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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
JUDGMENT
Not Reportable
Case no: A305/2024
In the matter between:
SUPERSTRIKE INVESTMENTS (PTY) LTD APPELLANT
And
ARIELLE VAN DER MERWE
RESPONDENT
Neutral citation: Superstrike Investments (Pty) Ltd v Van der Merwe (Case no
A305/2024) [2026] ZAWCHC … ( April 2026)
Coram: NUKU J, PANGARKER J, AND MORRISSEY AJ
Heard: 18 August 2025
Delivered: 7 April 2026
Summary: Prescription – Extinctive prescription – Period of prescription – When
it commences – claim based on delict – Under s 12 (3) of the Prescription Act of
1969, prescription begins to run from when the creditor has knowledge or is
deemed to have knowledge of the identity of the debtor . Whether on the basis of
the evidence presented, it was such that the respondent, by taking reaso nable steps
and/or making reasonable enquiries, could have established the minimum facts
which needed to be proved in order for the appellant to be potentially as liable for
her damages as the other defendants whom the appellant sued timeously.
ORDER
1. The appeal is upheld with costs, such costs to include the costs of two
counsel, with senior counsel’s costs to be taxed on Scale C and junior
counsel’s costs to be taxed on Scale B.
2. The order of the Court a quo is set aside and replaced as follows:
a. The special plea is upheld with costs , such costs to include costs of
counsel to be taxed on Scale B.
b. The plaintiff’s claim against the third defendant in case number
22436/2018 is dismissed with costs.
JUDGMENT
Morrissey AJ (minority):
[1] This appeal is before us with the leave of the Supreme Court of Appeal. The
central issue is the merit of the appellant’s contention that the alleged debt the
respondent pursues it for prescribed at midnight on 22 January 2019. This Court,
per Adhikari AJ (the Court a quo), rejected that contention.
[2] The respondent , whom I will refer to as the plaintiff in this judgment,
alleges that she injured her spine on 23 January 2016. She did so after she swung
from a rope tied to a tree near a dam in Stellenbosch. She says she released the
rope while she was above the dam and collided with a submerged tree stump when
she hit the water.
[3] Almost three years later, d uring December 2018 , t he plaintiff instituted
action proceedings to recover the damages she claims resulted from her injury. At
that stage she directed her claim against two defendants, the ISA Carstens
Academy (Pty ) Ltd (“ the Academy ”) and the University of Stellenbosch (“ the
University”).
[4] I discuss the nature of the plaintiff’s claim in more detail below. For present
purposes all that bears mentioning is that the claim against the Academy was
based, in part, on the allegation that it operated the ISA Ladies Residence, a
student residence in Stellenbosch at which the plaintiff lived at the time she alleges
to have injured her spine.
[5] During April 2019, the Academy responded to the plaintiff’s claim against it
with a special plea of non-joinder. It also pleaded over on the merits. The essence
of the special plea was that Superstrike Investments 121 (Pty) Ltd (the appellant)
was the controller of the ISA Ladies Residence, not the Academy. Accordingly, so
alleged the special plea, the appellant should have been a party to the proceedings .
I will refer to the appellant as “Superstrike” for the rest of this judgment.
[6] During May 2020, and as something of a delayed reaction to the Academy’s
special plea, the plaintiff applied to join Superstrike as the third defendant to her
action. That application was served on Superstrike on 15 May 2020.
[7] Superstrike resisted the joinder application on the basis that any debt it owed
the plaintiff had prescribed . The Court nevertheless directed the joinder of
Superstrike on 13 December 2021. It apparently addressed Superstrike’s
prescription objection on the basis that it could be raised as part of its de fence to
the action.
[8] During January 2022 the plaintiff amended her claim to reflect Superstrike’s
joinder as the third defendant and to extend her claim for damages to it. This was
essentially done by adding a paragraph describing Superstrike as the third
defendant, and adding the words “ and/or Superstrike ” to each allegation made
against the Academy and the University.
[9] For example, paragraph 4.1 of the particulars of claim as originally
formulated read as follows:
“At all times relevant to this action… Plaintiff was a first year student
registered as such at the Academy, and was accepted as a resident of the
ISA Ladies Reside nce, a residence controlled by the Academy and/or
University (“the residence”).”
[10] After the January 2022 amendment, that paragraph read as follows (all
emphasis added to quotations is mine, unless otherwise indicated):
“At all times relevant to this action… Plaintiff was a first year student
registered as such at the Academy, and was accepted as a resident of the
ISA Ladies Residence, a residence controlled by the Academy and/or
University and/or Superstrike (“the residence”).”
[11] Superstrike responded to the amended claim during February 2022 by filing
a special plea of prescription and a plea over on the merits.
[12] The special plea contended that the debt the plaintiff pursues against
Superstrike has prescribed. It averred t hat the plaintiff’s cause of action arose on
23 January 2016 (the date the plaintiff allegedly sustained her injury), that it would
have become prescribed at midnight on 22 January 2019 (three years later), and
that the plaintiff had not issued summons against the Superstrike by that date.
[13] The matter served before the Court a quo on 19 April 2023. The plaintiff
and Superstrike had agreed that the special plea of prescription would be
determined separately and on a limited body of evidence. The Court a quo
recorded the arrangement as follows:
“In a joint practice note delivered by the plaintiff and Superstrike, the
parties recorded their agreem ent that the special plea of prescription be
heard by way of argument only, and that the Court be requested to have
regard to the pleadings in the action as well as the affidavits filed in the
joinder application, in adjudicating the special plea. Counsel for the parties
confirmed at the commencement of the hearing of the special plea that the
agreement between the parties was correctly recorded in the joint practice
note.”
[14] On 28 April 2023 , the Court a quo handed down Judgment dismissing
Superstrike’s special plea. It went on to refuse Superstrike leave to appeal.
Superstrike then sought leave from the Supreme Court of Appeal. That application
was granted and the matter served before us on 18 August 2025.
[15] Without wishing to oversimplify the helpful submissions made by Mr
Stelzner, assisted by Mr Rademeyer , on behalf of Superstrike , the mainstays of
Superstrike’s case on appeal can be broadly summarised as follows:
a. The case against Superstrike was ultimately founded on it the fact that
it was the controller of the ISA Ladies Residence.
b. The fact that someone was in control of the ISA Ladies Residence was
known to the plaintiff at all material times, including the moment she
allegedly injured her spine on 23 January 2016.
c. The plaintiff incorrectly concluded that either the Academy or the
University was the party that controlled the ISA Ladies Residence
when she originally issued summons in December 2018.
d. Had she exercised reasonable care, the plaintiff could have ascertained
that it was in fact Superstrike that controlled the ISA Ladies
Residence.
e. The latter was the only question the Court a quo should have been
concerned with, and it should have resolved that question in
Superstrike’s favour on the evidence available.
f. In particular, there was evidence of a written lease agreement for the
plaintiff’s room that was concluded shortly before the plaintiff’s
alleged injury occurred and which indica ted that Superstrike was the
lessor; and there was an affidavit by Superstrike’s attorney to the
effect that a basic Internet search revealed that Superstrike controlled
the ISA Ladies Residence.
[16] Mr Botha , who appeared together with Mr S Botha for t he plaintiff,
submitted that the Court a quo had correctly dismissed Superstrike’s special plea
of prescription.
[17] At the risk of damping his considered submissions, Mr Botha essentially
argued that the plaintiff’s case was that she sustained her injury in the course of a
so-called “welcoming event” for certain first -year students at the University, and
that material facts underlying her claims against the defendants were that one or
more of them:
a. Had control over the welcoming event; and
b. Employed so -called mentors to run the welcoming event, those
mentors being other students at the University.
