SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, MTHATHA)
CASE NO: 1227/2022
In the matter between:
SINDISW A PATRICIA JONAS N.O. Plaintiff
and
WALTER SISULU UNIVERSITY Defendant
__________________________________________________________________
JUDGMENT
__________________________________________________________________
RUSI J
[1] The plaintiff, in her capacity as the executrix of the estate of the late
Mzimkhulu Charles Jon as (the deceased), instituted a damages claim against the
defendant on 18 March 2022, under case number 1227/2022 , for the sum of
R154 581 693.00 (one hundred and fifty -four million, five hundred and eighty -one
thousand, six hundred and ninety -three rand) , for loss of profit and income. She
alleges that the damages resulted from the defendant’s wrongful occupation during
1995, of the piece of land belonging to the deceased described as the Zazulwana
Trading Site, situated in Zazulwana Administrative Area No.1, and held in terms of
the Deed of Grant No. G[...], in the Eastern Cape Province (the property).
According to the plaintiff, the said occupation was contrary to the terms of an
agreement to exchange land that the deceased and the defendant concluded.
[2] The defendant denies liability for the damages claimed, and it raised two
special pleas, namely, that of res judicata and issue estoppel, alternatively,
prescription. On the date of the trial of the matter, the parties applied that these
special pleas be separated from the merits of the claim and dealt with first. That
application was granted.
[3] In so far as the special plea of res judicata is concerned, the defendant
contends that the same cause of action was determined by the court in proceeding s
that were instituted by the deceased in 2018 under case number 5242/2018, against
the defendant and two of its officials, and also, that, the same issues of fact and law
arose in that action. As regards prescription, the defendant alleged that the
plaintiff’s claim arose in 1993 being the time when she alleges that the deceased
suffered damages as a result of the missed business opportunity of establishing a
Shell Petrol Filling Station on the property, and, therefore, the plaintiff’s claim has
become prescribed.
[4] In replication, the plaintiff alleged, regarding the special plea of res judicata,
that, in the previous action, the claim against the defendant was founded on
unjustified enrichment, while in the present action, the cause of action is loss o f
profit and income that the deceased’s estate would have derived from the property
had the defendant not wrongfully occupied it.
[5] As regards the special plea of prescription, the plaintiff alleged that since
1993, the deceased had reasonably believed that the defendant would compensate
him for his property, and, that, at all material times prior to 6 September 2021, she
believed that the defendant would finally transfer to the deceased’s estate, a piece
of land equivalent to the deceased’s property in keeping with the terms of the land
exchange agreement. On these bases, the plaintiff alleges that prescription began to
run after 6 September 2021 when it became clear that the defendant had no
genuine intention to give effect to the exchange of land as en visaged in the
agreement that was concluded.
[6] The plaintiff pleaded, in the alternative, that the defendant misrepresented its
true intentions, resulting in the loss that the deceased’s estate suffered, and that it is
estopped from relying on her fail ure to timeously claim compensation which
resulted from its wrongful occupation of the property. Furthermore, the plaintiff
asserts that the defendant prevented her from knowing the facts giving rise to the
debt, by preventing her from knowing that it had no intention of transferring the
land it promised to the deceased. She goes on to allege that the defendant did this
by preventing her from knowing that it had no control over the transfer of the land
it promised to the deceased, and by concealing the fact that the said land is not
available to be transferred to the estate of the deceased.
[7] As alternative responses to the defendant’s special plea of prescription, the
plaintiff alleges that the debt she seeks to enforce is a reciprocal debt which, by
virtue of section 13(2) of the Prescription Act 68 of 1969 (the Act), has not become
prescribed. Section 13(2) of the Prescription Act provides that a debt that arises
from a contract and that would, but for the provisions of section 13(1), become
prescribed before a reciprocal debt that arises from the same contract becomes
prescribed before a reciprocal debt that arises from the same contract becomes
prescribed, does not become prescribed before the reciprocal debt becomes
prescribed. The plaintiff alleges that that reciprocal debt remains unenforceable as
long as the defendant has not fulfilled the obligation it had in terms of the land
exchange agreement pertaining to the transfer of an equivalent piece of land to the
deceased’s estate.
[8] Further alternatively, the plaintiff alleges that the court must interpret section
12(3) of the Act in a manner that promotes the spirit and object of the bill of rights
under the Constitution, in particular, the right to ownership of property in terms of
section 25(1) of the Constitution; the right to of access to court and to have a
dispute resolved through the application of the law. The plaintiff further invited this
Court to pronounce that ‘a cause of action that seeks to affirm a real right under
common law, even if based on delict’, ought not to prescribe; and to limit the right
of the org ans of state to raise technical defences in circumstances where they are
not prejudiced.
