Off-Beat Holiday Club and Another v Sanbonani Holiday Spa Shareblock Limited and Others (CCT106/16) [2017] ZACC 15; 2017 (7) BCLR 916 (CC); 2017 (5) SA 9 (CC) (23 May 2017)

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[2017] ZACC 15
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Off-Beat Holiday Club and Another v Sanbonani Holiday Spa Shareblock Limited and Others (CCT106/16) [2017] ZACC 15; 2017 (7) BCLR 916 (CC); 2017 (5) SA 9 (CC) (23 May 2017)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT 106/16
In the matter
between:
OFF-BEAT HOLIDAY
CLUB
First Applicant
FLEXI HOLIDAY
CLUB
Second Applicant
and
SANBONANI HOLIDAY SPA
SHAREBLOCK
LIMITED
First Respondent
SANBONANI
DEVELOPMENT
LIMITED
Second Respondent
HANS MICHAEL
HARRI
Third Respondent
HANS MICHAEL HARRI
N.O.
Fourth Respondent
HELLEN DUPORETHA
HARRY
N.O.
Fifth Respondent
VINCENT
CHRISTOPHER CALACA
N.O.
Sixth Respondent
SANBONANI HOTEL
MANAGEMENT
(PTY)
LIMITED
Seventh Respondent
REGISTRAR OF
COMPANIES
Eighth Respondent
Neutral
citation:
Off-Beat
Holiday Club and Another v Sanbonani Holiday Spa Shareblock Limited
and Others
[2017] ZACC 15
Coram:
Nkabinde ACJ, Cameron J, Froneman J, Jafta J,
Khampepe J, Madlanga J, Mbha AJ, Mhlantla J, Musi AJ and Zondo J
Judgments:
Mhlantla J (first judgment/majority): [1] to [56]
Froneman J (second judgment): [57] to [97]
Madlanga J (third judgment): [98] to [108]
Heard on:
29 November 2016
Decided on:
23 May 2017
Summary:
Prescription — claims brought
under section 252 of the Companies Act 61 of 1973 do not constitute
“debts” in terms
of the
Prescription Act 68 of 1969
—
matter remitted to High Court for consideration of
section 252
claim
ORDER
On appeal from the Supreme
Court of Appeal (hearing an appeal from the High Court of South
Africa, Gauteng Division, Pretoria):
1.
The applicants are granted leave to appeal
against that part of the judgment and order of the Supreme Court of
Appeal that held
that their claim located in section 252 of the
Companies Act 61 of 1973 had prescribed.
2.
The appeal against the order of the Supreme
Court of Appeal relating to the dismissal of the section 252 relief
is upheld.
3.
The order of the Supreme Court of Appeal
that relates to a claim brought under section 252 of the Companies
Act is set aside and
replaced with:
“
(a)
The appeal against the order of the High Court relating to the claim
brought under section 252 of the
Companies Act is upheld.
(b)
The order of the High Court relating to the claim brought under
section 252 of the Companies Act is
hereby set aside and replaced
with the following:
(i)
It is declared that a claim brought under section 252 of the
Companies Act 61 of 1973
does not constitute a debt in terms of the
Prescription Act 68 of 1969.
(ii)
The matter is postponed
sine die
to enable the applicants to
enrol the matter for the adjudication of the merits of the claims in
terms of section 252 of the Companies
Act 61 of 1973.
(iii)
The issue of costs is reserved.”
4.
The respondents must pay the applicants’
costs in this Court and in the Supreme Court of Appeal, including the
costs of two
counsel.
JUDGMENT
MHLANTLA J
(Nkabinde ACJ, Cameron J, Jafta J, Khampepe J, and Zondo J
concurring):
Introduction
[1]
This matter comes before us as an
application for leave to appeal against a decision of the Supreme
Court of Appeal (SCA).
[1]
The applicants seek to challenge that portion of the SCA’s
conclusion that their claim located in section 252 of the
Companies
Act
[2]
had prescribed.  The thrust of their charge is that the
reasoning of the SCA is inconsistent with the approach of this Court

in
Makate
.
[3]
This inconsistency, they argue, warrants this Court’s
intervention.
Factual background
[2]
The dispute before this Court is a
narrow one and brevity is necessary to capture those facts that are
pertinent to its resolution.
At the heart of the parties’
acrimony is the first respondent, Sanbonani Holiday Spa Shareblock
Limited (Shareblock).
Shareblock was registered and
incorporated as a share block company as defined in the Share Blocks
Control Act
[4]
on 30 September 1987.  This company operates a share block
scheme in Hazyview (Property) that was developed by the second

respondent, Sanbonani Development Limited (Development).
[3]
The original investor and
controlling mind of both Shareblock and Development is the third
respondent, Hans Michael Harri (Mr Harri).
Through his personal
shares, the Duleda Family Trust (Trust), of which Mr Harri is a
trustee, and his daughters, who are
beneficiaries of the Trust, Mr
Harri owns 80% of Development’s shares.
[5]
Combined with his personal shares in Shareblock, Mr Harri has
the largest share in the company and owns 46.7% of Shareblock’s

shares.
[4]
The applicants are two timeshare
clubs, Off-Beat Holiday Club and Flexi Holiday Club (the
Clubs).  They both form part
of the Club Leisure Group, which
supports this application.  In 1991, the Clubs became minority
shareholders in Shareblock.
Together, and through agreements
with the Club Leisure Group, the Clubs effectively control 29.14 % of
the shareholding in Shareblock.
[5]
In 1988, Shareblock, following a
special general meeting, amended its original articles of
association.  A continuous right
was conferred upon Development
to use the area on the Property demarcated as common facilities.
Further, Development was
given an unlimited discretion to develop a
resort as a timeshare holiday establishment, including the right to
allocate different
numbers of shares to different share blocks.
Development accordingly commenced building the resort consisting of
chalets
and a hotel on the Property at the cost of R40 million.
The hotel was completed in 1990.  The seventh respondent,
Sanbonani
Hotel Management Propriety Limited, conducts a hotel and
restaurant business at the hotel under a lease concluded with the
Trust.
[6]
In 1999, disputes arose about the
manner in which Shareblock was run and whether Mr Harri, as the
controlling mind of Shareblock
and Development, exercised improper
influence over Shareblock to its detriment.  The Clubs
identified two triggering acts.
First, they took issue with a
VAT refund being paid to Development on Mr Harri’s instruction,
despite the Receiver of Revenue
having indicated that the refund was
due to Shareblock.  Second, they argued that land earmarked for
the common use of all
Shareblock members was appropriated by Mr
Harri, Development and the Trust.
[7]
On 18 May 2000, these disputes were
deemed resolved by concluding a settlement agreement.  The Clubs
were not party to this
agreement.  The agreement required that
Shareblock’s share block scheme be converted to a sectional
title scheme according
to which Shareblock would be the owner by 31
December 2000.  This did not occur.
[8]
Subsequent disputes again arose in
2004 regarding the composition of the board of directors of
Shareblock.  Mr Harri gave notice
of a shareholders’
meeting to remove the Clubs’ representative directors on
Shareblock’s board of directors.
In response, the Clubs
launched an application in the High Court of South Africa,
KwaZulu-Natal Local Division, Durban to prevent
Shareblock’s
shareholders, Development and the Trust from voting with certain of
their shares at the shareholders’
meeting.  The Clubs’
application also threatened to seek the expungement of these disputed
shares in the amended articles
of Shareblock and to appoint a curator
under derivative action proceedings instituted in terms of section
266 of the Companies
Act.  The 2004 application was dismissed.
Nothing of significance occurred until October 2008 when the
Clubs launched
the proceedings that are the subject of the present
application for leave to appeal, in the High Court of South Africa,
Gauteng
Division, Pretoria (High Court).
Litigation history
High Court
[9]
The matter came before Bertelsmann
J.
[6]
The Clubs claimed two broad categories of relief.  The first was
in terms of section 252
[7]
in which the Clubs sought a declarator that the creation and
allocation of the shares were invalid and that the offending articles

were liable to be cancelled.  The second claim was under
section 266
[8]
of the Companies Act (the derivative action).  The respondents
submitted that the Clubs’ section 252 claim had prescribed
as
it constituted a “debt” for purposes of
sections 11
and
12
of the
Prescription Act,
[9
]
and so too the
section 266
claim.
[10]
The High Court applied
Koster
,
[10]
a case where liquidators sought to set aside, under section 32 of the
Insolvency Act,
[11]
dispositions made before the liquidation of a close corporation and
where it was held that a liquidator’s right to institute
a
claim setting aside an impeachable transaction constitutes a “debt”
for purposes of the Act.  The High Court
thus held that the
Clubs’ section 252 claim fell into the same category as the
liquidator’s right to enforce an impeachable
transaction under
the Insolvency Act.  The Court concluded that the claims
had prima facie prescribed as the Clubs had
had knowledge of the
cause of action giving rise to their section 252 claim for many
years.
[11]
The High Court also rejected the
Clubs’ argument that their causes of action amounted to
continuing wrongs.  It relied
on
Barnett
[12]
to hold that the actions complained of were single acts, albeit with
long-term consequences.  They had therefore prescribed.