[18] Mr Botha went on to submit that the agreed body of material the Court was
to have regard to when considering the special plea did not establish that the
plaintiff had knowledge of those facts (either at the time of her injury or at all), and
that Superstrike had thus failed to discharge the onus resting on it to establish that
the plaintiff’s claims had prescribed. That was essentially what the Court a quo
had concluded, Mr Botha said, and the appeal should thus be dismissed.
[19] For the sake of completeness, three further contentions I understood Mr
Stelzner to raise were as follows:
a. The facts Mr Botha and the Court a quo found the plaintiff did not
have knowledge of (i.e.: control of the welcoming event and the
employment of the mentors) were legal conclusions drawn from facts
she did know, and were thus irrelevant to the prescription enquiry.
b. Although Superstrike bore the onus of establishing its prescription
defence, that onus was a relatively light one because it concerned facts
uniquely within the plaintiff’s knowledge.
c. The fact that the plaintiff was able to plead a claim against the
Academy when she thought it controlled the ISA Ladies Residence
meant that the only fact she didn’t know was that that residence was
in fact controlled by Superstrike, and thus the only question the Court
a quo was required to consider wa s whether the plaintiff did or ought
to have known that fact.
[20] In my view, the competing contentions of the parties arose more from
differences between them of the claims advanced in the particulars of claim than
due to differences regarding the law pertaining to prescription. It is nevertheless
useful to rehearse that law before adjudicating the competing contentions set out
above.
[21] Section 12(3) of the Prescription Act, 68 of 1969, is a deeming provision. It
serves to delay the commencement of prescription which, per section 12(1),
commences to run as soon as a debt is “due”. It does so in the following terms:
“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 the creditor shall be deemed to have such knowledge if… [she] could
have acquired it by exercising reasonable care.”
[22] The operation of section 12(3) has been the subject of much judicial and
academic discussion. Broadly stated, the subsection contemplates an enquiry into
when a creditor obtained actual or constructive knowledge of certain information,
namely, the identity of the debtor and the facts from which the debt pursued arose.
[23] In MEC for Health, Western Cape v Coboza 2020 JDR 2720 (SCA), the
Supreme Court of Appeal promoted a two -step approach when conducting an
enquiry under section 12(3) to ascertain whether a plaintiff had knowledge of the
facts from which their debt arose:
a. The first step is to determine the identity of the debtor and the facts from
which the relevant debt arose.
b. The second step is to determine when the creditor obtained actual or
constructive knowledge of those facts.
[24] The expression “the facts from which a debt arises ” has been interpreted as
referencing the minimum essential facts that are necessary for a pl aintiff to
institute action ( Minister of Finance and Others v Gore NO 2007 (1) SA 111
(SCA) at [17]). They were described as the “primary facts ” in Coboza, a
description subsequently endorsed by the majority Judgment in Le Roux v
Johannes G Coetzee & Seuns 2024 (4) SA 1 (CC) at [36].
[25] To determine what the primary facts in any given case are, one needs to have
an understanding of the legal basis on which the creditor pursues the debt in
question.
[26] For example, in a case w here a plaintiff sues for damages arising from a car
crash, the legal basis underlying the debt will often be delictual. An element of a
delictual claim is negligence. Accordingly, the primary facts giving rise to the
“debt” of damages the plaintiff purs ues would include those upon which a
conclusion of negligence could be drawn, such as the fact that the defendant drove
at an excessive speed, failed to keep a proper lookout, or was guilty of some other
unreasonable conduct that imperils travel by road.
[27] Importantly, a finding that the defendant in the above example drove
negligently is not itself one of the primary facts, but rather a legal conclusion or
opinion that is drawn from them.
[28] That distinction is important because section 12(3) is con cerned with a
creditor’s knowledge of facts, not the conclusions of law to be drawn from them.
It is thus not open for a plaintiff to contend that the running of prescription was
delayed because, although they were aware of the primary facts giving rise t o the
debt they pursue, they were unaware of the legal conclusions flowing from them.
[29] The distinction between primary facts and conclusions of law is illustrated in
Truter v Deysel 2006 (4) SA 168 (SCA ). Mr Deysel underwent a series of
operations to his eye, which he ultimately lost due to complications with the
surgery. He considered that the operations had been conducted negligently and
sought to procure reports from experts to that effect before in stituting proceedings.
He was unable to procure a report concluding that the operations had been
negligently carried out per se . However, he did ultimately procure a report
concluding that it had been negligent for the series of operations he had been
subjected to being undertaken so close together. Mr Deysel sued Dr Truter and his
claim that was met with a special plea of prescription.
[30] The prescription point was upheld by the Supreme Court of Appeal. It
found that prescription had commenced to ru n once Mr Deysel knew of the
primary facts underlying his claim (including the fact that the operations had been
carried out in relatively quick succession) and, possibly, because he had formed a
suspicion that they had been negligently carried out. Presc ription was not delayed,
said the Supreme Court of Appeal, until Mr Deysel had knowledge of an expert
opinion that analysed those primary facts to draw a conclusion of negligence.
[31] The distinction between primary facts and legal conclusions drawn from
them has been endorsed in several cases, including Mtokonya v Minister of Police
2018 (5) SA 22 (CC).
[32] Merely because a conclusion is drawn from primary facts does not of itself
mean that conclusion is not itself a primary fact, and it is possible fo r some
primary facts to be drawn from others.
[33] An example of such a situation arose in Links v Department of Health,
Northern Province 2016 (4) SA 414 (CC).
[34] In that matter the plaintiff lost the use of his left hand after receiving certain
medical treatment. An expert report concluded that the plaintiff’s injury was likely
caused by staff at the respondent’s hospital having applied plaster of paris too
tightly to his hand. The plaintiff knew both that the plaster had been applied to his
hand and that he had lost the use of his forearm , but he did not know that the
former event was causally connected to the latter.
[35] On my reading of Links, the Constitutional Court found that factual
causation was a primary fact, that prescription accordingly did not commence
running until the plaintiff had knowledge of it, and that such knowledge could not
be attributed to the plaintiff merely because he had knowledge of the primary facts
on which causation was established (i.e.: the application of plaster of paris and the
injury to the plaintiff’s hand). Rather, the plaintiff would only have such
knowledge once he received (or could reasonably have been exp ected to procure)
expert advice revealing the causal connection between those two facts.
[36] Once the primary facts are identified, the question turns to the plaintiff’s
knowledge of them and when it was acquired. Section 12(3) contemplates actual
or constructive knowledge.
[37] What is sufficient to constitute knowledge of a primary fact may be a
contentious issue in any given case.
[38] On the one hand, a plaintiff does not obtain knowledge of a primary fact
only once it has all the evidence it needs to prove it in court. It just needs
knowledge of that fact to enable it to start its case, not to finish it ( Nedcor Bank
Bpk v Regering Van Die Republiek Van Suid-Afrika 2001 (1) SA 987 (AD) at [8] to
[10]).
[39] On the other hand, section 12(3) is concerned with knowledge, not
speculation or other unsubstantiated belief. Knowledge of the sort required by
section 12(3) may be gained by direct observation, inference from other facts or by
receiving knowledge of fac ts from others. However, a mere suspicion of facts is
not enough to constitute knowledge of them , as contemplated in section 12(3)
(Gore supra at [19] – [22]).
[40] Geldenhuys v Diedericks 2002 (3) SA 674 (OPD) provides a helpful
illustration of both the extent of knowledge a plaintiff must have of the primary
facts and how such knowledge can be inferred.
[41] In that case the plaintiff farmer sued a motorist for the loss of a bull that the
defendant struck with his car. The farmer did not observe the c ollision and thus
did not have first -hand knowledge of the primary facts regarding the manner in
which the defendant drove and which could be relied upon to support a legal
conclusion of negligence. The Court found that prescription commenced to run
once the farmer had undertaken certain preliminary investigations that enabled
him, amongst other things, to determine the probable view the defendant would
have had as he approached the scene of the collision. Stated differently,
prescription began to run onc e the plaintiff had knowledge of facts from which it
could be inferred that the plaintiff had failed to keep a proper lookout.