The background facts
[9] These are the background facts to the plaintiff’s claim. In his lifetime, Mr
Mzimkhulu Jonas entered into an agreement with the predecessor of the defendant,
the Emmanuel Student Village on 07 August 1995. In terms of the agreement, he
would exchange his property, measuring 5000 square metres of which he was the
holder and possessor in perpetuity, for a certain other piece of land. A plan or
diagram illustrating the respective pieces of land that formed the subject of the
exchange agreement was annexed to the papers filed of record. For ease of
comprehension, it is necessary to reproduce the relevant material terms of the
agreement, which are as follows:
‘The above -mentioned parties to this agreement agree to the registration of the piece of land
marked as A on the attached plan in favour of Emmanuel Student Village subject to the following
conditions –
1. The land currently registered in favour of Mr Jonas measuring 5000 square metres and
marked B on the attached plan be not included in the initial application for registration.
2. When the land marked A has been registered in the name of Emanuel Student Villa ge the
parties to this agreement agree that Emmanuel Student Village will give Mr Jonas and
equal piece of land at the Mazeppa Turn off Marked C on the plan in exchange for the
piece of land currently in the name of Mr Jonas marked B on the attached plan.
3. Once the Emmanuel Student Village has successfully registered the land marked as A on
the plan the parties will immediately apply for the re -registration of the pieces of land
being exchanged to give effect to this agreement.
4. The parties to this (sic) wil l individually be responsible for the costs of surveying and
registration of the pieces of land they apply to register except that Emmanuel Student
Village will on successful transfer of the land re -imburse Mr Jonas for the surveying and
registration of the costs he incurred (sic) in registering his current piece of land marked as
B on the plan subject to submission of documentary proof when the land currently
registered in his name has been registered in the name of Emmanuel Student Village.’
[10] During the year 1995, the defendant (then Eastern Cape Technicon)
developed the property by erecting 42 blocks of student accommodation. At the
time, the envisaged exchange of land had not been given effect to – Mr Jonas’s
property was now in occupation and use by the defendant although the land that he
was promised in exchange of it had not been transferred to him.
[11] In 2018, the deceased instituted an action in this Court in which he claimed
damages for loss of rental income. The gist of that claim was that the defendant’s
wrongful occupation of the property caused him loss of rental income in the sum of
R18 784 800.00 (eighteen million, seven hundred and eighty -four thousand, eight
R18 784 800.00 (eighteen million, seven hundred and eighty -four thousand, eight
hundred rand) which he would have generated from the property but for its
wrongful occupation. He further alleged that the defendant derived from his
property an unjustified benefit to his prejudice. In that claim, the defended raised a
special plea of prescription, which the court upheld. In the special plea, it
contended that the cause of action arose in 1995, and the plaintiff ought to have
instituted his claim no later than 1998.
The pleadings
[12] For proper context and comprehension of the special pleas, in particular, that
of res judicata, it is expedient to highlight the facts that the plaintiff had alleged in
support of the previous and the present claims, respectively, against the
background set out above regarding the land exchange agreement.
[13] The facts on which the plaintiff relied in the previous action may
conveniently be summarized as follows:
(a) Without an agreement with the plaintiff, the defendant, built student
residences on the property during 1995, which it let to students over the years, and
it generated profit therefrom to the plaintiff’s prejudice. The property is suitable for
student accommodation, and the plaintiff has not been able to gainfully and
profitably use it by reason of its occupation by the defendant and its predecessors.
(b) At all material times, the plaintiff awaited the Emanuel Student Village to
have successfully registered in its name the piece of land marked A in the diagram
so that the parties may give effect to the exchange agreement; and the plaintiff was
ready, willing, and he offered to transfer his land to the defendant and its
predecessors.
(c) The defendant and its predecessors failed to successfully have the said piece
of land registered in its name, as a result, since the coming into being of the
defendant, it has not been possible for the parties to give effect to the agreement.
(d) The defendant has, meanwhile, gainfully and profitably used the plaintiff’s
property by means of developing it into 42 blocks of student housing with each
block accommodating eight tenants at the annual rental of R18 620.00.
(e) The plaintiff i ntended to use the property for rental accommodation,
however, by reason of its occupation by the defendant, he had not been able to
gainfully and profitably utilize it. But for this occupation of the property by the
defendant, the plaintiff would have uti lized the land for student accommodation
and rental.
(f) The damages1 that the plaintiff claimed were from 2015, as he accepted that
any period beyond three years from the date of service of summons had been hit by
prescription.
(g) The plaintiff anticipated his loss to continue and escalate in value due to
inflation and other factors until the land is restored to him or judgment is granted in
his favour.