The Court also dismissed the section 266 claim (VAT claim) on the
basis that it was a debt that had prescribed.  The only
claim
that was upheld related to the arrear rental payments owed to the
first respondent for use of land and laundry facilities.
A
curator
ad litem
was appointed and authorised to institute action against Mr Harri for
breach of his fiduciary duties.  Accordingly, the High
Court
dismissed the sections 252 and 266 claims on the basis that they had
prescribed.  The effect of this conclusion was
that the merits
of these claims were not considered by the Court.
Supreme Court of Appeal
[12]
Aggrieved by this decision, the
Clubs approached the SCA for leave to appeal.  The SCA (per Maya
ADP) considered the Clubs’
section 266 claim and held that the
debt arises only when the court grants the relief sought by the
shareholder under section 266
and appoints a curator
ad
litem
to launch the proceedings.  The
SCA concluded that the section 266 claim had not prescribed as the
appointment of the curator
had just been made by the High Court.  The
SCA extended the ambit of the authorisation of the curator
ad
litem
and authorised him to also
recover damage or loss incurred as a result of the fact that Mr Harri
had wrongfully allowed or caused
Shareblock to unjustifiably pay VAT
refunds in the sums of R2 169 897.04 and R120 309.13
to Development.
[13]
Regarding the section 252 challenge
against Shareblock’s articles and allocation of shares, the SCA
adopted the meaning of
the term “debt” based on the
reasoning in
Desai
[13]
to have a wide and general meaning.
[14]
That includes an obligation to do or refrain from doing something
that entails a right on one side and a corresponding obligation
on
the other.
[14]
The SCA rejected the Clubs’
attempt to amend their claims to include the rectification of a
contract.  It concluded that
those claims were not susceptible
to prescription as they do not alter rights and obligations but
merely concern erroneous reflections
of these rights and
obligations.  The SCA held that the Clubs’ case was
distinguishable from these instances.
That the Clubs founded
their case on section 252 rather than section 115, which
provides for rectification of the register
of members, reflected
this.
[15]
The allocation of Shareblock’s
shares was done pursuant to the articles that the Clubs now sought to
amend.  The SCA
noted that what the Clubs effectively sought was
a new contract by means of a new set of articles and that it would be
impermissible
to grant that relief.  Accordingly, the SCA
dismissed the Clubs’ appeal in respect of the section 252 claim
on the basis
that it had prescribed.  It is that part of the
order that the Clubs seek to challenge.
In this Court
Applicants’
submissions
[16]
The Clubs submit that Mr Harri’s
unlawful conduct which included improperly amending Shareblock’s
articles of association
and then implementing decisions taken under
the new articles operated unfairly, prejudicially, unjustly and
inequitably.
The Clubs contend that the section 252 remedy is
incapable of prescription.
[17]
The Clubs argue that the SCA erred
in affording the term “debt” a wide and general meaning.
In view of this Court’s
decision in
Makate
,
the Clubs argue that “debt” should be given a narrow
meaning rather than a wide one.
Makate
pointed out that the meaning of “debt”, as articulated in
Desai
, was
too wide to be constitutionally compliant.  The Clubs submit
that
Makate
must be understood to endorse the proposition that only two things
can permissibly qualify as a debt for the narrow purposes of
section
10(1)
[15]
read with section 11(d)
[16]
of the
Prescription Act, namely
, a claim for the payment of money or
a claim for the delivery of something.  Since the Clubs’
claims under section 252
of the Companies Act are neither, they
cannot be regarded as debts.  If they are not debts, in terms of
the
Prescription Act, then
they have not prescribed.
[18]
In the alternative, the Clubs submit
that their claim constitutes a continuing wrong that is also
incapable of prescription.
It is not the act of unlawfully
amending the articles of association, or manipulating the share
blocks, or building a hotel on
common property that triggers the
running of prescription.  Rather, the Clubs submit, it is the
continuing effect of these
acts that prevents prescription from
running.  If the appeal is successful, the Clubs seek a remittal
of the application to
the High Court for the adjudication of the
merits of the claim.
Respondents’
submissions
[19]
The respondents rejected the Clubs’
contention that
Makate
radically
recalibrated our law of extinctive prescription so that only claims
for the payment of money or the rendering of goods
or services amount
to a “debt” capable of prescription under the
Prescription Act.  Instead
, they maintain that the Clubs’
section 252
action falls squarely within the meaning of “debt”
following
Makate
.
To this end they rely on Wallis AJ’s concurring judgment,
arguing that the Clubs’ claims do not fall into a
“small
category of rights that do not constitute a debt for the purposes of
prescription”.
[17]
[20]
According to the respondents, the
relief sought by the Clubs under the aegis of
section 252
is a series
of orders affecting the shares in a manner that, in substance, they
constitute no less a “debt” than a
claim for performance
of an obligation to do something as ordinarily understood.
Focus should be placed on the ultimate ends
of the Clubs’
claims, which fall into even a narrow construction of “debt”—so
the respondents submit.
[21]
As to the “continuing wrong”
argument, the respondents point out that the Clubs were active
participants in this wrong,
having participated in the contested
share allocations.  Furthermore, the Clubs had full sight of
Shareblock’s constitutional
regime when they freely bought into
it.  That the articles of Shareblock existed in their current
form in a continuous manner
since 1988 is obvious.  It does not
follow that the continuous existence of the articles has given rise
to a continuous claim
of oppression.
Jurisdiction and leave
to appeal
[22]
This Court is empowered to decide
matters of a constitutional nature and any other matter that raises
an arguable point of law of
general public importance that ought to
be considered by it.
[18]
In addition, it must be in the interests of justice to grant leave.
[23]
This matter involves the
interpretation of this Court’s judgment in
Makate
,
which altered the law of prescription relied on by the SCA.  It
also implicates the right of access to courts and the proper

application of the principles in
Makate
and prescription law generally.  It is trite that the
interpretation of the
Prescription Act implic
ates the right of access
to courts in terms of section 34 of the Constitution.
[19]
In this regard, this Court has previously found jurisdiction.
[20]
[24]
The crux of this case is the proper
interpretation of the term “debt” as it appears in
section 10(1) read with
section 11(d)
of the
Prescription Act, and
having regard to section 39(2) of the Constitution.  The SCA
judgment was handed down before
Makate
was delivered.  In making its section 252 finding, the SCA
relied on the test enunciated in
Desai
.
This Court in
Makate
concluded that the test in
Desai
was inappropriate to the extent that it went beyond
Escom
.
[21]
The interpretation of prescription legislation has widespread
implications.  Therefore, it is in the interests of justice
that
leave to appeal be granted.
Issues
[25]
There are three issues to be
determined.  The first is the nature of a section 252 claim.
The second issue is the proper
interpretation of the term “debt”
as it appears in section 10(1) read with
section 11(d)
of the
Prescription Act, having
regard to section 39(2) of the Constitution,
and, whether, in the light of
Makate
,
a claim brought under section 252 of the Act constitutes a “debt”
that falls to be prescribed by way of extinctive
prescription.  The
last issue is, if a section 252 claim is a debt, whether the acts
complained of by the applicants as being
oppressive constitute
continuing wrongs and are therefore not subject to the running of
prescription.
The nature of a
section 252 claim
[26]
The provisions that are relevant for
the determination of this matter are contained in sections 252(1),
252(2) and 252(3).
They provide the following:
“
Member’s
remedy in case of oppressive or unfairly prejudicial conduct:
(1)
Any
member of a company who complains that any particular act or omission
of a company is unfairly prejudicial, unjust or inequitable,
or that
the affairs of the company are being conducted in a manner unfairly
prejudicial, unjust or inequitable to him or to some
part of the
members of the company, may subject to the provisions of subsection
(2), make an application to the Court for an order
under this
section.
(2)
Where
the act complained of relates to—
(a)
any
alteration of the memorandum of the company under section 55 or 56;
(b)
any
reduction of the capital of the company under section 83;
(c)
any
variation of rights in respect of shares of a company under section
102; or
(d)
a
conversion of a private company into a public company or of a public
company into a private company under section 22, an application
to
the Court under subsection (1) shall be made within six weeks after
the date of the passing of the relevant special resolution
required
in connection with the particular act concerned.
(3)
If
on any such application it appears to the Court that the particular
act or omission is unfairly prejudicial, unjust or inequitable,
or
that the company’s affairs are being conducted as aforesaid and
if the Court considers it just and equitable, the Court
may, with a
view to bringing to an end the matters complained of, make such order
as it thinks fit, whether for regulating the
future conduct of the
company’s affairs or for the purchase of the shares of any
members of the company by other members
thereof or by the company
and, in the case of a purchase by the company, for the reduction
accordingly of the company’s capital,
or otherwise.”
[27]
Section 252 provides a court with an
important tool to facilitate and provide equitable relief to minority
shareholders.  The
section provides a member with a means of
obtaining relief from unfairly prejudicial, unjust or inequitable
acts or omissions of
the company or conduct of its affairs.
This section has to be given a construction that will advance the
remedy rather than
limit it.
[22]
The wording of the provision indicates that section 252(1) and (3) is
directed at the rectification of an unfairly prejudicial,
unjust or
inequitable conduct in the operations of a company.  Section
252(1) allows any member of a company to complain if
any particular
act or omission of a company is unfairly prejudicial, unjust or
inequitable or if the affairs of the company are
being conducted in a
manner unfairly prejudicial, unjust or inequitable to the member.
[28]
Section 252(3) permits a court, if
it appears to it that the particular act or omission is unfairly
prejudicial, unjust or inequitable
or that the company’s
affairs are being conducted in such a manner, to make a just and
equitable order.  This section
confers a wide and unfettered
discretion on the court to do what it considers fair and equitable in
order to provide appropriate
relief to cure any unfair prejudice that
the applicant has suffered at the hands of the company.  The
just and equitable relief
is about institutional governance.  In
cases of corporate bullying, equitable intervention is necessary and
the courts must
be given some latitude to intervene and bring to an
end the matters complained of.  The section encompasses the
concept of
fairness.   Fairness is the criterion by which a
court must decide whether it has jurisdiction to grant relief.
[23]
The test of fairness is an objective one.  The court will
have to balance the interests of both parties in order to
make an
order that is just and equitable.  In doing so, the court has an
equitable jurisdiction in the exercise of which the
lateness of
complaints, including the fact that any sources of complaints may be
debts that have prescribed, will be considered.
[24]
The court has to consider an order that will be appropriate at the
time of the hearing.
[29]
The issue before this Court is not
about the merits of the applicants’ section 252 claim, but
whether that claim is a debt
for the purposes of the
Prescription Act
or
not.  The SCA in its analysis of the issues focused on the
question whether the claims were debts susceptible to extinctive