[42] Gore was an example of a case where the plaintiff did not have knowledge
of the primary facts as contemplated in section 12(3), despite alleging that he did.
[43] In that matter the plaintiff’ s claim was a case based on fraud. The Supreme
Court of Appeal found that the plaintiff did not have knowledge of that fraud as
required by section 12(3) because the allegation of fraud was based on speculation
of the primary facts underlying it, as opposed to a valid inference.
[44] It follows from this that merely because a plaintiff has pleaded certain facts
at a certain date does not necessarily mean that they have knowledge of those facts
as at that date. The allegation could be based on a suspicio n that they hope to
prove during the litigation process, via mechanisms such as discovery, requests for
trial particulars and cross-examination.
[45] The decision in Links contains dicta in passing suggesting that, at least in
professional negligence cases, prescription will only commence running as
contemplated in section 12(3) when a plaintiff has knowledge of the primary facts,
and that knowledge would reasonably lead them to suspect t hat they had sustained
an injury due to the neglect of another.
[46] At paragraph [45] of Links the Court said the following:
“In a claim for delictual liability based on the Aquilian action,
negligence and causation are essential elements of the cause of action.
Negligence and, as this Court has held, causation have both factual
and legal elements. Until the applicant had knowledge of facts that
would have led him to think that possibly there had been negligence
and that had caused his disability, he lacked knowledge of the
necessary facts contemplated in section 12(3).”
[47] A similar statement is made near the end of paragraph [42] of the Judgment:
“However, in cases of this type, involving professional negligence, the
party relying on prescripti on must at least show that the plaintiff was
in possession of sufficient facts to cause them on reasonable grounds
to think that injuries were due to the fault of the medical staff. Until
there are reasonable grounds for suspecting fault so as to cause th e
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plaintiff to seek further advice, the claimant cannot be said to have
knowledge of the facts from which the debt arises.”
[48] This suggests that, at least in professional negligence cases, the
Constitutional Court was prepared to interpret section 12(3 ) as requiring a creditor
to not only have knowledge of the primary facts, but to also have a reasonable
suspicion of neglect on the part of the debtor. That principle was developed in Le
Roux, where the Constitutional Court held that, at least in cases involving a client
suing their lawyer for malpractice, justice may require that prescription will only
commence to run once the client has knowledge not only of the primary facts, but
also of the legal conclusion that would reveal, or at least give rise to a suspicion of,
neglect on the part of their lawyer.
[49] Links and Le Roux are a reminder that prescription negates section 34 of the
Constitution (see Le Roux at [29]); and that regard must be had to the purpose of
sub-section 12(3) of the Prescription Act when applying it, that being to penalise a
plaintiff who has been guilty of an inordinate delay, not a reasonable and
unintended one. A plaintiff who has knowledge of primary facts but who does not
pursue a debt based on them because they reasonably do not suspect they give rise
to that debt can hardly be described as being guilty of an inordinate delay.
[50] For example, assume a surgeon conducts an operation on a plaintiff using
what any reasonable doctor would know was a manifestly inappropriate piece of
equipment. Assume further that the operation is conducted under local anaesthetic
and the plaintiff personally observes the use of the equipment in question injuring
their person. Such a plaintiff has knowledge of the primary facts from the moment
the operation occurs. However, such a plaintiff might reasonably believe that their
injury was the manifestation of an inherent surgical risk as opposed to a
manifestation of neglect, at least for a period after the operation t akes place. What
I understand Links to say is that in such a case prescription will only commence to
run once the plaintiff reasonably suspects negligence might be present.
[51] The developments of the law in Links and Le Roux do not arise directly in
this case. But they do help to illustrate different components of a section 12(3)
enquiry:
a. Links contemplated the situation where a plaintiff knows the primary
facts (actually or constructively), but does not reasonably suspect neglect
on the part of the defendant. An example is the hypothetical case I have
just postulated.
b. That must be distingui shed from the situation where a plaintiff does not
know the primary facts (actually or constructively), but would
nevertheless be motivated to investigate them based on the suspicion of
neglect revealed by what they do know. Geldenhuys provides an
example of this: When Mr Geldenhuys first found that his cow had been
struck by a motorist, he would not know the primary facts underlying a
finding of neglect on the part of Mr Diedericks. The circumstances were
however such as to raise a suspicion of neglect t hat would motivate a
reasonable person to investigate further. That question might be relevant
in an enquiry as to when Mr Geldenhuys would have procured
constructive knowledge of the primary facts. (As mentioned, the case
was ultimately determined on Mr Geldenhuys having sufficient actual
knowledge of primary facts indicative of neglect, not when he would
have acquired constructive knowledge of them.)
[52] The other requirement of section 12(3) is that a plaintiff must have actual or
constructive knowledge of the identity of the debtor. In my view, such a lack of
knowledge does not only contemplate the situation where a plaintiff has no idea
who the debtor is, but also includes the situation where the plaintiff has identified
several potential debtors b ut is yet to uncover fact s, of the limited substance
contemplated in Nedcor and Geldenhuys, that will enable it to determine which of
those potential debtors is the debtor.
[53] I consider that distinction was recognised in Gericke v Sack 1978 (1) SA 821
(A). In that case the plaintiff had been injured when a speedboat collided with a
jetty at the Vaal dam . In response to a special plea of prescription, the plaintiff
said that she did not know who had been driving the boat until some time after the
incident, and that prescription accordingly did not run until she did. The defendant
contended that even if the plaintiff’s evidence was accepted, she nevertheless knew
the “identity of the debtor ” because it was enough that she had sufficient details
about him to “.. exclude every other person in the world except that debtor ”. The
Court rejected that argument (at 829B-F):
“I am not persuaded that there is any merit in this contention. The Act
provides in express terms that prescription does not begin to run
"until the creditor has knowledge of the identity of the debtor",
not that prescription will begin to run as soon as the creditor has
knowledge of facts or information from which it will be possible for him to
deduce or discover the identity of the debtor. So, for example, he may be in
possession of the debtor's fingerprints and this may enable him to track
down and establish the debtor's identity within a matter of hours or days -
on the other hand he may find himself defeated after months of search. Or
again he may have the registration number of the motor vehicle which has
--
caused him injury; this may lead to speedy identification, but if it is a stolen
vehicle, it may no t. In the present case the appellant was armed with the
knowledge that she was injured by the pilot of a ski -boat - No. 12 - which
was competing in a race held under the auspices of the Loch Vaal Aquatic
Club on 13 February 1971. This information may have assisted her in
establishing the identity of the debtor with little delay; on the other hand
further investigation might have become necessary when she read the
entry form (exh. "C") and found out that there were three persons in the
boat anyone of whom might have been the pilot at the moment of
impact.”
[54] Gericke is also authority for two further principles that pertain to the appeal.
[55] The first concerns when the plaintif f was required to have actual or
constructive knowledge of the primary facts and the identity of Superstrike.
[56] Superstrike alleged that the plaintiff’ s claim prescribed at midnight on 22
January 2019. It was common cause that the prescriptive period was three years
and it thus follows that Superstrike says the plaintiff had or ought to have had
knowledge of its identity and the primary facts on the dat e the plaintiff alleges she
was injured, i.e.: 23 January 2016.
[57] In my view, having pleaded its case that way it is not open for Superstrike to
argue that the plaintiff procured the relevant knowledge (or ought to have done so)
at some date after 23 January 2016 , albeit still more than three years before the
plaintiff caused her joinder application to be served on Superstrike (i.e.: 15 May
2020). I consider that the requirement of holding Superstrike to its pleaded cases is
endorsed in Gericke at 828A-B and in Santam v Ethwar 1999 (2) SA 244 (A) at
256F-G.