[14] In the present action, the plaintiff relies on the following facts, appropriately
summarized:
(a) During 1995, and for and on behalf of the former Eastern Cape Techn ikon,
the Emanuel Student Village built structures on the plaintiff’s property for student
accommodation. The defendant, a successor in title of the Eastern Cape Technikon
took occupation of the property during 1995 and utilizes it as accommodation for
students who are enrolled with it and/or its predecessor.
(b) The plaintiff did not consent to the defendant’s occupation of the property,
which amounted to expropriation without compensation.
1 Emphasis intended.
(c) the defendant’s occupation deprived the deceased of the use an d enjoyment
of the property as its owner.
(d) The defendant and/or its predecessor wrongfully benefitted from their
occupation of the property they never owned. Their occupation is unlawful and
wrongful, and it violates the legal convictions of the community.
(e) The defendant and/or its predecessor enjoyed the use of the property to the
financial detriment of the deceased’s estate. The defendant and/or its predecessor
misled the plaintiff into allowing them to occupy the property under the pretext
that they transfer to the deceased’s estate equivalent property from which she could
conduct business, while in truth and in fact they had no such intention.
(f) The defendant and/or its predecessors foresaw and/or could have foreseen
that their wrongful occupat ion of the property would cause the deceased’s estate
pure economic loss in the form of business and other developmental rights
available to it as the owner of the property.
(g) The defendant’s occupation of the property caused the plaintiff loss of
business as the deceased’s estate could not use the property for any purpose
beneficial to it. At all material times, the deceased wanted and intended to establish
a business on the property. But for the wrongful occupation, he would have
established a business on the property and made an income and profit on it. He
would have, and had, by 1993, taken steps to secure a business opportunity in the
form of a Shell Filling Station.
(h) The amount of damages claimed, is computed based on the expert
calculation of the profit the deceased’s estate would have made had the deceased
managed to establish the Shell Filling Station on the property or any other filling
station.
[15] At the hearin g of the special pleas, the defendant who bore the onus proof,
and the duty to begin, adduced no evidence. Mr De la Harpe who represented the
defendant invited the court to consider the defendant’s pleadings and the argument
rendered on its behalf in suppo rt of the special pleas. The plaintiff closed its case
without calling witnesses.
The parties’ submissions
[16] On behalf of the defendant, Mr De La Harpe made these principal
submissions. The 2018 action involved the same parties and the same subject
matter. The same issues of fact and the issue of law in the form of the special plea
of prescription, arose in that action. The action was finally adjudicated when the
court upheld the defendant’s special plea of prescription. For this reason, the
institution of the present claim is precluded by res judicata and issue estoppel.
[17] Regarding the special plea of prescription, Mr De La Harpe submitted that
none of the grounds relied upon by the plaintiff in rebuttal ought to succeed. This
being a claim for dam ages, he said, it is a debt as envisaged in section 10 of the
Act, which ought to have been claimed no later than three years after it became
due. That was in 1993 or 1995 when, according to the plaintiff, the defendant
missed a business opportunity when t he alleged wrongful occupation occurred.
This, so the submission went, was when the facts which the plaintiff would need to
prove in order to succeed in her claim, became known to her.
[18] Mr De La Harpe further submitted that no allegation was made by the
plaintiff in replication, that the defendant deliberately and intentionally prevented
her from coming to know of the existence of the debt, in order to successfully rely
on section 12(2) of the Act. And, in the light of the fact that the plaintiff inst ituted
the previous claim on 08 October 2018, it follows that she had knowledge of the
minimum facts required to sustain that claim. As regards the ‘continuing wrong
contention, Mr De La Harpe submitted that this is not a vindicatory action or a
claim to t erminate ongoing harm. He distinguished between the single wrong and
continuous wrong and submitted that the alleged wrong was a single act which
occurred in 1993 or 1995, and the damages currently claimed are said to emanate
from that single act.
[19] Dealing with the reciprocal obligation assertion that the plaintiff made, Mr
De La Harpe submitted that the current claim is not for enforcement of a reciprocal
debt, namely, the transfer of the land as envisaged in the exchange agreement, but
for damages re sulting from the alleged wrong. He further submitted that the
prescription periods provided for in the Act are recognised in our law as a matter of
public interest to ensure timeous adjudication of legal disputes. Furthermore, that,
there is no legal basis for the pronouncement that the claim has not become
prescribed as the plaintiff is not asserting any real right to the property.
[20] Mr Mapoma who represented the plaintiff submitted, chiefly, that the special
plea of res judicata cannot be sustained, in that, the 2018 and current actions were
founded on different causes of action. It was his submission further that in the
current claim, the plaintiff asserts her ownership rights to the property, a matter
that never arose in the previous action. According to Mr Mapoma, the damages that
the plaintiff claims in the present action result from the wrong committed by the
defendant when it wrongfully occupied the property, which wrongful occupation
still continues. On these bases, he submitted that plaintiff’s claim has not become
prescribed.