prescription and did not consider the role that could be played by
the High Court when adjudicating the merits of the
section 252
claim.
It concluded that these claims were founded on personal rights
and were debts that had prescribed.
[30]
In my view, the SCA adopted an
incorrect approach.  It seems to me that until a determination
on the validity of the parties’
positions against each other is
made under
section 252
, neither party can discharge its respective
obligations as neither is aware of the existence or extent of these
obligations.  I
am satisfied that the applicants’
oppressive conduct claim is founded on
section 252(1)
read with
252(3), as opposed to
section 252(2).
The matter was
pleaded on the basis of
sections 252(1)
and
252
(3) and the
specified instances in
section 252(2)
are not relevant to the
facts of this matter.  The internal limiter of six weeks in
section 252(2)
therefore does not apply.
[31]
The manner in which
section 252
is
drafted makes it possible that a particular claim brought under this
section is not a “debt” as defined in
Makate
.
The Clubs seek a declaratory order that certain provisions of
Sanbonani’s articles of association are invalid and
that
certain shares were improperly issued and that the holders of those
shares are barred from voting on them.  The relief
sought has a
direct effect on the future conduct and running of the company. The
mere fact that the claim is for a declarator does
not mean that the
Clubs are attempting to avoid the construction of “debt”
per
Escom
and therefore the application of the
Prescription Act.  In
Escom
, the
term “debt” was defined as “that which is owed or
due; anything (as money, goods or services) which one
person is under
obligation to pay or render to another”.
[25]
[32]
In this case, we are not dealing
with relief of the nature discussed in
Koster
where declaratory relief immediately precedes a
claim that practically is a “debt” under the narrow
construction of
the term in
Escom
.
In this sense, the declarator would be a mere litigatory framing
technique that fetters even the narrow application of the
Act.
Instead, this case concerns an entitlement to the making of an
equitable judicial determination, which in any event
considers the
delay.  The outcome of an equitable determination is not certain
in advance.  A court has to decide what
is just and equitable
based on the unique facts of the case. The declaratory order would
clearly spell out the rights and duties
of a party going forward and
whether the applicants’ claim should be absolutely barred or
not.  Therefore, the fact
that the Clubs’ claim is for a
declarator does not affect the applicants’ entitlement to the
relief sought.
[33]
However, before an analysis can be
undertaken as to whether the applicant’s claim constitutes a
debt for purposes of the
Prescription Act, it
must be established
first what the correct characterisation of the claim is.  Because
a given claim can be characterised in
different ways, it can
constitute a debt on one characterisation but not another.  The
applicants argue that their claim is
in no way a debt because it is a
claim for declaratory relief, which is not a debt in the ordinary
sense of the term according
to
Escom
.
However, the respondents argue that the claim is a debt,
because an alteration of the articles would lead in effect to a
new
contract.  Thus, there is a need for there to be an objective
characterisation of the claim independent of the averments
of the
parties that can be easily identified by a court and that advances
rather than diminishes the purposes of the
Prescription Act.
[34
]
In my view, the correct
characterisation of a claim for purposes of the
Prescription Act is
the characterisation arising from the relevant legal provisions on
which the claim is based. Here, the claim is based on section
252 of
the Companies Act, the plain text of which discusses an entitlement
to an equitable judicial determination.  Thus,
according to
section 252, the applicants’ claim is for declaratory relief,
not an alteration of the terms of a contract or
a money award.  The
respondents’ alternate proposal that attention should be given
instead to the ultimate effects or
aims of the relief sought is less
desirable because it requires that a court perform a complicated
causal or psychological inquiry
that is certain to yield disparate
results for what is essentially the same type of claim across cases.
This would undermine the
purposes of the
Prescription Act which
assumes that claims can be readily classified as one kind or another.
My solution is that courts restrict themselves to the
text of
the legal provision on which the claim is based.  In order to
identify what the relevant claim is, the court should
use the
applicants’ cause of action as guidance.  However, the
court is not beholden to the applicants’ characterisation
of
the claim, which might be at variance with the relevant legal
provision.  The latter governs.
[35]
There is also no internal time bar
in the Companies Act to the applicants’ section 252
claim.  However, section 252(3)
does make provision for a
court to grant relief where it “considers it just and
equitable”.  Therefore, the Court
can take into account
the length of the period that has elapsed between the date of
commission of the conduct complained of and
the date court
proceedings are instituted when a section 252 claim is adjudicated.
In this sense, the applicants only take
issue with their claim
falling within the ambit of the
Prescription Act, procedurally
precluding an equitable merits determination under
section 252(3)
altogether. Therefore, the decision to narrow the applicants’
relief in this Court to a declaration that their
section 252(3)
claim falls outside of the
Prescription Act is
appropriate.
[36]
In my view,
the
trial court is better suited to consider and adjudicate the question
relating to the validity of the claim under
section 252(3).
When
doing so, it can also consider the applicants’ tardiness as a
factor in granting relief thereto and also
determine
what may or may not have prescribed and whether just and equitable
relief in relation to the running of the company may
be justified,
even if certain debts have prescribed.
[37]
Is there a contradiction in saying
that a
section 252(2)
claim is not a “debt” but that a
court exercising its equitable jurisdiction under the provision can
take into account
the fact that the sources impelling the complaint
led to claims that, themselves, have in fact prescribed?  In my
view there
is no contradiction.
[38]
A
section 252(2)
claim affords a
claimant the right to seek an equitable, judicial determination of
the merits of a complaint about the governance
of a company.  It
is open to a court, in determining a just and equitable remedy, to
take into account the history of the
company’s management and
governance.  This may include the fact that certain issues that
underlie the complaint may
have prescribed.  This fits with the
wide discretion the provision confers on a court.  And it is not
incongruous with
the finding that a
section 252(2)
claim is not
invariably a “debt”.
[39]
The facts here offer a vivid
instance.  Part of the Clubs’ claims against Mr Harri
may have prescribed.  Yet
those prescribed debts themselves form
part of the history of the conduct of the company that may make it
just and equitable for
a court to grant equitable relief now.
More precisely, even past action in respect of which a debt may have
prescribed guide
a court into granting a contemporaneous just and
equitable order.
[40]
The present tense focus of
sections
252(1)
and (3) is key to this.  That oppressive conduct created
debts, historically, that were capable of prescribing does not
disable
or impede the court’s remedial powers, now, under
section 252(3).
Differently put, it is not, in my view, the
case that the court’s just and equitable discretion under
section 252(3)
arises only where the complaint is sourced in a
non-prescribed debt.
[41]
The court in granting just and
equitable relief cannot of course revive prescribed debts.  But
it can take them into account
in assessing whether governance calls
for a just and equitable remedy now.  It may be that, in
practice, it will be difficult
to fashion a remedy that takes these
considerations into account.  But that is not a reason for
barring the court’s
power,
a
priori
, on the ground that the debts
have prescribed.
[42]
The practical value of understanding
the provision in this way is that it enables a court to determine the
complaint without an
applicant being barred at the outset on the
basis that the source of the claim is a debt that has long
prescribed.  The provision
is about institutional governance.
It provides a crucial mechanism to keep corporate bullying at bay.
An understanding
of the provision that furthers this aim is one that
should be adopted.
Whether the applicants’
section 252
claim has prescribed
[43]
Section 10(1)
of the
Prescription
Act reads
:
“
Subject to the
provision of this Chapter and of Chapter IV, a debt shall be
extinguished by prescription after the lapse of the
period which in
terms of the relevant law applies in respect of the prescription of
such debt.”
Section
11(d)
in turn reads:
“
The
periods of prescription of debts shall be the following:
(d)
save
where an Act of Parliament provides otherwise, three years in respect
of any other debt.”
[44]
The
Prescription Act does
not define
the term “debt”.  This term has been given different
interpretations by the courts.  In
Escom
,
a narrow meaning was ascribed to the term as being—
“
that
which is owed or due; anything (as money, goods or services) which
one person is under obligation to pay or render to another.”
[26]
However, in
Desai
,
it was held that the term “has a wide and general meaning, and
includes an obligation to do something or refrain from doing

something”.  This Court in
Makate
finally clarified this issue and provided a proper meaning of “debt”
and held that the term “debt” does
not warrant a wide and
general meaning.  This Court, per Jafta J, held that the proper
meaning of debt as it appears in
section 10(1)
read with 11(d) of the
Prescription Act was
given an impermissibly wide meaning in
Desai
.
It went on to conclude that the interpretation of debt must be
construed in accordance with section 39(2) of the Constitution.