[58] The second principle concerns the question of onus. It was common cause
that Superstrike bore the onus to establish that the plaintiff’s claim had prescribed.
As stated above, I understood Mr Stelzner to submit that the onus was relatively
light, given that the plaintiff’s knowledge of the information refe rred to in section
12(3) was best known to her. I accept that proposition as far as it goes. As stated
in Gericke at 827E-F, it is a well-established principle that courts will take
cognizance of the handicap faced by an onus -bearing party where the fact s they
have to establish are within the exclusive knowledge of their opponent. That is a
general proposition, not one limited to prescription cases.
[59] I do however consider that Superstrike precluded itself from relying on that
principle in this matter, given that it agreed on the evidentiary material to be
considered by the Court. Had evidence been led in the ordinary way, and had the
plaintiff declined to testify , Superstrike’s reliance on that principle of evidence
might have been well made. I do not consider that Superstrike can agree to depart
from the ordinary way of leading evidence, and then say complain that it is
handicapped because the facts it has to prove are exclusively within the plaintiff’s
knowledge.
[60] Armed with the abo ve general principles , I turn to an analysis of the
competing contentions of the parties.
[61] A useful starting point is to understand the legal foundation upon which the
plaintiff’s claim rests, as set out in her particulars of claim.
[62] After citing the parties in the ordinary way, there is a heading reading
“Vicarious liability”. Under that heading, and s lightly paraphrased, the plaintiff
goes on to state that the facts extant at all material times included the following:
a. She was a registered first year student of the Academy and a resident
of the ISA Ladies Residence, a residence controlled by one or more of
the defendants.
b. One or more of the defendants introduced a system of clusters of
student residences and private student or ganisations, with the ISA
Ladies Residence forming part of the cluster known as “Validus”.
c. One or more of the defendants were in control of and responsible for
all events and activities of “its students”, and employed or appointed
persons, referred to as “ mentors”, to carry out its/their responsibilities
and to exercise control over its students and student events , including
a welcoming programme compiled by Validus for its first year
students.
d. The mentors who were responsible for and in control of the
welcoming programme acted in the course and scope of their
employment with, or appointment by, the relevant defendant who
employed them.
[63] The particulars of claim go on to explain that:
a. The welcoming programme included an event scheduled between
09h00 and 12h00 on 23 January 2016 and described as “ Kampus
Welwesprogram (mentors and first years visit Coetzenberg dam)”.
b. The plaintiff and other first year students went to the Coetzenberg
dam to attend that event, and did so under the control of certain
mentors.
c. As part of that event, the plaintiff and the other first year students in
attendance were either expected or invited to swing from a rope tied to
a tree near the dam, and to then let go of the rope at the right moment
so as to land in the dam.
d. The plaintiff participated in the aforesaid “ swing-and-fall” activity,
and in doing so injured her spine when she struck a submerged tree
stump, as described at the outset of this judgment.
[64] There is then a heading reading “ The legal duties ”, under wh ich the
following allegation is made:
“When the Plaintiff participated in the dam event as a first year student
under the control and mentorship of the mentors, the Academy and/or
the University and/or Superstrike, represented by the mentors, assumed
responsibility for the Plaintiff’s care and safety, and the relationship
between Plaintiff as a first year student and the Academy and/or the
University and/or Superstrike as the educational authorities imposed
the following duties on the Academy and/or Univer sity and/or
Superstrike:”
[65] Five duties are then set out, including one described “… general duty to take
reasonable care for Plaintiff’s safety, and to exercise reasonable supervision and
control over Plaintiff during the dam event and the swing and fall activity”.
[66] Paragraphs 10 and 11 are headed “ Wrongfulness and negligence” . The
opening sections of those paragraphs read as follows:
“10. Regard being had to the general level of skill and compet ence
possessed and exercised by educational authorities or entities and its
student mentors at the time when Plaintiff was exposed to the dam event
and the swing -and-fall activity, the Academy and/or University and/or
Superstrike knew or ought reasonably t o have been aware of the
following possible risks of injury in the swing-and-fall activity:
…
11. Despite the fact that the Academy and/or University and/or
Superstrike and/or the mentors were aware (or ought reasonably to
have been aware) of the risks, they wrongfully failed to comply with the
legal duties by acting negligently in one or more of the f ollowing
respects:
…”
[67] The particulars conclude with allegations concerning causation and the
quantum of the plaintiff’s damages, which need not be discussed.
[68] In my respectful view, the particulars of claim are not a model of clarity.
[69] While it is apparent that the plaintiff’s claim is advanced in delict, it is not
entirely clear whether she contends that one or more of defendants are liable to her
for their own delicts, whether they are vicariously liable to her for delicts
committed by the mentors, or whether she pursues both such claims.
[70] Be that as it may, and r ead in context, I consider that the plaintiff’s case
advances at least one of the following clams:
a. One or more of the defendants were guilty of conducting the
welcoming programme in a negligent way , which they did via the ir
mentor representatives;
b. One or more of the defendants were guilty of negligently omitting to
take steps to ensure the plaintiff’s safety when she participated in the
welcoming programme (and the swing-and-fall activity in particular ),
with that omission being wrongful given the facts and circumstances
of the case (as contemplated in Country Cloud Trading CC v MEC,
Department of Infrastructure Development 2015 (1) SA 1 (CC) at [20]
– [23]; Minister of Justice and Constitutional Development v X 2015
(1) SA 25 (SCA) at [13]).
c. The mentors who oversaw the swing -and-fall activity acted
negligently when doing so, and one or more of the defendants are
being liable for those delicts because they were committed by the
mentors in the course and scope of their employment with the relevant
defendant(s).
[71] As I understood him, Mr Stelzner submitted that the only primary the
plaintiff needed to know to establish its claim against Superstrike was the
relationship that existed between the plaintiff (as a first year student and resident at
the ISA Ladies Residence) and the controller of the ISA Ladies Residence
(whoever that controller might be).
[72] Stated differently, Superstrike contends it is that relationship that made it
wrongful for Superstrike to negligently omit to take steps to ensure the plaintiff’s
safety during the welcoming programme, and that rendered it vicariously liable for
the delicts of the mentors.
[73] I agree that the plaintiff does rely on the relationship between he r and the
controller of the ISA Ladies Residence to found her claim, at least to some extent.
As indicated above, the fact that the plaintiff was a resident of the ISA Ladies
Residence is expressly pleaded under a section of the particulars of claim heade d
“vicarious liability”. Furthermore, under the section headed “ the legal duties” the
plaintiff avers that certain duties befell Superstrike because of “… the relationship
between Plaintiff as a first year student and … Superstrike as the educational
[authority]”.
[74] My difficulty with the submission is that the relationship between the
plaintiff and the controller of the ISA Ladies Residence is not the only f act the
plaintiff relies upon to support her claim. As I have sought to demonstrate in my
summary of the particulars of claim, she also relies on other grounds, including the
controller of the ISA Ladies Residence also being in control of the welcoming
programme, and being the employer of the mentors who ran it.
[75] As a result of the separation of Superstrike’s special plea, the Court a quo
was called upon to determine the merits of the prescription issue without
determining the merits of the plaintiff’s case. The investigation into the merits
would include a consideration of the facts the plaintiff was able to prove and
whether those were sufficient to burden one or more of th e defendant’s with
liability for the damages she alleges to have suffered.
[76] On my understanding of the particulars of claim , I consider that part of the
enquiry into the merits will include an investigation into whether the controller of a
student residence acts wrongfully i f it negligently fails to take steps to ensure the
safety of resident students while participating in activities such as the welcoming
programme.
[77] Another legal issue to determine may be whether the controller of a
residence is vicariously liable for delicts committed by other s against its residents
(there was a suggestion during the argument that the “ mentors” referred to in the
particulars of claim were all residents of the ISA Ladies Residence, but I am not
sure that fact is established on the papers before us).