[21] For the balance of his submissions, Mr Mapoma referred this Court to the
heads of argument that were filed on behalf of the plaintiff. In them, it was
submitted as another reason why the special plea of res judicata should not
submitted as another reason why the special plea of res judicata should not
succeed, that, in the 2018 action, the court did not determine the merits of the
claim but only dealt with prescription. I will revert to this aspect later on in this
judgment.
[22] Mr Mapoma sought and was granted leave to file suppl ementary heads of
argument on behalf of the plaintiff on the special plea of prescription. Those heads
of argument were filed on 04 June 2025. Issue was taken in the plaintiff’s
supplementary heads of argument, with the defendant’s failure to adduce eviden ce
to prove the special pleas of prescription whereas it had the onus to prove the
special pleas. For this reason, it was submitted that the defendant failed to prove
the date on which the plaintiff acquired the knowledge of the facts giving rise to
the debt. Apart from this, it was further submitted that it is incorrect to suggest, as
the defendant did, that the plaintiff is precluded from claiming damages resulting
from the wrongful occupation that occurred in 1995 for as long as the wrong
continues.
[23] In response to these supplementary submissions, the defendant persisted
with the arguments it previously posited, emphasizing that contrary to what the
plaintiff states that the defendant’s occupation of the property constitutes a
continuous wrong, the oc cupation was a single act of the alleged appropriation of
the property which occurred more than 3 years before she instituted the current
claim. Furthermore, since the plaintiff did not advance a vindicatory claim, it is
incorrect that her claim has not become prescribed.
The legal principles
[24] The need for an end to litigation and the protection of persons against
harassment with second litigation on the same subject is at the heart of the defence
of res judicata.2 In its strict sense, the defence means that a matter has already been
decided by a competent court on the same cause of action and for the same relief
2 Erasmus Superior Court Practice [service 15, 2020], D1- 283 – 284.
between the same parties. 3 For this defence to succeed, the defendant who relies
on it must allege and prove that (i) there is a previous j udgment by a competent
court (ii) between the same parties (iii) based on the same cause of action, and (iv)
with respect to the same subject-matter, or thing.4
[25] The courts have relaxed the application of the defence of res judicata in
order to ensu re equity and fairness, and to prevent an abuse of the process of
court.5 This has been done by the endorsement of issue estoppel as part of the
defence. The essence of issue estoppel, as laid down in Boshoff v Union
Government,6 is that even if the cause of action and the subject matter were not the
same in the two actions, where the same issue of fact or law formed the subject of
the previous judicial determination, the party will be estopped from re -ligating on
the same issues. 7 A re -statement of the reasoning behind issue estoppel as
explained in Democratic Alliance v Brummer ,8 is instructive, with respect, where
the following was said:
‘[I]ssue estoppel developed precisely because requiring the sameness between the two causes of
action allows parties to relitigate the same issue by garbing these up in different causes of action.
. .’
[26] The facts of each case must be carefully considered in order to determine
whether the same issue of fact or law arose in the previous judicial adjudication.
3 Ascendis Animal Health (Pty) Limited v Merck Sharpe Dohme Corporation and Others (CCT 212/18) [2019]
ZACC 41; 2020 (1) SA 327 (CC); 2020 (1) BCLR 1 (CC); 2019 BIP 34 (CC) (24 October 2019) para 70.
4 Id, para 71.
5 Smith v Porrit and Others 2008 (6) SA 303 (SCA) at 307J – 308A-D.
6 1932 TPD 345.
7 Smith v Porrit and Others, supra; Janse Van Rensburg and Others NNO v Steenkamp and Another; Janse Van
Rensburg and Others NNO v Myburgh and Others 2010 (1) SA 649 (SCA) at 657E-G.
8 2021 (6) SA 144 (WCC) para 28.
[27] As regards the prescription of debts, this is a matter governed by the
Prescription Act. In terms of section 10 of the Act, a “debt” is susceptible to
prescription if not claimed within the relevant period as laid down in section 11. In
Makate v Vodacom ( Pty) Ltd9 Wallis AJ, writing for the minority, re-affirmed the
meaning of “debt” that was enunciated in Electricity Supply Commission v
Stewarts and Lloyds of SA (Pty) Ltd 10, where the Appellate Division said that the
word “debt” in the Prescription Act should be given the meaning ascribed to it in
the Shorter Oxford English Dictionary, namely:
“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.”11
[28] Section 11(d) of the Act provides for a general period of 3 years within
which any other debt not specified in that section must be claimed, save where an
Act of Parliament provides otherwise. And, in terms of section 12(1), prescription
begins to run when the debt becomes due, and that will be when the creditor has
knowledge of the identity of the debtor and of the facts from which the debt arises.