On that interpretation, an interpretation of “debt” which
must be preferred is the one that is least intrusive of the
right of
access to courts.  Furthermore, the Court said—
“
To
the extent that
Desai
went beyond what was said in
Escom
,
it was decided in error.  There is nothing in
Escom
that remotely suggests that “debt” includes every
obligation to do something or refrain from doing something apart
from
payment or delivery.”
[27]
[45]
The applicants aver that their claim
has not prescribed on two bases.  First, the claim is for relief
that the articles of
association be compliant with the law.
Therefore, that relief cannot be construed as a “debt”
for purposes of
the
Prescription Act and
is therefore incapable of
prescribing under the Act.  Second, it constitutes a “continuing
wrong” and is therefore
incapable of prescribing.
[46]
A finding for the applicants on
either ground qualifies them for the relief they seek.  Having
said that, the basis that formed
the bulk of the argument was whether
the applicants’ claim under section 252 constitutes a
“debt” under
the
Prescription Act.  The
SCA
applied the broad definition of “debt” enunciated in
Desai
and
then went further to hold that “in principle all rights are
susceptible to prescription except for rectification claims”.
[28]
In conclusion, it found the applicants’ claim amounted to a
“debt” and therefore had prescribed under the
Prescription Act.
[47
]
After the SCA’s judgment, this
Court handed down its decision in
Makate
.
In sum,
Makate
held that the broad interpretation of “debt” in
Desai
was inconsistent with earlier decisions that gave
the term a narrow definition.
[29]
[48]
I am satisfied that in interpreting
the meaning of “debt”,
Makate
functionally overturned the broad test adopted in
Desai
to the extent that it went beyond the narrow test in
Escom
.
The SCA’s reliance on the broader test in
Desai
in finding that the applicants’
section 252
claim is
capable of prescribing is therefore misplaced.  In my view, an
application of the narrow test as enunciated in
Escom
would bring the applicants’
section 252
claim outside of
the purview of “debt”, and therefore would be incapable
of prescribing under the
Prescription Act.
[49
]
On the application of this narrow
test, I am satisfied that the applicants’ claim under
section 252
cannot constitute a “debt”.  The
claim is a far cry from something owed or due, or an obligation to
pay
money, goods or services to another.
If anything, it is the right to seek a judicial determination as to
whether the applicants
are entitled to a statutory remedy, the
entitlement to which is determined on equitable grounds, and thus
allows the court to consider
the applicants’ tardiness, what
may or may not have prescribed and whether a just and equitable
relief in relation to the
operation of the company may be justified.
[50]
The finding that a
section 252
claim
does not in and of itself constitute a “debt” is
buttressed by this discussion of the nature of the power
section 252
conferred on a court.
[30]
The broad, equitable discretion to grant just and equitable relief
points away from a
section 252
claim constituting a “debt”
for the purposes of the
Prescription Act.  In
Gaffoor,
[31]
in discussing the nature of section 115 of the Companies Act (which
dealt with rectification of a company’s register of members),

the SCA stated that—
“
section
115 creates a statutory right to apply to the court for the exercise
by it of a statutory power; such right is not a ‘debt’

within the meaning of that expression in Chapter III of the
Prescription Act and
there can be no extinction of such right by
prescription.”
[32]
[51]
The SCA endorsed the High Court’s
characterisation of
section 115
as vesting “in the court a wide
discretion which is to be exercised according to the circumstances of
each case”.
[33]
Similarly, the statutory entitlement to a judicial determination in
terms of
section 252
, and the court’s wide discretion in
granting just and equitable relief, supports the finding that a
section 252
claim is not invariably a “debt”.
[34]
[52]
In discussing
Gaffoor
,
the SCA in the present case held that this was of no assistance to
the Clubs as it dealt with a claim for rectification, which
was
distinguishable from the Clubs’ claim.
[35]
While
section 115
does deal with rectification of a company’s
register of members, it by no means follows that
Gaffoor
has no bearing on the present matter.  The fact that
section 115
relates to rectification does not detract from its most vivid
features—that of affording a statutory right to request a court

to exercise a discretionary power.  These aspects of the
provision are akin to those in
section 252
, and the approach in
Gaffoor
is
usefully illuminating.
[53]
The
Prescription Act is
therefore not the proper mechanism to bar the applicants from
exercising their
section 252
right.  Not only does their
claim fall outside of the scope of “debt” under
Makate
and
Escom
,
but
section 252(3)
already contains an equitable mechanism that
assuages the respondents’ practical objections to the
applicants’ tardiness.
The narrowness of the applicants’
relief before this Court makes it unnecessary for this Court to
venture into making a
section 252(3)
merits determination.
It follows that the wording of
section 252
indicates that a claim under this section is not a debt that can
prescribe.
Whether the acts
complained of constitute continuing wrongs
[54]
In light of my conclusion, it is
unnecessary for me to consider the applicants’ alternative
argument on the basis of a “continuing
wrong”.  A
determination on either ground alone qualifies them for the relief
they seek.
It follows that the appeal
must be upheld and the declarator sought granted.
[55]
Therefore, the High Court will have
to adjudicate the merits of the
section 252
claim and also consider
the issue relating to the costs of that application.
Order
[56]
In the result, the following order
is made:
1.
The applicants are granted leave to appeal
against that part of the judgment and order of the Supreme Court of
Appeal that held
that their claim located in section 252 of the
Companies Act 61 of 1973 had prescribed.
2.
The appeal against the order of the Supreme
Court of Appeal relating to the dismissal of the section 252 relief
is upheld.
3.
The order of the Supreme Court of Appeal
that relates to a claim brought under section 252 of the Companies
Act is set aside and
replaced with:
“
(a)
The appeal against the order of the High Court relating to the claim
brought under section 252 of the
Companies Act is upheld.
(b)
The order of the High Court relating to the claim brought under
section 252 of the Companies Act is
hereby set aside and replaced
with the following:
(i)
It is declared that a claim brought under section 252 of the
Companies Act 61 of 1973
does not constitute a debt in terms of the
Prescription Act 68 of 1969.
(ii)
The matter is postponed
sine die
to enable the applicants to
enrol the matter for the adjudication of the merits of the claims in
terms of section 252 of the Companies
Act 61 of 1973.
(iii)
The issue of costs is reserved.”
4.
The respondents must pay the applicants’
costs in this Court and in the Supreme Court of Appeal, including the
costs of two
counsel.
FRONEMAN J (Mbha AJ
and Musi AJ concurring):
[57]
I have had the privilege of reading
the judgments of Mhlantla J (first judgment/majority judgment) and
Madlanga J (third judgment)
and agree that leave to appeal must be
granted.  I also agree that the appeal should succeed, but to a
more limited extent
than Mhlantla J proposes.  In particular,
unfortunately, I cannot agree with the declaratory order that—
“
the
claim brought under section 252 of the Companies Act 61 of 1973 does
not constitute a debt.”
My disagreement
arises from two aspects: the first procedural; the second more
substantive in nature.
Relief sought in the
High Court
[58]
The procedural aspect relates to the
finding in the first judgment that—
“
we
are not dealing with relief of the nature discussed in
Koster
where declaratory relief immediately precedes a claim that
practically is a ‘debt’ under the narrow construction of

the term in
Escom
.
In this sense, the declarator would be a mere litigatory framing
technique that fetters even the narrow application of the
Act”.
I am afraid that the
relief sought in the notice of motion was exactly that: it framed the
substantive relief sought by the applicant.
[36]
[59]
The part of the order sought in the
notice of motion under section 252 of the Companies Act
[37]
reads:
“
(a)
An Order declaring the following to be invalid:
(i)
article 3.5 of the First Respondent’s
articles;
(ii)
the allocation of more than 1040 shares to
share block 65SBPC relating to site 56 of the First Respondent;
(iii)
the creation of share blocks 57 to 60 SBCF
and 61 to 63SBCP in the Articles of Association of the First
Respondent;
(iv)      the creation of share blocks
relating to ‘Maintenance weeks’ and the allocation
of
shares pursuant thereto;
(b)
An Order that the articles of the First Respondent are amended in the
following respects:—
(i)
deleting the word ‘issued’ and substituting therefor the
word ‘allocated’
in article 3.1 so that it will read as
follows:
‘
The
authorised share capital of the company is divided into: 168 528 (one
hundred and sixty eight thousand five hundred and twenty
eight)
ordinary shares of Rl,00 each of which 168 528 (one hundred and sixty
eight thousand five hundred and twenty eight) ordinary
shares of
Rl,00 each have been allocated as set out in Annexure “A”
conferring rights of use as set out in articles
3.2 and 3.3, 3.4 and
3.5, appointed between 63 Share Blocks, numbered 1 – 63’;
(ii)
Substituting article 3.5 with the following:
‘
The
shares comprising the share blocks 09 (naught nine) SBSP to 41 (forty
one) SBSP inclusive and 43 (forty three) SBSP to 55 (fifty
five)
SBSP, inclusive and 61 (sixty one) SBSP, confer on the holder right
of use for residential purposes of such portion of the
land upon
which the sites are situated and marked S9 (S nine) to S41 (S forty
one), S42 (S forty two), S43 (S forty three) to S55
(S fifty five)
and S61 (S sixty one) on Annexure “B”.
Until
an improvement, if any, in respect of such sites is completed, the
said share blocks shall not be allocated but the Share
Block
Developer shall have the right to the use of such portion of the land
being the sites S9 (S nine) to S41 (S forty one), S43
(S forty three)
to S55 (S fifty five) and S61 (S sixty one) as marked on Annexure “B”
to complete development.’
(iii)
by amending Annexure “A” to the
Articles to read as set forth in Annexure “'EE” to this
Notice of Motion.
(c)       An Order directing the
Seventh Respondent to note and register the articles of the First