[78] If the plaintiff were to succeed solely on those legal propositions, and
subject to what is said below, then it may well be that she had actual knowledge of
all primary facts other than Superstrike’s’ identity at the time she sustained her
injuries.
[79] Be that as it may, it is possible that the mere relationship between the
plaintiff and the controller of the residence will not be sufficient to establish legal
liability on the part of the latter. On the face of it, and without in any way
intending to de cide the issue, I have some doubt that that relationship could
establish Superstrike’s vicarious liability (see: Messina Associated Carriers v
Kleinhaus 2001 (3) SA 868 (SCA) at [15], where the court stated that the enquiry
is whether the relationship betw een the party committing the delict and the party
sought to be held vicariously liable for it is analogous to that between and
employer and employee).
[80] Significantly, it might transpire that legal liability is only established based
on the relationship between the controller of the residence and plaintiff, and
because the controller of the residence also controlled the welcoming programme
and employed the mentors who ran it.
---
[81] While there might be cases where the facts a plaintiff relies on to support a
legal finding of wrongfulness or vicarious liability can be determined without the
need for evidence, I do not think this is one of those cases ( Telematrix (Pty) Ltd
t/a Matrix Vehicle Trac king v Advertising Standards Authority 2006 (1) SA 461
(SCA) at [2]).
[82] For example, had the plaintiff pleaded that Superstrike acted wrongfully by
negligently failing to protect her from harm while she participated in the
welcoming programme because she was a resident there and because the letter “s”
appears twice in the word “Superstrike”, a court would readily be able to dismiss
the second primary fact alleged as being an irrelevant one to the enquiry into
wrongfulness.
[83] In this case, in my view, the position is far from clear, and certainly
questions of wrongfulness will only properly be capable of being determined once
all the evidence is led. Stated differently, at this stage it cannot be determined with
certainty whether the plaintiff will be able to establish wrongfulness based on the
relationship between her and the controller of the residence, or whether she will
also need to establish that the controller of the residence also controlled the
welcoming programme and employed the mentors to run it, or even whether
wrongfulness will not be established, even if all of those elements are established.
[84] What impact does that uncertainty have on the determination of the special
plea of prescription?
[85] This may be an unintended consequence that a separation of issues may
cause (Denel (Edms) Bpk v Vorster 2004 (4) SA 481 (SCA) at [3]). In my view,
the appropriate approach is to proceed on the basis that all of the primary facts
relied on by the pla intiff in her particulars of claim are necessary to establish the
legal conclusions of vicarious and delictual liability she pursues against
Superstrike.
[86] I arrive at that view not only because I am required to have regard to the
pleadings for purposes of determining the prescription issue, but also because that
is the claim Superstrike contends has prescribed. Furthermore, the agreement
between the parties as to how the prescription issue would be dealt with may have
been influenced by what had bee n pleaded. Although I do not know how the
negotiations occurred, the plaintiff might only have been prepared to agree to the
separation of the prescription issue on the premise that her claims as alleged
prescribed at midnight on 22 January 2019. She mig ht not have been prepared to
agree to the separation on the basis that her claims prescribed at some later date, or
that those claims could succeed on lesser facts than those pleaded by her. I also
consider a defence of prescription must be established on the basis it is pleaded
given the constitutional implications of the concept.
[87] My approach also does not mean that a plaintiff in a case such as this can
defeat a special plea of prescription by overstating the primary facts underlying a
conclusion of wrongfulness. If a defendant considers that such an overstatement
has occurred and cannot be dealt with along the lines contemplat ed in [82] above,
that defendant should not seek to have the special plea of prescription separated out
for early determination. Indeed, such a separation, if r esisted, might well be
refused as being inconvenient. Rather, such a defendant should deal with the
question of prescription together with the merits , at which stage the primary facts
underlying the conclusion of wrongfulness will be conclusively determined.
[88] In the circumstances, I conclude that for Superstrike to succeed with its
special plea of prescription, it needed to establish that the plaintiff had actual or
constructive knowledge of at least the following primary facts on 23 January 2016:
a. That Superstrike controlled the welcoming programme.
b. That Superstrike employed or appointed the mentors who ran the
welcoming programme.
[89] To the extent I correctly understood Mr Stelzner to submit that those are
legal conclusions as opposed to primary facts, I respectfully disagree with him.
[90] In my view, the question of whether Superstrike had control over the
welcoming event is a question of fact. Such control might be established by
showing that Superstrike’s representatives had meetings to discuss when and
where it would take place, and then took steps to implement those decisions and
cause the event to go ahead. As I have shown in the discussion above, t he fact of
control might give rise to the legal conclusion that Superstrike acted wrongfully by
failing to take reasonable steps to ensure that those participating in the welcoming
event were not injured.
[91] I consider that the position is similar regarding the control or employment of
the mentors. The conclusion of a contract is a factual question. The legal
consequences of it are questions of law. If a mentor were to say “ I got a job with
Superstrike today”, that would be a statement of fact that some sort of interaction
had ta ken place between the mentor and Superstrike (and which might have
included handshakes or signatures), from which the mentor considered a contract
had arisen. That Superstrike might be vicariously liable for certain delicts
committed by that mentor is a l egal conclusion flowing from the nature of the
contract in question.
[92] If the plaintiff was unaware of the primary facts identified in [88] above as
at 23 January 2016, then the question of whether she actually or constructively
knew Superstrike’s identity becomes an irrelevant consideration. That is because
section 12(3) is conjunctive, in the sense that prescription commences to run once
a creditor knows the identity of the debtor and the facts from which the debt arises.
[93] The Court a quo found that on the evidence before it the plaintiff did not
have actual or constructive knowledge of those contentious primary facts. I
respectively agree with its analysis of that evidence and will thus limit myself to
making only a few observations here.
[94] First, I consider that the document described as the programme for the 2016
welcoming programme (annexure POC1 to the particulars of claim) leaves it
entirely uncertain as to the identity of the organiser of the welcoming event or the
employer of the mentors. At best, it served to reduce the potential debtors to a list
of three, namely, the “ controller” of the Academy, the “ controller” of the ISA
Ladies Residence, or the University. Further investigation would be required to
determine which of those three was the person who had control of the welcoming
programme and/or employed the mentors.
[95] While Superstrike correctly points out that the content of that document
begins with th e heading “ Algemente doelwitte van ISA Dameskoshuis
verwelkomingsprogram” (“ General purpose of the ISA Ladies Residence
welcoming programme ”), the first word in bold print and capital letters on the
cover page is “VALIDUS”. Validus is pleaded to be a clus ter of student residences
--
and private student organisations. There are also references to the Academy in the
body of the document. Further uncertainty is introduced by the second page ,
which includes the following text:
“Die Universiteit se doelwit met die Verwelkomingsprogram is om
nuwelinge ’n onvergeetlikeer varingte gesaam met hulle mede student
een dat dit op ’n georganiseerde manier gereel is sodat die wat in beheer
is, antwoordelikheid neem vir die veiligheid van die nuwelinge.”
(Loosely translated: The University's goal of the welcoming program is
to provide a memorable experience for new students and their fellow,
and to ensure that it is organized so that those in charge take
responsibility for the safety of those new students.)
[96] Secondly, and even if the document is interpreted as indicating that the
welcoming programme was a programme of the ISA Ladies Residence and thus
under its control, for Superstrike to succeed it would need to show that the plaintiff
did or ought to have come to that conclusion on the day she sustained her injury.
There was no evidence that she did so, and I do not think it can be said that she
acted unreasonably by not returning from the Coetzenberg Dam , allegedly having
sustained an injury to her spine, and started scrutini sing documents in her
possession (if it indeed the document was in her possession at the time ) in order to
ascertain who organised the welcoming programme and who employed the
mentors who ran it.