What is required to trigg er the commencement of prescription, is the creditor’s
knowledge of the minimum facts that are necessary to institute the action. 12 This
does not include legal conclusions to be drawn from the facts (such as the
requirements of unlawfulness and fault).13
[29] In terms of section 12(3) of the Act, 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
9 Makate v Vodacom (Pty) Ltd (CCT52/15) [2016] ZACC 13; 2016 (6) BCLR 709 (CC); 2016 (4) SA 121 (CC) (26
April 2016), (Makate 2016).
10 1981 (3) SA 340 (A) at 344E-G.
11 Id, para 187.
12 Truter and Another v Deysel [2006] ZASCA 16; 2006 (4) SA 168 (SCA); Minister of Finance and Others v Gore
NO [2006] ZASCA 98; [2007] 1 All SA 309 (SCA); 2007 (1) SA 111 (SCA); Links v MEC, Department of Health,
Northern Cape [2016] ZACC 10; 2016 (5) BCLR 656 (CC); 2016 (4) SA 414 (CC).
13Mtokonya v Minister of Police [2017] ZACC 33; 2017 (11) BCLR 1443 (CC); 2018 (2) SA 22 (CC), para 63.
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. The running
of prescription will not commence if the debtor wilfully prevents the creditor from
coming to know of the existence of the debt, until the creditor becomes aware of
the existence of the de bt. This is in terms of section 12(2). With these legal
principles in mind, I turn to deal with the special pleas raised in the present case.
Discussion
[30] There is no controversy regarding the fact that the parties in the 2018 and the
current claim are the same in the sense that in 2018, the deceased in his lifetime
instituted proceedings in his personal capacity, while in present action, his estate is
represented by the plaintiff. The defendant is the same in this action as in the
previous action. Both causes of action arose from a failed land exchange agreement
that was concluded in 1995 whose factual background I have set out above.
[31] It bears mentioning at this earliest stage that the facts relied upon by the
plaintiff in the 2018 claim a re markedly an oscillation between ineptly pleaded
claims for damages and unjustified enrichment. With that said, I am willing to
accept, for the present purposes, the plaintiff’s own classification of the 2018 claim
in her replication, as a claim for unjustified enrichment in its general form. Moving
from this premise, the starting point is that although the 2018 claim for unjustified
enrichment and the current claim for damages both entail a form of financial loss,
they are not the same causes of action.
[32] In the enrichment claim, the plaintiff sought restitution of unjustly obtained
gains, whereas in the damages claim, she claims compensation for loss of profit
and income. This makes the two causes of action distinct from one another. A
damages claim is founded on a delict, whose essential elements are an act,
wrongfulness, fault, causation, and harm. 14 A claim for unjustified enrichment, in
its general from, on the other hand, consists in (a) the enrichment of the defendant;
(b) the corresponding imp overishment of the plaintiff; and (c) a causal link
between the defendant’s enrichment and the plaintiff’s impoverishment; and (d) the
enrichment which must be unjustified or without legal cause (sine causa).15
[33] In the context of the present case, if t he defence of res judicata is applied in
its traditional form, it must follow that the two causes of action are not the same.
That being so, the defendant contends that the factual basis of both claims is the
same and that the same questions of fact and law at play in the present matter arose
in the 2018 claim for unjustified enrichment. Hence, the reliance on issue estoppel.
[34] Issue estoppel, as mentioned, bars the plaintiff from re-litigating on the same
issues of fact and law that arose in the previou s litigation. I have no difficulty in
finding that the factual matrix in the present dispute remains the same as that in the
2018 action. Not only that, but based on that same factual basis, the defendant, in
the 2018 claim, like in the present claim, rais ed the defence of prescription which
the court upheld. This means that the same issues of fact and law arose in both
claims. This is a typical case where this Court must consider the relaxation of the
res judicata defence.
[35] I must interpose to deal wi th the contention that the plaintiff made, that,
since in the 2018 action the court did not consider the merits of the claim but only
dealt with the special plea of prescription, then, the current claim is not precluded.
It is indeed so, that in dealing wi th the special plea of prescription, the court does
not determine the merits of the claim. That being so, the plaintiff’s assertion
14 H L & H Timber Products (Pty) Ltd v Sappi Manufacturing (Pty) Ltd (281/98) [2000] ZASCA 187; [2000] 4 All
SA 545 (A); 2001 (4) SA 814 (SCA) (29 September 2000), para 13.
15 Kudu Granite Operations (Pty) Ltd v Caterna Ltd (100/02) [2003] ZASCA 64; [2003] 3 All SA 1 (SCA); 2003 (5)
SA 193 (SCA) (30 May 2003) ; para 17; PRASA Corporate Real Estate Solutions v Community Property Company
Ltd and Another (384/2023) [2024] ZASCA 35 (28 March 2024), para 27.
overlooks the applicability of issue estoppel as outlined above. It is precisely
because of the final determination of the s ame special plea of prescription in the
2018 action that issue estoppel is raised by the defendant in the present action.