Respondent in their amended form.
(d)
An Order directing:—
(i)
that the following shares are to be cancelled by the First Respondent
forthwith:—
(aa)
the shares allocated to share block 56SBPC other than 1 040 shares;
and
(bb)
the shares allocated to share blocks 57SBCF to 60SBCF as well as
61SBSP to 63SBCP; and
(cc)       the shares relating to
“Maintenance weeks”;
(ii)
that pending such cancellation the holders of such shares for the
time being are
not entitled to vote on them.”
[60]
The applicants never sought an order
in the High Court or the SCA declaring that their claim under section
252 of the Companies
Act is not a debt under the
Prescription Act.
What
needed to be determined in the High Court was thence whether
each of the claims set out in the notice of motion had prescribed or

not.  That is what it did, as did the SCA.  And that is
what this Court should do, too.  I consider each of the
claims
to fall comfortably within the meaning of “debt” under
the
Prescription Act.
Access
to courts to
enforce debts
[61]
There has been much ado about
prescription by this Court recently.
[38]
Now we are at it again.  I indicated previously that I agree
that a fresh look at the
Prescription Act is
necessary in light of
the right of access to justice guaranteed in terms of section 34
of the Constitution.
[39]
But there is a danger that in that process we lose direction, rather
than gaining clarity.  So there is a need to analyse,
first, the
ambit of the section 34 access to justice guarantee before we
venture into changing our existing law in its light.
[62]
In terms of section 34 “[e]veryone
has the right to have any dispute that can be resolved by the
application of law decided
in a fair public hearing before a court
or, where appropriate, another independent and impartial tribunal or
forum”.
What kind of dispute can be resolved by “the
application of law”?
[63]
To answer that we need not attempt
to reinvent the wheel.  A dispute that can be resolved by the
application of law is usually
one that can be decided by a
determination of the legal obligations that parties owe to one
another.  A legal obligation is—
“
a
legal tie which binds a debtor to the necessity of making some
performance.  If such a performance is not forthcoming, the

creditor may bring an action”.
[40]
[64]
In
Introduction
to South African Law and Legal Theory
the
authors explain that a legal obligation is—
“
a
juristic bond between two persons in terms of which the one is
legally bound as against the other to perform something.
It is
therefore a relationship which entails on the one hand a person’s
right to performance by someone else . . . and on
the other hand
another party’s duty to perform.  The performance which
forms the object of the right and the corresponding
duty may consist
in giving something, in doing something or in not doing something.
The holder of the right is called a creditor
and the other the
debtor”.
[41]
[65]
Our existing law reflects this
understanding of legal obligations.  The pertinent example lies
in the enforcement of judgments.
A judgment obliging a debtor
to do something that sounds in money can be enforced by execution
against the assets of the debtor.
[42]
A judgment obliging a debtor to do or refrain from doing something,
which does not translate into the payment of money, is
enforced
through contempt of court orders against the debtor.
[43]
All this is trite law.
[66]
So, in order to determine whether
section 34’s right of access to justice has an interpretive or
other role to play when prescription
comes into play, one first has
to determine whether the dispute at hand is covered by its injunction
that it must be a dispute
that “can be resolved by the
application of law”.
[67]
Sections 252(1), 252(2) and 252(3)
of the Companies Act provide:
“
(1)
Any member of a company who complains that any particular act or
omission of a company is unfairly prejudicial,
unjust or inequitable,
or that the affairs of the company are being conducted in a manner
unfairly prejudicial, unjust or inequitable
to him or to some part of
the members of the company, may subject to the provisions of
subsection (2), make an application to the
Court for an order under
this section.
(2)
Where the act complained of relates to—
(a)        any alteration of the
memorandum of the company under section 55 or 56;
(b)        any reduction of the
capital of the company under section 83;
(c)        any variation of rights
in respect of shares of a company under section 102; and
(d)        a conversion of a
private company into a public company or of a public company into
a
private company under section 22, an application to the Court under
subsection (1) shall be made within six weeks after the date
of the
passing of the relevant special resolution required in connection
with the particular act concerned.
(3)
If on any such application it appears to the Court that the
particular act or omission
is unfairly prejudicial, unjust or
inequitable, or that the company’s affairs are being conducted
as aforesaid and if the
Court considers it just and equitable, the
Court may, with a view to bringing to an end the matters complained
of, make such order
as it thinks fit, whether for regulating the
future conduct of the company’s affairs or for the purchase of
the shares of
any members of the company by other members thereof or
by the company and, in the case of a purchase by the company, for the
reduction
accordingly of the company’s capital, or otherwise.”
[68]
Legal obligations were traditionally
characterised as arising from contract, delict, unjustified
enrichment and by operation of
law (
ex
lege
).
[44]
Analytical categorisation cannot bind us, only help us find our way,
but legal obligations created by statute comfortably
fall within the
last category.
[45]
[69]
It seems to me that a claim based on
alleged “unfairly prejudicial, unjust or inequitable”
conduct under the provisions
of section 252
must
,
not only
can
,
be resolved by a court “by the application of law”.
The legal application consists in determining whether the
conduct is
unfairly prejudicial, unjust or inequitable and whether it is just
and equitable to make an order once that has been
determined.
The relief that may be ordered is to—
“
make
such order as it thinks fit, whether for regulating the future
conduct of the company’s affairs or for the purchase of
the
shares of any members of the company by other members thereof or by
the company and, in the case of a purchase by the company,
for the
reduction accordingly of the company’s capital, or otherwise”.
In a nutshell:
unfairly prejudicial, unjust or inequitable conduct against a company
member may give rise to a legal obligation
on the part of the company
to do something to remedy that conduct.  It falls squarely
within a dispute to be resolved by a
court by the application of law,
in the sense of determining the correlative legal rights and
obligations of the opposing parties
in the litigation initiated under
section 252.
[70]
In
Makate
the majority judgment, by which I am
willingly bound, found that the dictionary definition of a “debt”
as adopted in
Escom
is the one that we must apply in interpreting the
Prescription Act,
namely
:
“
1.
Something owed or due: something (as money, goods or services) 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.”
[46]
[71]
This dictionary definition of a
“debt” is as near as damn it to what our law accepts as
constituting a legal obligation.
[47]
So, at first glance, it appears as if the “application of law”
to determine the legal obligations that one litigating
party may owe
another, which triggers the application of section 34 of the
Constitution, must also at the same time involve determining
the
“debt” that is owed by one litigating party to another.
Generally, determining a dispute by the application
of law
amounts to determining the legal obligation one party owes to
another, which, in turn, falls within the definition of a
“debt”
accepted in
Makate
.
[72]
There are, however, disputes that
can be resolved by the application of law that do not depend on
correlative right/duty legal obligations.
The American jurist,
WH Hohfeld, exposed the limitations of the traditional
“right/duty” pattern and refined it
into four distinct
pairs of correlatives: right/duty; privilege/no-right;
power/liability; immunity/disability.
[48]
The right to make a will, or the right to free speech, does not
immediately present a correlative duty on another to do or
not do
something in relation thereto.
[49]
So there may be cases where a dispute may come before court and be
resolved by the application of law without it being determined
on the
basis of legal obligations owing by one party to another.
[73]
Eschewing reliance on jurisprudence
and philosophy of law, the SCA has recently reminded us that where
rights have as their object
a thing, and not performance by another,
then the rights in relation to the thing give rise to competencies,
not necessarily correlative
duties.
[50]
Ownership, for example, may give an owner the right to the use of
land, or to give others the right to use it, but does not
necessarily
give rise to any concomitant duties over the land.
[51]
In
ABSA Bank Ltd
[52]
this distinction was relied on in holding that a vindicatory action
was not a “debt” under the
Prescription Act.  The
absence of a correlative duty or obligation also accounts for holding
that rectification claims for contract,
[53]
deeds of transfer,
[54]
and a company’s register of members in terms of the Companies
Act where the ownership of the shares always remained in the
entity
that sought its ownership reflected in the register,
[55]
do not constitute a “debt” in terms of the
Prescription
Act.
[74
]
Even if one accepts that there may
be cases under
section 252
where the resolution of the dispute
can be resolved by the application of law in a manner that does not
depend on a determination
of the legal obligations owing to one of
the parties by another, that will be the exception, not the rule.
The normal claim
under
section 252
does not fit this exceptional
bill.  It will usually be a claim by one party (a member of a
company), against another party
(the company), that it has conducted
itself in an unfairly prejudicial, unjust and inequitable manner
towards a member or members
of the company, and that it is under a
legal obligation to make good the obligation in a manner that the
court thinks fit.
That kind of case (the normal or usual one)
will, for the reasons already given, also fall within the dictionary
definition of
a “debt” that
Makate
imposes on us when we interpret and
apply the
Prescription Act.
[75
]
The first judgment is grounded on
different and disparate reasons for holding that the claim brought
under section 252 of the Companies
Act does not constitute a debt:
(a)
The first is based on an acceptance of the correlative right/duty
requirement, namely that
because fairness is inherent in the
determination of a section 252 claim, the respective obligations that
the parties owe each
other is only known when the determination is
made.
[56]
The “debt” thus only comes into existence when the
determination is made and prescription cannot run before then.
[57]
(b)
The second is that the remedy afforded is a discretionary one that in
itself allows a consideration
of the time that had elapsed as one of
the factors to be taken into account in determining a just and
equitable remedy.  Aligned
to this is the consideration that
section 252 grants courts a form of institutional governance to
remedy corporate bullying.
[58]
[76]
My difficulty with this approach is
that it turns an ordinary function of courts—to determine the
validity of legal claims
and grant appropriate relief—into an
exceptional one justifying the exclusion of the
Prescription Act
altogether
and thus in effect, proclaims that no claim under
section
252
can ever prescribe.  I think that takes things too far.
[77]
That fairness is the judicial
criterion for determining claims brought under
section 252
is
correct, but that feature does not make it any different from the
determination of claims that depend on any other legal requirement

