alleged that the
debts enforced in the summons prescribed three years after
the
alleged cancellation of the exit agreement on 29 September 2010. Cook
did not deliver a replication.
[13]
In the courts below and in this court three points were advanced for
Cook: (i) that his claims were not matched by ‘debts’
owed by the defendants within the meaning of the Prescription Act 68
of 1969 (the Act); (ii) that, if the first point were
rejected,
the completion of prescription was delayed in terms of s 13(1)
(d)
of the Act because the relationship between the parties was one of
partnership; (iii) that the special plea should not have
been
adjudicated separately because evidence was needed to determine the
date on which the exit agreement was cancelled. The courts
below
rejected these contentions and upheld the special plea.
First
point – no ‘debts’
[14]
Cook’s counsel submitted that Morrison’s obligation to
restore half of the shares in Seabush and SGR to him was
not a ‘debt’
within the meaning of the
Prescription Act as
that term was explained
in
Makate v Vodacom Ltd
[2016] ZACC 13
;
2016 (4) SA 121
(CC).
In
Makate
the Constitutional Court held that Vodacom’s
contractual obligation to commence bona fide negotiations was not a
‘debt’
and that, to the extent that
Desai NO v Desai &
others
[1995] ZASCA 113
;
1996 (1) SA 141
(A) gave ‘debt’ a wide enough
meaning to encompass such an obligation, it was wrongly decided. Both
the majority and
minority judgments (paras 85 and 187) made reference
to this court’s decision in
Electricity Supply Commission v
Stewarts and Lloyds of SA (Pty) Ltd
1981 (3) SA 340
(A) (
Escom
),
where ‘debt’ was said to have the following dictionary
meaning:
‘
1. Something
owed or due: something (as money, goods or service) which one person
is under an obligation to pay or render to another.
2. A liability or
obligation to pay or render something; the condition of being so
obligated.’
Because
Vodacom’s duty to commence negotiations did not answer this
description, it was not a ‘debt’.
[15]
Makate
did
not overrule
Escom
,
and this court has continued to apply the
Escom
test (see, eg,
Bondev
Midrand (Pty) Limited v Puling and Another, Bondev Midrand (Pty)
Limited v
Ramokgopa
[2017] ZASCA 141
;
2017 (6) SA 373
(SCA) para 21;
Brompton
Court Body Corporate v Khumalo
[2018] ZASCA 27
;
2018 (3) SA 347
(SCA) para 11.) Morrison’s
alleged obligation to deliver shares in Seabush and SGRL to Cook fits
comfortably within the
Escom
definition of
‘something (as money, goods or service) which one person is
under an obligation to pay or render to another’.
When a
contract is cancelled because of repudiation, the obligation to make
restitution is a personal one resting on the indebted
party to pay
money or deliver assets which he received as performance under the
contract.
[16]
Cook’s counsel submitted that the remedy was not one arising
from the contract but rather a duty of restitution imposed
by the
law. It is unnecessary to engage with this semantic distinction. The
simple point is that the cancellation gave rise to
a personal
obligation to pay or deliver. If counsel’s argument were
correct, it would mean that a personal obligation to
pay damages
following cancellation of a contract, or upon the commission of a
delict, is not a ‘debt’, an untenable
proposition.
[17]
Cook’s counsel referred us to
Absa
Bank Ltd v Keet
[2015]
ZASCA 81
;
2015 (4) SA 474
(SCA), where this court held that the right
of an owner to recover his property by the rei vindicatio is not
matched by a ‘debt’
owed by the person sued. The
difference between that case and the present one is that in a rei
vindicatio the claimant does not
seek to enforce a personal
obligation owed by the possessor. He seeks to vindicate an asset of
which he is the owner. His right
to recover the asset from whomsoever
is in possession of it is an incident of his real right of ownership,
not the result of a
personal obligation owed to him by the possessor
(see also
eThekwini
Municipality v
Mounthaven
(Pty) Ltd
[2017]
ZASCA 129
;
2018 (1) SA 384
(SCA) paras 11-16). In the present case,
by contrast, Cook’s allegations disclose that pursuant to the
exit agreement he
transferred the shares to Morrison who thereupon
became their owner. Morrison’s obligation to deliver them back
to Cook was
a personal obligation resting on him as the counterparty
to a contract which Cook had lawfully cancelled. The same applies to
the
obligations allegedly resting on Morrison to pay damages or to
pay money by virtue of unjustified enrichment.
Second
point - partnership
[18]
In regard to s 13(1)
(d)
of the Act, Cook did not file a
replication alleging that completion of prescription was delayed by
virtue of a relationship of
partnership between himself and the
defendants. Although the onus rested on the defendants to establish
when prescription began
to run, the onus was on the plaintiff to
allege and prove that the completion of prescription was delayed
(
Naidoo NO & others v Naidoo & another
2010 (5) SA 514
(KZP) para 16 and authorities there cited).