Therefore, considered against the principle of issue estoppel, the defendant’s
special plea of res judicata in its extended form, must succeed.
[36] Even if I am wrong in making these findings, there is another reason why the
plaintiff’s claim should not be permitted. This I say, despite the argument that Mr
Mapoma made to the effect that, in the current claim, the plaintiff asserts her
ownership rights to the property. He suggested that the present action is an
assertion of a real right (action in rem), therefore, for as long as the defendant’s
unlawful occupation continues, the plaintiff’s cause of action does not prescribe.
[37] I was referred to Barnett v Minister of Land Affairs 16 in which the
government made a claim to evict the respondents who were the occupiers of sites
and cottages on the Transkei Wild Coast in an area 13 kilometres north of Port St
Johns and situated in the magisterial district of Lusikisiki, on the basis that the sites
they occupied formed part of State land . In that case, Brand JA explained the legal
position as follows:
‘Broadly stated, it must therefore be accepted for the prescription issue that the def endants’
occupation of their sites constitutes a contravention of both the Decree and the common law.
Departing from this premise, the answer to the prescription defence is, in my view, to be found in
the concept which has become well -recognised in the con text of prescription, namely that of a
continuous wrong. In accordance with this concept, a distinction is drawn between a single,
completed wrongful act – with or without continuing injurious effects, such as a blow against the
head – on the one hand, and a continuous wrong in the course of being committed, on the other.
While the former gives rise to a single debt, the approach with regard to a continuous wrong is
16 Barnett and Others v Minister of Land Affairs and Others 2007 (6) SA 313 (SCA) (Barnett).
essentially that it results in a series of debts arising from moment to moment, as long as t he
wrongful conduct endures.17 (footnotes omitted).
[38] However, Mr Mapoma’s argument overlooks the fact that in the current
claim the plaintiff claims not the return of the property, or relief that would put an
end to the unlawful occupation, but compe nsation for the damages she suffered as
a result of the wrongful occupation of the property by the defendant.
[39] The essence of the plaintiff’s response to this special plea is two -fold. In the
first instance, she contends that at all material times bef ore September 2021 she
reasonably believed that the defendant would compensate her for the deceased’s
property by effecting the transfer that was envisaged in the land exchange
agreement. She further states that prescription commenced to run on 06 Septembe r
2021 when it became clear 18 that there was no genuine intention on the part of the
defendant to effect the envisaged transfer, to her loss through the wrongful
occupation. An assertion that ‘it only became clear to the plaintiff on 06 September
2021’ that the defendant had no genuine intention to cause the envisaged transfer,
cannot be correct. I elaborate below.
[40] As already mentioned, the factual milieu forming the basis of the previous
claim is the same as the one relied upon in the current claim. T he importance of
this is that, in order for the plaintiff to institute the 2018 claim for unjustified
enrichment, she would have acquired the knowledge of the facts giving rise to the
debt. Those facts were, the identity of the defendant; the fact that the defendant
developed the property without his consent, and that it failed to give effect to the
envisaged transfer, as well as the fact that for all these years the defendant was
deriving financial benefit from his property in the form of student rental housing to
17 Id, para 20.
18 Emphasis intended.
his financial loss or prejudice. These are the minimum facts that the plaintiff would
have known when the 2018 claim was instituted. These facts could not have
changed, and dare I say they have not, for the purposes of the current damages
claim. This finding disposes of the alternative pleaded by the plaintiff in
replication that the defendant withheld the facts which gave rise to the debt
claimed in the current action.
[41] Concerning the continuous wrong alternative argument, the plaintiff inv ited
this Court to pronounce that a claim that seeks to affirm a real right under common
law, even if based on delict, ought not to prescribe; and to limit the right of the
organs of state to raise technical defences in circumstances where they are not
prejudiced. I can do no better than quote Wallis AJ in his separate concurring
judgment in Makate 2016, where he said:
‘[I]n the case of a continuing wrong there can be no question of prescription even though the
wrong arises from a single act long in the pas t. The reason, which may appear somewhat
artificial, but which is well established, is said to be that while the original wrongful act may
have occurred at a past time the wrong itself continues for so long as it is not abated. But the
running of prescription in respect of any financial claim arising from the same wrong will not be
postponed. Accordingly, if financial loss was occasioned by the original wrongful act, the debt
in relation to that loss would become due and prescription would commence to ru n when the
original wrongful act occurred and loss was suffered. The result is that the impact of prescription
on claims having their source in the same right may differ depending on the nature of the
claim.’19 (my own emphasis)
[42] The current claim is for delictual damages for loss of profit and income. I
have already observed that the plaintiff is not here claiming the return of the land
(an action in rem), but compensation (an action in personam). On the plaintiff’s
(an action in rem), but compensation (an action in personam). On the plaintiff’s
own showing, t he harm causing occupation took place in 1995. The damages that
she now claims flow from that wrongful act. Viewed against the exposition of the
19 Id, para 192.
legal principle in the above quoted passage from Makate 2016 , the plaintiff’s
‘continuous wrong’ contention cannot be sustained.