for its legal validity.  In a delictual claim the various
elements of a delict must be established before judgment is finally

given, but that does not mean that before judgment the claim was not
a “debt” under the
Prescription Act.  It
simply
means that the original debt now becomes a judgment debt.
Fairness as the relevant legal requirement is no different
in nature
or principle.  The idea that fairness is not a legal requirement
and that there is a rigid conceptual distinction
between fairness and
law is one that is increasingly recognised as being discordant with
our constitutional values.
[59]
Does it mean that all claims that have fairness as one of its
underlying requirements are not “debts” under the
Prescription Act?  I
think not.
[78]
The existence of a just and
equitable remedy cannot do the trick either.  The remedy follows
upon the determination of the
claim in terms of the legal
requirements for the validity of the claim: it does not itself form
part of those requirements.  And
there is not a word in the
remedial part of the statute –
section 252(3)
– that
expressly or impliedly excludes the operation of the
Prescription
Act.  If
the existence of a wide and equitable remedy was
decisive, then our wide just and equitable remedial powers under
section 172(1)
would preclude us from recognising the constitutional
validity of statutory prescription provisions.  That has not
been the
case.
[60]
The common law also recognises that discretionary remedies like
specific performance may be subject to prescription.
[61]
A legal obligation arising from legislation may constitute a “debt”
under the
Prescription Act.
[62
]
Neither the existence of a discretionary just and equitable remedy
nor the fact that it derives from statute present, in
themselves,
sufficient ground for holding that a claim under
section 252
does not
constitute a “debt” under the
Prescription Act.
[79
]
There is, however, SCA authority
that these two features justify the conclusion that the
Prescription
Act is
not applicable to the old section 115 of the Companies Act.
In
Gaffoor
[63]
Van Heerden JA stated:
“
I
agree . . . that s[ection] 115 creates a statutory right to apply to
the court for the exercise by it of a statutory power; such
right is
not a ‘debt’ within the meaning of that expression in ch
3 of the
Prescription Act and
there can be no extinction of such
right by prescription.”
[80]
It is not entirely clear whether
this conclusion is based on the fact that what is granted to an
applicant is a “right”
without a correlative “duty”
(a “power” as it described in the passage) or whether it
flows from the assumption
that a discretionary jurisdiction is not
one that entitles an applicant to an order flowing from a judicial
debt (
ex debito justitiae
).
[64]
Whatever the case may be, these are not the features of the claims
brought by the applicants under
section 252
, nor did they seek relief
under
section 115.
[81]
Determination of a legal obligation
that already considers delay would make the application of the
Prescription Act superfluous
, not because the legal obligation does
not fall within the dictionary definition of a “debt” as
articulated in
Escom
and endorsed in
Makate
,
but because the temporal limitation that is the premise upon which
the
Prescription Act is
based, is already adequately covered in
particular legislation, here section 252 of the Companies Act.
That was the basis
for this Court’s decision in
Mdeyide
[65]
and the portion of Jafta J’s judgment in
Myathaza
that dealt with the disjunct between the provisions of the Labour
Relations Act and the
Prescription Act.
>
[66]
[82]
I do not agree that consideration of
“prescription”, in the wider sense of dealing with the
temporal limitation of a
claim under
section 252
, is inherent in a
determination of a
section 252
claim, but that approach at least
opens up the substantive justification for the exclusion of the
Prescription Act to
debate in a way that a mere exclusionary
definition of a “debt” does not allow.  The latter
method seeks to hide
the substantive reasons for the definitional
exclusion.  There is room for a constructive debate if the
substantive reasons
for not wanting to recognise a particular claim
as falling within the legal, not merely dictionary, meaning of a
“debt”
under the
Prescription Act, is
openly acknowledged
and advanced.  That would force us to justify, in more
substantive terms than has been the case thus far,
why claims for
rectification
[67]
and obligations to negotiate in good faith
[68]
are not recognised as “debts” for the purposes of the
Prescription Act.  And
it would open a legitimate debate why
certain fundamental rights and claims based on historical injustice
may not be subject to
the strictures of the
Prescription Act.
[83
]
But that, again, is an argument in
favour of fact-contextual and piecemeal adjudication of claims under
section 252.
It is not a justification for an all-or-nothing
approach based on the assertion in the majority judgment (with which
I do
not agree) that the just and equitable enquiry under the section
necessarily includes consideration of temporal limits to the
exclusion
of the specific provisions of the
Prescription Act.
[84]
So, to say that “the claim
brought under section 252 of the Companies Act 61 of 1973 does not
constitute a debt”, is
in my respectful view too wide and
cannot be supported.  There may be exceptional cases where a
claim brought under section 252
of the Companies Act may not
constitute a “debt” in accordance with the definition of
debt favoured in
Makate
,
but there are many more cases where the claim under section 252
will constitute a “debt” as defined for the purposes
of
application of the
Prescription Act.  The
various claims in the
notice of motion provide an apt illustration.
[85]
Prayer 2(a)(i) of the notice of
motion at the High Court seeks to declare article 3.5 of Shareblock’s
articles to be invalid.
It is based on the assertion that—
(a)
it does not set out the rights of
shareholders in the articles of association as was required
by
section 65(2) of the Companies Act, but instead leaves it to the
discretion of a developer; and
(b)
it does not define the number of shares in each block as is required
in terms of the Share
Block Control Act, but also leaves it in the
hands of the developer; and
(c)
it is void for vagueness because Shareblock cannot compel Development
to define the shares
which will form part of share blocks and what
rights will accrue thereto.
[86]
In prayer 2(b)(i)-(iii) the
applicants seek an order regarding how certain clauses should be
amended and in prayer 2(c) they seek
an order directing the Registrar
of Companies to note and register the articles of Shareblock in their
amended form.
[87]
What does this amount to other than
a claim that Shareblock unlawfully registered the articles and that
it owes a legal obligation
to the wronged shareholders to correct the
defect?  It is a claim for:
“
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”, in terms of the dictionary definition
of “debt” approved and adopted in
Makate
.
[69]
[88]
The applicants also asserted that
Shareblock’s legal obligation to them extended further, and
they requested in prayer 2(d)(i)
for an immediate cancellation of
certain shares as well as an order in prayer 2(d)(ii) to prohibit
voting under these shares before
their cancellation.  That is
also clearly part of the alleged “debt” owed to them.
[89]
The High Court held that the claims
arising from the wording of the articles and the allocation of the
shares were “single
acts, albeit with long-term consequences”
and that they had “therefore prescribed”.
[70]
The single act in relation to the amendment and registration occurred
in 1988 and it was done with the consent of the members.
But
does this mean that the illegality of the “statutory
contract”
[71]
endures forever?  The SCA held that the applicants could not—
“
effectively
seek . . . a new set of articles and, therefore, a new contract which
the parties should perhaps have concluded but
patently did not.  That
is impermissible”.
[72]
[90]
That appears to foreclose any
amendment of the articles on the basis of their alleged illegality by
anyone, even members who now
wish to acquire shares in Shareblock.
This is an issue that was not considered in either the High Court or
the SCA, because
for the purposes of determining the claim of
prescription “the postulation is, of course, that the
allegations underpinning
the [prescription] claim had in fact been
established.”
[73]
[91]
Postulating that the articles may
still be declared invalid and amended for illegality at the time the
application was brought in
the High Court, I agree that, to the
extent that the applicants sought to use the invalidity to remedy
past wrongs, those claims
had prescribed.  But, on the same
postulate, the remedying of present and future wrongs may not have
prescribed.
[92]
This is because it is not only the
invalid act that may constitute the wrong, but that act causally
related to resultant harm.
[74]
The question is thus whether the alleged invalid registration and
allocation is—
“
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 essentially that it
results in a series of debts arising from moment to
moment, as long
as the wrongful conduct endures”.
[75]
[93]
In
Barnett
Brand JA distinguished that case from
Radebe
:
[76]
“
Where
the present case differs from
Radebe
,
as I see it, is that the government’s claim is not for the
setting aside of a single act of deprivation of possession which

happened wholly in the past, but effectively for an order terminating
wrongful conduct which is still in the course of depriving
it of the
possession of its property.”
[77]
[94]
Was the applicant’s case based
on oppressive harm of the past, or present and future harm?  The
answer is: both.  This
is how the founding affidavit describes
it:
“
The
effective usurpation of common property and common facilities without
any form of compensation, the ongoing abuse of these facilities