[19]
I accept that a replication may be unnecessary where the facts giving
rise to the delay in completion of prescription are sufficiently
alleged in the creditor’s particulars of claim. That was not
the case here. Indeed, in the light of the allegations in his
particulars of claim I do not think Cook could have filed a
non-excipiable replication based on s 13(1)
(d)
. In order
for that provision to apply the relationship between the creditor and
debtor must be one of ‘partners’ and
the debt must be one
arising out of the ‘partnership relationship’. The words
‘partners’ and ‘partnership’
have their
ordinary common law meaning. The legal relationship of partnership
arises from a contract between two or more persons
by which each
agrees to make a contribution (whether in money, property or service)
to a venture to be carried on jointly by them
with a view to making a
profit and on the basis of sharing the profits and losses (
Lawsa
‘Partnership’ 2 ed vol 19 (replacement volume 2016)
paras 263-264).
[20]
Where persons agree to conduct a venture through a company and become
co-shareholders, the company is not a ‘partnership’
and
the shareholders are not ‘partners’. For some purposes –
for example in determining whether it is just and
equitable to wind
up a company – the courts have drawn on partnership principles,
sometimes describing the relationship between
the shareholders in a
small domestic company as one of ‘quasi-partnership’.
This does not mean, however, that in law
the shareholders are
partners, a point Lord Wilberforce was at pains to stress in his
seminal judgment in
Ebrahim v Westbourne Galleries Ltd
[1973]
AC 360
(HL) at 379H-380B (see also
Apco Africa (Pty) Ltd &
another v Apco Worldwide Inc
[2008] ZASCA 64
;
2008 (5) SA 615
(SCA) paras 17-18).
[21]
Cook’s pleaded allegations concerning the ‘joint venture
agreement’ concluded in February 2003 and implemented
over the
period 2003-2007 do not cover the essentialia of partnership. His
allegations are in fact irreconcilable with such essentialia.
He
alleges that the land comprising the reserve continued to belong to
the pre-existing registered owners; that the game, vehicles
and
equipment were owned by Salisbury; and the ecotourism business by
SGRL. The expenses and profits of the ecotourism business
were those
of SGRL. The expenses and profits of the game-farming business were
those of Salisbury. To the extent that there were
expenses and
profits from land ownership, they were incurred and made by the
individual land-owning companies. Cook, Morrison and
the Fox parties
might have benefited indirectly through dividends received as
shareholders in one or more of the companies but
there is no pleaded
arrangement in terms of which the companies and/or shareholders inter
se were to conduct a single venture in
which they would share profits
and losses.
[22]
The ‘joint venture’ was thus a mixture of relationships.
Save in relation to the land, the parties were associated
as
shareholders of companies. The particulars of claim make no
allegations regarding the relationship between SGRL, Salisbury and
the various persons who owned the portions of land making up the
reserve. Parties may cooperate with each other to enhance their
individual businesses. Such cooperation does not mean they are
partners.
[23]
Following the implementation of the heads in May 2008, Cook and
Morrison ceased to be associated with the Fox parties save
that each
continued to hold 25 per cent of Hesber. The relationship between
Cook and Morrison in relation to the ecotourism business
was as 50:50
shareholders of SGRL. In regard to the portion of land belonging to
Seabush, their relationship was again as 50:50
shareholders of that
company. SGRL had the right to operate the camps on land belonging to
or controlled by the Fox parties in
return for a monthly fee. That
was an ordinary contract for use between SGRL and the Fox parties.
[24]
Accordingly, when the exit agreement was concluded in August 2010 the
relationship between Cook and Morrison in connection
with the
business operated and property owned by SGRL and Seabush was one of
co-shareholding, not partnership. There was also no
partnership
between them and the Fox parties. The exit agreement was merely an
arrangement by which the plaintiff would dispose
of his shares in
SGRL and Seabush to Morrison and receive a subdivided portion of land
belonging to Seabush.
[25]
Cook thus failed to plead allegations disclosing the existence of a
partnership between himself and Morrison. In view of this
conclusion
it is unnecessary to decide whether an obligation arising from a
contract by which a partnership is terminated is a
debt arising ‘out
of the partnership relationship’ for purposes of s 13(1)
(d).
Third
point – date of cancellation
[26]
Cook’s counsel rightly conceded that if the first point were
unsound, prescription in respect of the ‘debts’
owed by
Morrison began to run from the date on which Cook elected to cancel
the exit agreement. If that date was 29 September 2010,
the rejection
of Cook’s second point would mean that the debts prescribed
about six months before summons was served. To
escape this conclusion
Cook’s counsel placed emphasis on the alternative allegation
that the exit agreement was only cancelled
when summons was issued.
Particularly since the defendants denied the cancellation of the
agreement, a court could only determine
the commencement date of
prescription after hearing evidence and deciding when the agreement
was cancelled.
[27]
Regarding the defendant’s denial, it is right to add that the
defendants amplified their denial by pleading that Cook
was not
entitled to cancel the agreement, Cook himself being the person who
was in breach of his obligations. In the light of this
amplification,
the defendants were not necessarily disputing that Cook had
purported
to cancel the exit agreement on 29 September 2010 but nothing turns
on this.