[43] As regards the plaintiff’s further alternative contention that she seeks to
enforce reciprocal obligations arising from the agreement between the deceased
and the defendant, it bears mentioning that reciprocal obligations are oblig ations
that are linked together in that the performance of one obligation is in exchange for
the performance of the other. 20 The obligations must be reciprocal and the
contractants must be obliged to perform simultaneously, or that the party who
claims performance must be bound to perform before the defendant. The terms of
the agreement considered as a whole, will determine whether the intention of the
parties was that there would be reciprocity between the obligations undertaken by
the parties.21
[44] Marais JA, in Minister of Public Works and Land Affairs and Another v
Group Five Building Ltd, 22 said the following regarding the provisions of section
13(2) of the Prescription Act:
‘The provision does not delay the commencement of the running of prescription: it serves merely
to prevent prescription from taking its toll when the appropriate period has elapsed if there then
happens to be in existence a reciprocal debt which is not yet prescribed. . . Reciprocity of debt in
law does not exist merely because th e obligations which are claimed to be reciprocal arise from
the same contract and each party is indebted in some way to the other. A far closer, and more
immediate correlation than that is required. . . The contractor’s right to claim damages for breach
of contract is not matched by any particular obligation towards appellants on its part. It is not
20 Van Huyssteen et al Contract General Principles, 6th edition (Juta) 2020, p436.
21 Wynns Car Care Products (Pty) Ltd v First National Industrial Bank Ltd 1991 (2) SA 754 (A) at 758C -D; Miloc
Financial Solutions (Pty) Ltd v Logistic Technologies (Pty) Ltd (233/07) [2008] ZASCA 40; [2008] 3 All SA 395
(SCA); 2008 (4) SA 325 (SCA) (28 March 2008); para 51.
22 1996 (4) SA 280 (A) at 288C-D.
required to have performed or to tender performance of any reciprocal obligation in asserting
such a claim. . .’ (footnotes omitted)
[45] Ordinarily, an alleged failure to perform an obligation under a contract gives
rise to two options to be exercised by the plaintiff – the first being to enforce the
agreement by claiming specific performance; or to cancel the agreement and claim
damages. The difficulty facing the plaintiff in regard to the assertion of reciprocal
obligations, is that the current cause of action is founded on delict, it has nothing to
do with breach of contract. The debt referred to in section 13(2) is a debt that arises
from a contract.
[46] In the present action, the plaintiff claims damages arising not from a breach
of contract but from the alleged unlawful and wrongful occupation of the property
belonging to the deceased’s estate. There is a distinction between an infringement
of a contractual obligation (breach of contract) and delict, which is an infringement
of a right owed to the contractant independently of the contract. 23 An inescapable
finding is that the damages thus claimed cannot be classified as the enforcement of
a reciprocal obl igation in the context of section 13(2) of the Act. The plaintiff’s
alternative defence of reciprocal obligations can, therefore, not be sustained.
[47] Lastly, it is so, that the objects of the Bill of Rights are promoted by
adopting a meaning that does not limit a right in the Bill of Rights, where the
provision is capable of more than one meaning.24 In asking this Court to adopt such
a meaning in relation to the provisions of sections 12 of the Prescription Act, the
plaintiff enumerates the right of acc ess to court and to have the dispute resolved
23 Van Huyssteen et al, supra, footnote 17 at p385.
24 Makate 2016, supra, para 89.
through the application of the law, the right of ownership of property in section
25(1) of the Constitution, among other things.