subsidised by minority members and the arbitrary allocation of
shareholding in such a manner as to afford a position of strength
to
DEVELOPMENT are matters which, I submit, would entitle the Applicants
to an order for the winding-up of SHAREBLOCK on the basis
that it is
just and equitable to do so.
Were
SHAREBLOCK to be wound-up however, this would not have any effect
upon the shareholding which has been done in a disparate
and
arbitrary manner to the Applicant’s prejudice and the prejudice
of the other minority shareholders. HARRI, DEVELOPMENT
and the Trust
would consequently merely continue to enjoy an unfair advantage on
liquidation over and above the Applicants.
It
is submitted that the only manner in which this Honourable Court is
able to bring the suppressive conduct to an end is to direct
the
amendment of SHAREBLOCK’s articles in certain respects.
”
[95]
The oppressive current and future
harm that the applicants relied on is thus the alleged unfair
advantage that would continue to
exist on liquidation. On my approach
that claim may not have prescribed if two prerequisites are found to
exist:
(a)
That the registration of clause 3.5 and resultant allocation of
shares is indeed illegal
and liable to be declared invalid; and
(b)
That the alleged unfair advantage on liquidation is indeed “unfairly
prejudicial,
unjust or inequitable” to the applicants under
section 252.
[96]
The High Court and SCA failed to
consider the possibility that the applicants’ claim related to
present and future harm, not
only past harm.  To that extent the
appeal must succeed and the High Court must be given an opportunity
to determine those
issues.
[97]
I would make the following order:
1.
The applicants are granted leave to appeal
against that part of the judgment and order of the Supreme Court of
Appeal that held
that their claim located in section 252 of the
Companies Act 61 of 1973 had prescribed.
2.
The order of the Supreme Court of Appeal
relating to the section 252 claims is set aside.
3.
The matter is remitted to the High Court, Gauteng Division, Pretoria
to determine
the following issues:
3.1        Whether the
registration of clause 3.5 of the first respondent’s articles
of association and resultant allocation of shares is illegal and
liable to be declared invalid;
3.2        Whether the alleged
unfair advantage on liquidation flowing from a finding under
3.1 is
“unfairly prejudicial, unjust or inequitable” to the
applicants under section 252; and
3.3        The appropriate remedy
if the issues in 3.1 and 3.2 are resolved in favour of the
first and
second applicants.
4.
The first to seventh respondents are ordered to pay costs, including
those consequent
upon the employment of two counsel.
MADLANGA J:
[98]
I have read the judgment of my
colleague Mhlantla J (majority judgment).  Save for a slight
change to the order, I agree with
the outcome.  I write
separately because I take a different approach to the analysis of
“debt”.
[78]
[99]
In its analysis of “debt”, I
read the majority judgment to place particular focus on the nature of
the relief sought
by the applicants.
I disagree with
this approach.  On this approach, there is the risk that the
primary objectives of prescription may be defeated.
In
Mdeyide
Van Der Westhuizen J captured these objectives thus:
“This court
has repeatedly emphasised the vital role time limits play in bringing
certainty and stability to social and legal
affairs, and maintaining
the quality of adjudication.”
[79]
[100]
Not all claims prescribe under the
Prescription Act; only
claims that are “debts” within the meaning of that Act
do.  If we were to look to the remedy sought to establish

whether a claim at issue is a “debt”, an ingenious
applicant or plaintiff could use the simple stratagem of concealing

the true nature of the underlying claim.  For example, the
litigant could do this by seeking relief that is not specific beyond

a generalised prayer for whatever a court might find to be just and
equitable relief.  An example is the section 252(3) relief.

An unsuspecting respondent or defendant would easily find her- or
himself defending the merits of the claim and not raising an

otherwise available defence of prescription.  Because in our law
the defence of prescription may not be raised by a court
of its own
accord,
[80]
the respondent or defendant may end up being prejudiced.
Surely, the shield of prescription cannot be pierced so easily.
[101]
As I read the majority judgment, this is the exact situation
to which it exposes respondents and defendants.  It examines the

remedy provided by the statute under which an applicant brings her or
his claim.  In this case, this is the remedy provided
by section
252(3) for applicants who have a cause of action under section 252(1)
of the Companies Act.  This remedy is “an
order as [a
court] thinks fit” if a court deems such an order to be “just
and equitable”.
[81]
[102]
In
Makate,
we held that “debt” in the
Prescription Act means
“
an
obligation to pay money, deliver goods or render services”.
[82]
It may very well be that, right from the onset, an applicant or
plaintiff was aware that the conduct later complained of
under
section 252(1) of the Companies Act gave rise to an obligation to pay
money, deliver goods or render services.  On the
Makate
definition that must be a debt.  And courts should not allow the
concealment of its true nature by the simple device of not
claiming
the debt owing, but rather resorting to the language of section
252(3).  Axiomatically, claims founded on this type
of debt are
capable of prescription under the
Prescription Act.
[103
]
The very essence of prescription is that ordinarily the merits
of debts that have prescribed should not be adjudicated.  That

much is plain from the words of this Court in
Mdeyide
.
If, because of how the relief has been couched, a claim that is, in
fact, founded on a debt would end up being adjudicated
even if it
would otherwise have prescribed, that would defeat the objectives of
the
Prescription Act.  Focusing
, for a moment, on one of these
objectives, “the quality of adjudication”
[83]
might well be compromised.  Therein lies my difficulty with the
approach in the majority judgment.  It is susceptible
to letting
off the net, and having courts adjudicate the merits of, claims that
have prescribed to the prejudice of respondents
or defendants.
[104]
An additional difficulty with this approach is that it seems
to admit of the possibility that claims arising from
the very same
conduct
may be held to have prescribed or not to have prescribed,
depending on (a) the bases on which the claims were prosecuted and
(b)
the relief each basis affords in law.  That does not sound
right.
[105]
In my view, the correct approach is to examine the
conduct
complained of and the
resultant claim
.
If
the conduct gives rise to a claim that qualifies as a debt within the
meaning of
Makate
,
then prescription under the
Prescription Act will
apply.
Whether the conduct gives rise to a claim that qualifies as a debt is
something capable of identification independently
of any relief that
may subsequently be claimed.  If, on the other hand, the claim
arising from the conduct does not fit the
Makate
definition of “debt”, there
can be no prescription under the
Prescription Act.
[106
]
This approach provides an objective
basis for determining which claims are capable of prescription.
It does not depend on
the remedy sought or the particular legal basis
under which that remedy is sought.  And it
is
consistent
with section 252(2) of the Companies Act which provides an internal
prescription period.
[84]
The focus of this section is the type of conduct,
not the available relief.
[107]
Applying this approach to the
instant matter, I would ask whether the conduct complained of—that
is, the amendment of Shareblock’s
articles of association and
allocation of shares—did, in fact, give rise to a debt within
the meaning of
Makate
.
When I look at that conduct, I do not see that an obligation to pay
money, deliver goods or render services did come into
being.
Thus we are here not concerned with a debt capable of prescription
under the
Prescription Act.
[108
]
In conclusion, I would have phrased
(b)(i) of the substituted order under paragraph 3 of the order in the
majority judgment differently.
But for that, I agree with the
outcome.  Here is how I would have couched (b)(i) of the
substituted order:
“
(i)
It is declared that the applicants’ claim brought under section
252 of the Companies Act 61 of 1973 does not constitute
a debt in
terms of the
Prescription Act 68 of 1969
.”
I would do this to
make plain that some claims brought under section 252 of the
Companies Act may prescribe.
For the
Applicants:
H Epstein SC, K Hopkins and T Govender
instructed by David
C Feldman Attorneys
For the
Respondent:
G I Hoffman SC, G B Rome SC, JA Raizon and
G Singh instructed by
David Oshry and Associates
[1]
Off-Beat Holiday Club v Sanbonani Holiday Spa
Shareblock Ltd
[2016] ZASCA 62
;
2016
(6) SA 181
(SCA) (SCA judgment).  The main judgment, which
contains the finding that the applicants take issue with, was
prepared by
Maya ADP.  Cachalia JA and Leach JA each prepared a
separate judgment, which do not bear relevance to the appeal at
hand.
[2]
61 of 1973.  This Act has now largely been
repealed and should not be confused with the currently operative
Companies Act 71 of 2008
.
[3]
Makate v Vodacom (Pty)
Ltd
[2016] ZACC 13; 2016 (4) SA 121 (CC); 2016 (6) BCLR 709 (CC).
[4]
59 of 1980.
[5]
The fourth, fifth and sixth respondents act in
their fiduciary capacities as the trustees of the Trust.
[6]
Off-Beat Holiday Club v Sanbonani Holiday Spa
Share Block Limited
[2014] ZAGPPHC 418
(High Court judgment).
[7]
Section 252
provides a remedy to minority members
of companies in cases where the majority are guilty of oppressive
conduct that has unfairly
prejudiced them.  The relevant
provisions of the section are quoted below at [26].
[8]
Section 266
enables a member to bring an action
to enforce the company’s rights against wrongdoing by
directors and officers or past
directors and officers.  It
empowers the court to order that any resolution ratifying or
condoning the wrong in question
shall be of no force or effect.
[9]
68 of 1969.
[10]
Duet and Magnum Financial Services CC (in
liquidation) v Koster
[2010] ZASCA 34;
2010 (4) SA 499 (SCA).
[11]
24 of 1936.
[12]
Barnett v Minister of Land Affairs
[2007] ZASCA 95; 2007 (6) SA 313 (SCA).
[13]
Desai NO v Desai
[1995] ZASCA 113; 1996 (1) SA 141 (SCA).
[14]
See SCA judgment above n 1 at para 32.
[15]
Section 10(1)
of the
Prescription Act reads
:
“
Subject to
the provisions of this Chapter and of Chapter IV, a debt shall be
extinguished by prescription after the lapse of the
period which in
terms of the relevant law applies in respect of the prescription of
such debt.”
[16]
Section 11
in turn reads:
“
The
periods of prescription of debts shall be the following:
(d) save where an Act of
Parliament provides otherwise, three years in respect of any other
debt.”
[17]
Makate
above n 3
at para 199.
[18]
Section 167(3)(b) of the Constitution.
[19]
Section 34 provides that: “Everyone has the
right to have any dispute that can be resolved by the application of
law decided
in a fair public hearing before a court or, where
appropriate, another independent and impartial tribunal or forum.”
[20]
Makate
above n 3
at para 90. See also
Road Accident Fund
v Mdeyide
[2010] ZACC 18; 2011 (2) SA
26 (CC); 2011 (1) BCLR 1 (CC).
[21]
Makate
above n 3
at para 93. See also
Electricity Supply
Commission v Stewarts and Lloyds of SA
1981 (3) SA 340
(A) (
Escom
).
[22]
Donaldson Investments v Anglo-Transvaal
Colliers
1979 (3) SA 713
(W) at 719;
1980 (4) SA 204
(T) at 209.
[23]
See
Louw v Nel
[2010] ZASCA 161
;
2011 (2) SA 172
(SCA);
2011
(2) BCLR 295
(CC) at paras 21-3.
[24]
See [36]-[42] below.
[25]
Escom
above n 21
at 344F.
[26]
Escom
above n 21
at 344F.
[27]
Makate
above n 3
at para 93.
[28]
See SCA judgment above n 1 at paras 32
-
3.
[29]
See
Makate
above n 3 at 20.
[30]
See [26]-[42].
[31]
Gaffoor NNO v Vangates Investments (Pty) Ltd
[2012] ZASCA 52
;
2012 (4) SA 281
(SCA) (
Gaffoor
).
[32]
Id at para 36.
[33]
Id at para 28.
[34]
See also
Verrin
Trust & Finance Corporation (Pty) Ltd v Zeeland House (Pty) Ltd
1973 (4) SA 1
(C) (
Verrin Trust
)
at 10C-H, where Corbett J said the following in relation to section
32 of the Companies Act 46 of 1926 (the equivalent of section
115):
“
The
jurisdiction which the court exercises under section 32 is a
discretionary one and an applicant under the section is not entitled