[97] Thirdly, and even if Superstrike had formulated its case on the basis that
prescription commenced running at some date in excess of three years from the
date the joinder application was served on it, regard must be had to the following
statement as alleged in the plaintiff’s founding affidavit in that application ( an
affidavit deposed to on 12 May 2020 by the plaintiff’s attorney):
“At this stage there is still so me uncertainty as to which of First and Second
(and now also Third) Respondents controlled the student activities of the
students who resided at ISA Ladies Residence at the time, or employed
and/or controlled the mentors.”
[98] That stated lack of knowle dge was not contested by Superstrike. That is
perhaps not surprising given the disputes on the pleadings regarding the
contentious primary facts. Superstrike also did it say that it was unreasonable for
the plaintiff not to have had knowledge of those facts, even at the time the affidavit
was deposed to. On the contrary, Superstrike seemed to accept that the plaintiff’s
uncertainty existed. T he relevant extract o f the Superstrike’s answering affidavit,
deposed to by its attorney, reads as follows:
“It is noted that there is still uncertainty as to who controlled the student
activities or the students who resided at ISA Ladies Residence at the time or
employed and/or controlled the mentors.
That is however the Applicant’s problem and has nothing to do with this
application.”
[99] To my mind, and on the evidence we are to have regard to when determining
the special plea, even by the time the joinder application w as served the plaintiff
was, at best, in a position where she had narrowed her potential debtors down to
three people, namely, the Academy (as the controller of the ISA Academy) , the
University (as the controller of the University), or Superstrike (as the controller of
the ISA Ladies Residence, and whom the plaintiff had previously thought was also
the Academy).
[100] In that respect I consider that the plaintiff was in a position similar to that
described in the quotation from Gericke at [53] above , which contemplated the
plaintiff in that case having an entry form indicating three potential pilots of the
speedboat that struck the jetty, and needing to undertake further investigations to
identify which one injured her before she could be said to have knowledge of the
one who injured her.
[101] I stress that the evidential conclusions I have drawn are based on the agreed
material available. Had oral evidence been led by the parties, a different picture
might have emerged. Conceivably, cross-examination of the plaintiff might have
revealed that she was well aware that the welcoming event was organised by the
ISA Ladies Residence and that it engaged the mentors to run it. I do not think that
it is open for me to speculate in that regard. Rather, I consider I am bound to
respect the agreement between the parties , and must assess the issue on the
evidence made available. I have already stated why I do not consider that
Superstrike can seek to ease its onus on the basis that the facts it needed to prove
were within the plaintiff’s knowledge.
[102] For all of the above reasons, I consider that the Court a quo was correct both
in its determination that the contentious primary facts were indeed primary facts,
and that it correctly concluded that Superstrike did not discharge its onus in
showing that the plaintiff was aware o f them as at 23 January 2016. Had I been in
the majority I would thus have dismissed the appeal.
[103] I have had the benefit and pleasure of considering the majority Judgment
penned by my learned sister Pangarker J before finalising this judgment. Why I
respectfully differ from the majority view is hopefully apparent from the reasoning
set out above, but I would make the following points in closing.
[104] The majority appears to proceed on the basis that , because as at December
2019 the plaintiff was able to articulate particulars of claim against the Academy
when she considered it controlled the ISA Residence, she would also have been
able to do so vis-à-vis Superstrike had she correctly identified it as being in control
of that residence. Thus the only question is whether the plaintiff did or ought to
have realised that Superstrike controlled the ISA Ladies Residence.
[105] My difficulty with that approach is threefold.
[106] First, we are concerned with the plaintiff’s knowledge as a 23 January 2016.
What she may have known in December 2019 is a diversion, at least in the context
of the pleaded case.
[107] Secondly, and even if it were appropriate to assess the plaintiff’s knowledge
as at December 2019, the mere fact that the plaintiff could plead a case at that date
does not necessarily mean she knew the primary facts underlying it. As Gore
shows, a plaintiff might speculate when preparing their particulars of claim. Stated
differently, a pleaded case should not necessarily be equated with a plaintiff having
actual knowledge of those pleaded facts, as contemplated in section 12(3).
[108] Thirdly the undisputed evidence was that the plaintiff was unaware of which
of the Academy, the University or Superstrike had co ntrol of the welcoming
programme and employed the mentors, at least at the time of her joinder
application. I do not consider it is enough for the plaintiff to merely have been able
to identify Superstrike as a potential debtor for prescription to start running.
[109] I appreciate that in a complex world a plaintiff might experience difficulty in
clarifying facts necessary to establish which of several potential debtors is /are
indebted to her. In a delictual claim for personal injuries, s uch a plaintiff may be
well-advised to sue all the potential debtors she has identified within three -years
elapsing from the date of loss . If she does not she may open herself up to
interrogation about what inv estigations she ought to have undertaken and what
information they might have yielded. That might have been the plaintiff’s fate in
this case, but the agreed way in which t he evidence was presented meant that it
was not, in my respectful view.
[110] For instance, we have no idea what investigations (if any) the plaintiff
undertook to determine who controlled the welcoming programme and/or
employed the mentors , what information those investigations turned up , or what
any investigations she did not pursue would have turned up. Without the benefit of
that evidence I do not think one can conclude that she ought to have determined it
was Superstrike as opposed to one of the other potential defendants she identified.
That would be the case even if the Academy did in fact control the ISA Ladies
Residence, as the plaintiff originally thought it did. Her lack of knowledge as to
who controlled the residence (which mig ht be unacceptable for the reasons given
by the majority) is distinct from her lack of knowledge as to who controlled the
welcoming event and employed the mentors.
[111] Perhaps a more fundamental difference between my view and that of the
majority concerns our respective approaches to prescription.
[112] A successful plea of prescription means that a plaintiff is no longer able to
able to pursue a debtor for a debt, even if it is for a significant amount and
otherwise undisputed. Such a result may be justified where a plaintiff has been
guilty of an inordinate delay, not because there must be a punishment for tardiness
but because there must be a finality to litigation . A debtor, especially one who
disputes their indebtedness, should not be left in a state of uncertainty for an
unduly long period. But that justification must have limits, especially seeing that
the remedy of prescription has constitutional implications.
[113] I thus consider that a defendant who raises prescription should only succeed
if they discharge their onus and establish the defence squarely on the basis it was
pleaded. I also understand that to be the law as laid down in Gericke and Ethwar.
I do not consider that Superstrike achieved that threshold in this case.
_____________________________________
A MORRISSEY
ACTING JUDGE OF THE HIGH COURT
PANGARKER, J (NUKU, J concurring)
[114] I have had the pleasure of reading the judgment of Morrissey AJ (the
minority) and while I agree with his chronology of litigation, the summary of facts
and discussion of legal principles, I respectfully part ways with him on the issue of
deemed knowledge of the identity of the debtor as referred to in section 12(3) of
the Prescription Act, his conclusion and order. So as not to repeat what has already
been set out articulately in the minority judgment, this judgment does not traverse
aspects already addres sed. Rather, it hopes to succinctly address the areas of
difference.
[115] The issue in the appeal is a narrow one: whether the respondent is deemed
to have had knowledge of the identity of Superstrike, the third defendant . To
answer that question requir es the court to cons ider whether the respondent would
have acquired such knowledge had she exercised reasonable care and based on
information she had at the time of either the incident giving rise to the claim or at
the time she instituted her claim. I accept from the facts that the matter before the
Court a quo did not turn on the respondent’s actual knowledge of the identity of
Superstrike.