[48] The time bars in litigation, which include those provided for in the
Prescription Act have been held to be a part of our legal system whose purpose is
to ensure social certainty and the quality of adjudication. In Road Accident Fund
and Another v Mdeyide ,25 a matter which concerned a different context of the
provisions of section 23(1) of the Road Accident Fund Act 56 of 1996, it was said:
‘[I]n the interests of social certainty and the quality of adjudication, it is important though that
legal disputes be finalised timeously. The realities of time and human fallibility req uire that
disputes be brought before a court as soon as reasonably possible. Claims thus lapse, or
prescribe, after a certain period of time. If a claim is not instituted within a fixed time, a litigant
may be barred from having a dispute decided by a cour t. This has been recognised in our legal
system – and others – for centuries.26
[49] Writing for the minority in the same matter, Froneman J said of time bars
and prescription periods and their nature of limiting the right to seek judicial
redress:
‘The right of access to court to resolve justiciable disputes is fundamental to a society governed
by the rule of law. Knowledge of the facts that give rise to a justiciable claim is a necessary
precondition for the exercise of the right of access. Without that k nowledge the right of access
means nothing; it remains abstract and illusory. . . Even though these limitations serve an
important purpose in preventing inordinate delays which may be detrimental to the interests of
justice, they must still be scrutinised to determine whether they pass constitutional muster under
section 36 of the Constitution. . . There is no hard and fast rule for determining the degree of
limitation that is consistent with the Constitution. It depends upon whether the limitation affords
25 Road Accident Fund and Another v Mde yide (CCT 10/10) [2010] ZACC 18; 2011 (1) BCLR 1 (CC); 2011 (2) SA
26 (CC) (30 September 2010).
26 Id, para 2.
litigants an adequate and fair opportunity to exercise the right to judicial redress. The limitation
must allow sufficient time between the date when the facts giving rise to the claim come to the
knowledge of the claimant and the time within which litigat ion may be launched. The
Prescription Act, as the benchmark legislation for the operation of prescription, requires
knowledge, actual or reasonably deemed, as a necessary precondition to enable someone to
exercise their right of access to court. This is al so evident in various other laws and past
decisions of this Court. The object of this requirement is aimed at preventing prescription
running against a person who, by reason of the lack of knowledge and the inability to acquire it
by the exercise of reasonable care, is unable to institute action.27
[50] I make the finding that the plaintiff was afforded adequate and fair
opportunity to exercise the right to judicial redress. As the plaintiff in the 2018
action, the deceased acknowledged the fact that the po rtion of his claim arising
from a period before 2015 had become prescribed. I re-iterate that the same facts in
this action were relied on in advancing 2018 action. No sound legal basis exists for
the interpretation that the plaintiff in the present case h as called for. This
alternative, too, must fail.
[51] To conclude, it is not correct, as suggested on behalf of the plaintiff in her
supplementary heads of argument, that because the defendant relied on the
pleadings and legal arguments made and adduced no evidence to prove
prescription, it failed to discharge the onus that rested on it of proving the date on
which prescription began to run. A defendant who raises prescription bears the full
evidentiary burden to prove the plea of prescription, including th e date on which a
plaintiff obtained actual or constructive knowledge of the debt. The burden shifts to
the plaintiff only if the defendant has established a prima facie case. This is trite
law.28
27 Op cit, para 100 -103.
law.28
27 Op cit, para 100 -103.
28 Macleod v Kweyiya 2013 (6) SA 1 (SCA) para 10; Jugwanth v MTN (529/2020) [2021] ZASCA 114; [2021] 4 All
SA 346 (9 September 2021), para 6.
[52] While it is indeed so that the determination of the special plea of prescription
is fact based, the facts pleaded by the parties in the present case render the
defendant’s argument untenable. On the plaintiff’s own version as pleaded, the
wrongful occupation which resulted in her loss occurred in 1995. By 199 3, the
deceased had taken steps to establish the Shell Filling Station from which he would
have conducted a business. From each of these two dates, a period of more than 3
years has elapsed before the date on which the present action was instituted.
[53] However, also relevant for the purposes of prescription in this case, is the
plaintiff’s assertion that the defendant prevented her from acquiring the knowledge
of the facts giving rise to the debt. I have already made a finding that the facts
pleaded in support of the 2018 action and the current one remain the same. They
emanate from the failed 1995 land exchange agreement. From this alone, it ought
to follow that when the deceased instituted the 2018 action, he had the knowledge
of minimum facts necessary to sustain that action. Those facts have not changed in
the current action. The result is that whether the debt became due in 1993 or 1995,
it had become prescribed on 18 March 2022. The pleadings alone establish this.
[54] For all the following rea sons, the defendant has discharged the onus of
proving both exceptions, they must accordingly be upheld.
[55] In the result, I make the following order:
1. The special pleas of res judicata and prescription are upheld.
2. The plaintiff’s claim is dismissed.
3. The plaintiff shall pay the defendant’s costs including costs of counsel on
scale C referred to in Uniform Rule 67A.
___________________
L. RUSI
JUDGE OF THE HIGH COURT
Appearances:
For the plaintiff : Adv. S X Mapoma SC
Adv. B Maswazi
Instructed by : Jolwana Mgidlana Inc., Mthatha
For the defendant : Adv. D H De La Harpe SC
Instructed by : Drake Flemmer & Orsmond Attorneys, Mthatha
Date heard : 25 May 2025
(Supplementary heads of argument filed on 05 June 20025).
Date delivered : 25 November 2025