to an order
ex debito justitiae
[as of right]”.
In relation to the effect
of the delay in instituting an application for rectification, the
learned judge further held (at 14C)
that:
“
I
regard the lapse of time, therefore, as having a bearing upon the
equities involved in what might be a temporary disturbance
of the
status quo rather than as constituting any sort of legal bar”.
See
also
Bayly v Knowles
[2010] ZASCA 18
;
2010 (4) SA 548
(SCA)
at para 25, where the Court said the following in relation to
section 252:
“
In
any exercise of a discretion under section 252(3) the court is bound
to consider not only the interests of the warring shareholders
but
also those of shareholders who have stood apart and the best
interests of the company itself.”
[35]
See SCA above n 1 at paras 35
-
7.
The SCA, at paras 36 and 37, held that—
“
Indeed,
in principle all rights are susceptible to prescription except for
rectification claims (and other claims rooted in real
rights) in the
case of extinctive prescription.  The basis for this exclusion
is that this type of common law claim has
no correlative debt within
the meaning of the word. Thus, it does not alter the rights and
obligations of the parties and create
a new contract for the parties
– it merely corrects the erroneous reflection of those rights
or obligations in the written
memorial to accord with the true facts
and give effect to what has always been the actual intention of the
parties.
But
the clubs’ case is entirely different from the rectification
cases discussed above. The golden thread running through
them is
that the rectification would neither constitute any delivery of
property nor alter the rights and obligations of the
parties –
it would simply correct the erroneous recordal of those rights.”
The explication of this
central theme is questionable in the context of section 115 of the
Companies Act.  A court called
upon to rectify a company’s
register of members may, in appropriate circumstances, determine the
ownership or entitlement
to the shares in dispute.  This
determination extends beyond “simply correct[ing] the
erroneous recordal of those
rights”.  See
Verrin Trust
above n 34 at 9G.
[36]
In SCA judgment above n 1 at para 31 Maya ADP
states:
“
And
the description of the relief sought by the clubs as a mere request
for a declarator does not tally with what is set out in
their notice
of motion and is patently wrong.”
[37]
61 of 1973.
[38]
See, for example,
Myathaza
v Johannesburg Metropolitan Bus Services (SOC) Limited t/a Metrobus
[2016] ZACC 49
; (2017) 38
ILJ
527 (CC);
[2017] 3 BLLR 213
(CC);
Makate
above n 3; and
Mdeyide
above n 20.
[39]
Myathaza
above n
38 at paras 66-8
.
[40]
Zimmerman
Comparative
Foundations of a European Law of Set-Off and Prescription
(Cambridge University Press, Cambridge 2002) at 62, citing the
“famous definition contained in in Inst.  See III,
13
pr., as translated by Peter Birks and Grant McLeod, Justinian’s
Institutes (1987)” in fn 1.
[41]
Hosten et al (eds)
Introduction
to South African Law and Legal Theory
(Butterworths, Durban-Pretoria 1983) at 385.  See also De Wet &
Van Wyk
Die Suid-Afrikaanse
Kontraktereg & Handelsreg
5 ed
(Butterworths, Durban 1995) vol 1 at 1.
[42]
Ellis “Civil Procedure” in Joubert &
Faris (eds)
Law of South Africa
2 ed (Lexis Nexis Butterworths, Durban 2006) vol 3 at para 242.
[43]
Id.
[44]
Hosten et al above n 41 at 386.
[45]
In
Oertel v
Direkteur van Plaaslike Bestuur
1983
(1) SA 354
(A) at 370B-375A, it was held that a statutory legal
obligation may constitute a “debt” under the
Prescription Act.
>
[46]
Makate
above n 3
at para 85.
[47]
And also virtually all legal systems, see
Zimmerman above n 40 at 62.
[48]
Campbell and Thomas (eds)
Fundamental
Legal Conceptions as Applied in Judicial Reasoning by Wesley Newcomb
Hohfeld
(Ashgate, Aldershot 2001).
See also the discussion in Loubser
Extinctive
Prescription
(Juta & Co Ltd,
Kenwyn 1996) at 26-7.
[49]
Compare
Estate Orpen
v Estate Atkinson
1966 (2) SA 639
(C)
at 641C-E.
[50]
National Stadium South Africa (Pty) Ltd v
Firstrand Bank Ltd
[2010] ZASCA 164
;
2011 (2) SA 157
(SCA) at paras 30-1.
[51]
Id at para 31.
[52]
ABSA Bank Ltd v Keet
[2015]
ZASCA 81
;
2015 (4) SA 474
(SCA) at paras 20-26
[53]
Boundary Financing Ltd v Protea Property
Holdings
(Pty)
Ltd
[2008] ZASCA 139
;
2009 (3) SA 447
(SCA) (
Boundary Financing
).
[54]
Bester NO v Schmidt Bou Ontwikkelings CC
[2012] ZASCA 125; 2013 (1) SA 125
(SCA).
[55]
Gaffoor
above n
31.
[56]
Majority judgment at [28].
[57]
Id at para.33.
[58]
Id at para 28.
[59]
See
Botha v Rich
N.O.
[2014] ZACC 11
;
2014 (4) SA 124
(CC);
2014 (7) BCLR 741
(CC); and
Business
Zone 1010 CC t/a Emmarentia Convenience Centre v Engen Petroleum
Limited
[2017] ZACC 2.
[60]
Mdeyide
above n 20;
Brümmer
v Minister for Social Development
[2009] ZACC 21
;
2009 (6) SA 323
(CC);
2009 (11) BCLR 1075
(CC); and
Mohlomi v Minister of Defence
[1996] ZACC 20; 1997 (1) SA 124 (CC); 1996 (12) BCLR 1559 (CC).
[61]
Kilroe-Daley v Barclays National Bank Ltd
[1984] ZASCA 90
;
1984 (4) SA 609
(A)
at 624C-E.
[62]
Oertel
above n
45 at 370B-375A.
[63]
Gaffoor
above n
31 at para 36.
[64]
Compare
Verrin
above
n 34 at 10C-H.
[65]
Mdeyide
above n
20 at paras 11-20, 42-52.
[66]
Myathaza
above n
38 at paras 43-56.
[67]
See
Boundary
Financing
above n 53 at para 13.
[68]
See
Makate
above
n 3 at paras 98-100.
[69]
Makate
above n 3
at para 85.
[70]
High Court judgment above n 6 at para 42.
[71]
In terms of section 65 of the Companies Act.
[72]
SCA judgment above n 1 at para 38.
[73]
Barnett
above n
12 at para 20.
[74]
Loubser above n 48 at 94.  Compare
Masstores
(Pty) Limited v Pick n Pay Retailers (Pty) Limited
[2016]
ZACC 42; 2017 (1) SA 613 (CC); 2017 (2) BCLR 152 (CC).
[75]
Barnett
above n
12 at para 20.
[76]
Radebe v Government of the Republic of South
Africa
1995 (3) SA 787
(N) at
803D-804G.
[77]
Barnett
above n
12 at para 21.
[78]
Much of the difficulty I have with the majority judgment is in
paragraphs 25, 28, 30-32, 34-42, 49-53 and 55.
[79]
Mdeyide
above n
20
at para 8; see also South African Law Commission
“Prescription Periods”
Discussion Paper
126, July
2011 at para 3.8 (“
The main practical
purpose of extinctive prescription is the promotion of certainty in
the affairs of individuals, and particularly
in the relationship
between the debtor and creditor.”)
[80]
Section 17(1)
of the
Prescription Act provides
that a court shall not, of its own motion, take notice of
prescription.  On this section, see
Sarrahwitz
v Maritz N.O.
[2015] ZACC 14
;
2015 (4)
SA 491
(CC);
2015 (8) BCLR 925
(CC) at paras 12
-
4.
[81]
Section 252(3).
[82]
Makate
above n 3 at para 92.
[83]
Mdeyide
above n 20 at para 8.
[84]
See [26].