[116] The first important aspect is to remind ourselves of the test applicable in
establishing the identity of the debtor, as required by section 12(3) and the onus
attached to it. In Gericke v Sack1, the Appellate Division answered the question as
follows: in respect of obtaining the identity of the debtor in section 12(3), one must
have regard to the particular circumstances of each case, and there should be
sufficient information for the creditor to be able to identify the debtor by name and
address. The Appellate Div ision, as correctly argued by counsel for the appellant,
made it clear that the onus was on the debtor (defendant) to show on the evidence
when the creditor (plaintiff) learned or was deemed to have learned of the debtor’s
identity2.
1 1978 (1) SA 821 (A) p830
2 Gericke supra, p822
[117] This onus is described as a light one and rests on the debtor/third defendant,
Superstrike. As guidance, the Appellate Division’s conclusion in Gericke supra is
apt:
“The Act merely requires the creditor to seek such knowledge by the
exercise of reasonable care; she is not required to issue summons - she is
given a generous three years in which to institute proceedings. All that she is
called on to do is to ask one question to establish identity and not to be
content to p lay a purely passive role. If she could have acquired this
knowledge by acting diligently, her inertia, ineptitude or indifference will
not excuse her delay. The creditor who fails to exercise the reasonable care
prescribed by the Act must pay the penalty f or he is then deemed to have
acquired the knowledge necessary for the debt to become due and for
prescription to begin to run.”
[118] The submission by the appellant’s counsel is that, having regard to the light
onus referred to in Gericke supra, what was required was for Superstrike to show
that at the time of instructing her attorneys in the action, the respondent (as
plaintiff) knew of the identity of Superstrike. The appellant’s counsel submitted
that the respondent was negligent in not attaching the written Memorandum of
Agreement concluded between her and Superstrike on 15 January 2016, to her
pleadings as amended3.
[119] It was further submitted on behalf of the appellant that the Court a quo
erred when it held that what was required of the respondent was knowledge of the
3 Annexure P1 attached to first defendant’s special plea of non-joinder
identities of the mentors and Superstrike necessary for vicarious liability 4.
Knowledge of the relationship between the mentors and Superstrike wa s not
needed in order to establish when prescription started running – what was required
was knowledge of the debtor’s identity and it was submitted that the Court a quo’s
test which it had applied in its judgment, was incorrect.
[120] The counter argument of the respondent was that the reason why no
Memorandum of Agreement was attached to her Particulars of Claim was because
she was unaware of it. Furthermore, with reference to the evidence before the
Court a quo , it was submitted that the respondent act ed reasonably when one
considers that she was a first year student in early 2016 and until July/August 2020
when she consulted with her legal representatives, she had no knowledge of the
existence and involvement of Superstrike in relation to her claim aga inst the Isa
Carstens Academy and University of Stellenbosch. As for the Memorandum, the
respondent aligns herself with the finding of the Court a quo that the document
does no more than set out the terms on which the respondent leased a room at the
Academy from Superstrike.
[121] Having considered the judgment of the Court a quo and the minority
judgment, the problematic issue is that the Court a quo’s judgment does not
address the question as to whether the respondent had deemed or constructive
knowledge of the identity of Superstrike. In my consideration of the issue, I refer
to Le Roux and Another v Johannes G Coetzee & Seuns and Another 5, where
Kollapen J writing for the Constitutional Court majority, described deemed
4 Judgment, para [44] – [51]
5 [2023] ZACC 46 para [40]
knowledge as knowledge which “the creditor could have acquired… by exercising
reasonable care”. Referencing Brand v Williams6, a failure to exercise reasonable
care within the meaning of section 12(3) of the Act, would include a consideration
of all the circumstances relevant to the respondent’s conduct7.
[122] Section 12(3) of the Act stipulates that the knowledge which a creditor,
such as the respondent, requires is knowledge of the facts from which the debt
arises, and not knowledge of legal opinion or whether the respondent has a legal
remedy8. It was thus no t incumbent that the respondent in this matter was required
to have knowledge that/whether Superstrike was the legal entity or juristic person
in control of the students’ welcoming programme and/or that it employed the
mentors who were responsible for arra nging the event at the dam. I agree with the
appellant’s view, therefore, that the findings of the Court a quo that it was unclear
from the welcoming programme and Memorandum of Agreement that Superstrike
was the entity in control of the ladies’ student ac commodation, the event, and the
mentors, were unnecessary and amounted to the incorrect test. This amounted to a
legal conclusion as opposed to a question of fact.
[123] Further, the Court a quo misapplied the test and elevated knowledge of the
facts from which the debt arises to knowledge of the legal relationship between the
other defendants and Superstrike, and the relationship between Superstrike and the
mentors9. In my view, it was unnecessary for the Court a quo to have explored and
made findings on Superstrike’s vicarious liability as this was not required in the
6 1988 (3) SA 908 (C)
7 Le Roux supra, para [41]
8 Mtokonya v Minister of Police 2018 (5) SA 22 (CC) para [37]
9 Judgment, para [47]-[67]
determination of the special plea of prescription 10. For prescription to commence ,
knowledge of the relationship between the mentors and Superstrike was not
needed11.
[124] The question then a rises whether, in the context of the particular
circumstances, there was sufficient available information for the respondent, as
creditor, to be able to identify Superstrike as a /the debtor in view of the debt
which arose? With reference to Gericke supra, this question would entail a
determination as to whether, on the available evidence before the Court a quo, the
respondent played a passive role or whether she acted diligently and with
reasonable care in obtaining knowledge of the identity of Superstrike. The exercise
requires an objective approach when considering the available evidence.
[125] The available evidence was the welcoming programme , which is attached
to the Particulars of Claim 12 and the Memorandum of Agreement (lease) , which
includes the Indemnity, Annexure B, the latter document produced by the Isa
Carstens Academy in the Court a quo. At paragraphs [60] to [63] o f the judgment,
the Court a quo thoroughly explored the welcoming programme and correctly
observed that the document made no reference to Superstrike.
[129] It was common cause between the parties that the respondent did not
introduce the Memorandum or th e Indemnity attached to the lease agreement.
When confronted with the Memorandum in the Academy’s Special Plea of Non -
10 Judgment, para [64]
11 See Mtokonya supra, para [24]
12 Prior to the amendment which added Superstrike as third defendant
Joinder13, the respondent’s response was that at the time of instituting the action
against the Academy and University, she was unaware of the Memorandum’s
existence. Furthermore, on perusal of the Memorandum, the respondent’s memory
was refreshed in that she realised that she had signed the Memorandum on 15
January 2016.
[130] The respondent’s further explanation was tha t her father had co -signed the
Memorandum as parent/legal guardian and co -principal debtor on the same date,
while the Indemnity was signed by her late mother on 18 January 2016, three days
after she (the respondent) signed the written Memorandum. For the period from the
end of 2015 to the beginning of 2016, when she applied for registration as a first -
year student, until the end of July 2020/August 2021, when she consulted with
legal representatives, the respondent had no knowledge of the existence of
Superstrike nor its involvement in her case.
[131] She explained that her father oversaw the administration related to her
studies, including the financial side, and he simply approached her to sign
documents, and she initialled the Memorandum, at his request , without reading the
same. The documents referred to above included the first -year student
programmes. She could not recall whether she was present when her late mother
signed the Indemnity but stated that her mother signed the document without
discussing it with her and without her knowledge and consent.
[132] The Court a quo proceeded to find that Superstrike’s arguments do not
accord with the undisputed averments in the respondent’s supplementary affidavit.
This finding was based on the view that Supe rstrike failed to set up any evidence
13 Dated April 2019
either in the Special Plea or the Joinder application, to gainsay the respondent’s
evidence and version. In the absence of independent evidence presented by
Superstrike, or a striking out of the supplementary affidavit , alternatively an
application in terms of Rule 6(5)(e), the Court a quo accepted the respondent’s
submissions regarding the nature and extent of her knowledge of the
Memorandum, its consent and welcoming program when her action was instituted,
as uncontes ted. The Court a quo accepted the evidence and found that the
respondent was unaware of the content of these two documents at the time of the
incident or when the action was instituted and only had sight thereof at the end of
July 2020.