[28]
In the present case the defendants, who denied the existence of any
valid claims on the merits, asked the trial court to adjudicate
the
special plea of prescription on the assumption that Cook’s
pleaded facts were correct. Where inconsistent facts are pleaded
in
the alternative, both facts cannot simultaneously be assumed to be
correct. Although Cook’s counsel resisted the characterisation
of the relevant paragraph of the particulars of claim as comprising a
primary and an alternative allegation, the long-standing
conventions
of pleading would so regard it. The first allegation represents the
pleader’s primary case, the alternative a
fallback position if
he fails on the primary case. If the other party admits the primary
allegation, that disposes of the issue
– the alternative falls
away. An admission of the alternative allegation, by contrast, will
not do so.
[29]
There is thus much to be said for the proposition that when the
prescription of the alleged debts came to be tested on the
assumption
that Cook’s allegations were correct, the trial court and full
court were entitled, in the absence of an abandonment
by Cook of his
primary case, to confine their attention to that case and to
disregard the alternative. The defendants were effectively
saying:
‘Although we deny the merits of your claims altogether, we are
willing to admit, for purposes of prescription only,
your primary
case.’ If the defendants had not advanced a defence on the
merits, had admitted Cook’s primary case and
pleaded only a
defence of prescription, Cook could not have escaped the consequences
of his primary case by pointing to the existence
of an alternative. I
do not see why it should be different where a plaintiff’s
primary case is assumed to be true for purposes
of prescription.
[30]
It is, however, unnecessary to express a final opinion on this point.
Even if it were not strictly correct to disregard the
alternative, it
by no means follows that an injustice has been done to Cook. Here I
digress to considerations relating to special
circumstances rather
than prospects of success. First, Cook has not alleged in his
application for special leave that he did not
cancel the agreement on
29 September 2010 and that he has thus unjustly been denied the
opportunity to run a case based on a cancellation
as at April 2014.
Second, an acceptance by Cook that he only cancelled the agreement in
April 2014 would have presented him with
significant difficulties.
Although the statement that a party must exercise an election to
cancel within a reasonable time may
not be technically accurate, a
lengthy delay in exercising the election may nonetheless, and usually
will, lead to a conclusion
that the party waived the right, ie
elected not to cancel (
Mahabeer
v Sharma NO & another
1985
(3) SA 729
(A) at 736D-I). In the present case, Cook would need to
explain a delay of three and a half years. Third, it is doubtful that
a
party may cancel an agreement for non-performance of obligations
which have prescribed by the time the election is exercised. A
cancellation as at April 2014 might thus simply attract a different
plea of prescription, namely that the obligations, the
non-performance
of which constituted the breach or repudiation, had
prescribed before Cook elected to cancel.
[31]
To sum up. There are no reasonable prospects of success in an appeal
challenging the finding that, on Cook’s primary
case, the debts
sought to be enforced prescribed before summons was served. While
there is an argument to be made that the courts
below erred in not
taking into account the alternative case, Cook’s prospects of
success on that point case can at best be
described as modest. In
assessing whether special circumstances exist, we may take into
account the absence of any evidence in
the application for special
leave to suggest that the alternative case represents a realistic and
plausible one rather than a mere
theoretical possibility.
[32]
The proposed appeal does not raise a substantial point of law. The
characterisation of the defendants’ alleged obligations
as
‘debts’ does not fall within any penumbra of uncertainty
which
Makate
might
be thought to have created. The requirements for the existence of a
partnership are trite, their application to the facts
alleged in the
particulars of claim straightforward.
[33]
Apart from prospects of success, which Cook in his application
optimistically described as ‘extremely good’, the
only
other factor relating to special circumstances which he alleged was
that it would be ‘a terrible injustice’ to
him if he were
not permitted to pursue his claims; Morrison’s behaviour had
been ‘unconscionable’ – he
had ‘retained
everything for himself and left me with nothing’. I accept that
Cook feels aggrieved. Most cases are
regarded by the litigants
themselves as very important. This is not in itself a special
circumstance. Something beyond the natural
interest which every
litigant has in his case is needed. Although Cook’s monetary
claims are substantial, we know nothing
of their relative importance
to him.
[34]
While it may seem unjust (on Cook’s case) for the defendants to
have been substantially benefited without making the
promised
counter-performance, this is a result inherent in the law of
prescription. The fact is that Cook had three years, as from
29
September 2010, to launch proceedings. We do not know why he waited
three and a half years. The law tolerates the extinction
of debts
through prescription because of the public interest in finality.
[35]
Accordingly, to any limited extent that Cook’s prospects of
success might rise to the level of being ‘reasonable’,
there are no special circumstances which make it just to permit a
second appeal.
[36]
The following order is made:
The application for special leave
to appeal is dismissed with costs, including the costs of two counsel
where employed.
____________________
O L
Rogers
Acting
Judge of Appeal
APPEARANCES
For
Applicant
J J Gauntlett
QC SC (with him K Hopkins)
Instructed
by
Dentons
South Africa, Sandton
Claude
Reid, Bloemfontein
For
Respondents
R
Stockwell SC (with him A J Venter)
Instructed
by
Murray
van Rensburg Inc, Johannesburg
E G Cooper
Majiedt Inc, Bloemfontein