[133] The Court a quo was also critical of Superstrike’s documents attached to its
answering affidavit in the Joinder application, and stated that there was no
indication in the Google search result of Superstrike that it was the legal entity
through which accommodation wa s provided at the Academy. The Court a quo
further questioned the fact that none of the documents indicated the role played by
Superstrike, if any, in relation to student activities at the accommodation, the
employment and control of mentors , or that the respondent could have obtained
such knowledge with reasonable care.
[134] The welcoming program refers to the Isa Carstens Academy and identifies
the mentors involved in, inter alia , the dam event. That being the case, the
evidence indicates that the respondent was aware of the identity of the Academy
prior to the commencement of 2016, an d/or on the date of the incident, 23 January
2016. She also knew of the identity of the University, which was the party
responsible for the academic program.
[135] In my view, the respondent was not required in terms of section 12(3) of
the Act to have kn owledge of the legal relationships between the Academy, the
University, Superstrike, and the mentors. According to Gericke supra14, the
respondent was required to ask one question to establish the identity of who was in
charge of the Academy and was not to be/should not have been content to be
supine.
[136] Considering the above, the first point to make is that the welcoming
programme was that of the Academy , and this is clear from the document and a
fact known by the respondent. She was also aware that the program and event at
the dam were run by mentors, wh o were also resident at or part of the Academy.
She also knew - and this is pleaded – of the relationship between the mentors and
the Academy. It must also have been clear to the respondent that the welcoming
program and dam event were not run or part of the University’s academic program.
[137] It is common cause that the respondent signed the Memorandum, that she
was 19 years old and failed to attach it to her summons. Ex facie the Memorandum,
it states that it is entered into between Superstrike Investme nts 121 (Pty) Limited
trading as “Isa Dameskoshuis” and the respondent, who leased accommodation at a
monthly rate. Superstrike t/a Isa Carstens Academy is referred to as the supplier of
“the room” at “the premises”, Isa Dameskoshuis, 3 […] P[…] R[…] Street,
Stellenbosch, 7600. Objectively considered, an ordinary reading of these details
would cause any reader to realise that the address of “the premises” and that of the
supplier, Superstrike, was identical.
14 Page 832
[138] In those circumstances, a reader of the welcoming program and the
Memorandum of Agreement (supply of accommodation) would have realised that
Superstrike was responsible for the accommodation, the Academy and the
welcoming program. Thus, the respondent’s explanation that her father oversaw
the administration of her studies (which we accept) and that she simply signed the
documents without question does not assist the respondent. To clarify, there is no
reasonable explanation why the respondent would have no knowledge of the
Memorandum for almost four years and then, when confronted with the document
during proceedings in the Court a quo, she then refreshes her memory. I say this
because when one has regard to the chronology of events and litigation, it is
notable that the Memorandum of Agreement was signed about 8 days before the
incident at the dam, which was more or less at the same time that the welcoming
program was made available to her.
[139] Furthermore, the respondent’s explanation of signing documents without
reading same and simply e ntrusting everything to her father is, with respect,
indicative of the passive role which the Appellate Division in Gericke supra
warned against. The identity of the party to the Memorandum of lease, which was
in control of or supplied the accommodation wh ere the respondent as a first -year
student resided and the signature of the Indemnity by her mother, are all issues of
fact.
[140] Given what is stated earlier, the respondent could easily have established
the following facts: that the two contemporaneo us documents, the Memorandum
and the welcoming program, plus the Indemnity would lead to a conclusion that
Superstrike was the entity responsible for the ladies’ residence, and thus the
welcoming program, at the time her claim arose. Regarding the accommodation
application, the document bears both Isa Dameskoshuis and Superstrike’s names
and details. Even excluding the Indemnity, which she indicated her late mother did
not disclose to her, my view would still be the same : that the documents at her
disposal and/or in her possession were sufficient for the respondent to determine
the identity of Superstrike as a potential debtor for her claim.
[141] The respondent’s actual knowledge was, in the circumstances of the
litigation and proceedings, not required. Section 12(3) permits deemed or
constructive knowledge of a debtor’s identity, and this would suffice for
prescription to start running. In my view the findings of the Court a quo are not
sustainable because had the respondent, armed with the aforementio ned
documents, exercised reasonable care and made the necessary enquiries, she would
have been able to obtain knowledge of the debtor, Superstrike. I also agree with the
appellant’s counsel that the focus of the case in the special plea raised by the
appellant, should have been the deeming provision in section 12(3) ; instead the
Court a quo focused on actual knowledge of the identity of Superstrike and
knowledge of the law and legal conclusions on vicarious liability.
[142] In my view, and with reference to Gericke supra and Macleod v
Kweyiya15, the respondent was negligent in failing to request and peruse the
Memorandum of Agreement and also fai ling to obtain the Indemnity from her
mother, because if she had, she would have realised that Superstrike was in control
of the ladies’ residence. Furthermore, she was also negligent in failing to simply
15 2013 (6) SA 1 (SCA) para [14]-[15]
ask the question about Superstrike when she signed the Memorandum . In these
circumstances, the respondent would have established that Superstrike was a
potential debtor.
[143] Having regard to the submissions, I agree with the appellant’s counsel that
the judgment of the Court a quo paid little or no attention to the deeming provision
in section 12(3) of the Act. Had the section been properly considered and as the
appellant only bore a light onus, the Court a quo should have objectively found
that had she taken reasonable steps, the respondent could (and/ or should) have
established by the time she instituted action against the Academy and University,
that Superstrike was itself a potential debtor in respect of her debt.
[144] The Court a quo should also have found that the respondent was deemed to
have knowledge of the facts needed to identify Superstrike as a defendant at least
at the time of institution of the action in December 2018, against the other
defendants. In addition, the Court a quo was also incorrect in finding that the
respondent was required to know of the appellant’s control over student activities
at the Academy.
[145] In view of the above findings and that the respondent’s cause of action
arose on 23 January 2016, having regard to section 11(d) of the Act, the claim
would have prescribed by midnight on 22 January 2019. At least by the time of
service (or institution) of the Summons on the Academy on 10 December 2018, the
respondent had deemed knowledge of the identity of the app ellant insofar as she
could have gained such knowledge through the exercise of reasonable care.
[146] The Summons was not served on the appellant. Rather, the Summons was
served on Superstrike after the joinder application on 26 January 2022. Clearly, the
respondent had not issued Summons against the appellant by midnight of 22
January 2019. In such circum stances, the respondent’s claim against the appellant
prescribed and the Court a quo should have upheld the special plea of prescription.
[147] In the circumstances, I find that the Court a quo erred and thus respectfully
differ from the findings and con clusion made in the minority judgment. The result
of my finding that the special plea should have been upheld would mean that the
respondent’s claim against Superstrike falls to be dismissed.
Order
[148] In the result, I propose the following order be made:
1. The appeal is upheld with costs, such costs to include the costs of two
counsel, with senior counsel’s costs to be taxed on Scale C and junior
counsel’s costs to be taxed on Scale B.
2. The order of the Court a quo is set aside and replaced as follows:
a. The special plea is upheld with costs, such costs to include costs of
counsel on Scale B.
b. The plaintiff’s claim against the third defendant in case number
22436/2018 is dismissed with costs.
_____________________________
M PANGARKER
JUDGE OF THE HIGH COURT
I agree and it is so ordered.
_____________________________
L G NUKU
JUDGE OF THE HIGH COURT
Appearances
For appellant: RGL Stelzner SC with H Rademeyer
Instructed by: Kluver Markotter Inc.
Stellenbosch
For respondent: JJ Botha SC with S Botha
Instructed by: DSC Attorneys
Cape Town