MATHONSI J: At the commencement of trial in this matter Advocate Nkiwane who appears for the
first Defendant moved an application for an amendment of the first Defendant's
plea to consolidate the special pleas filed and the plea on the merits as well
as to amend the issues for trial that had been agreed at the pre-trial
conference. The said application had
been filed on the 16th August 2010 through the chamber book but was
not placed before a Judge for unknown reasons.
The plaintiff, through her counsel, Mr Mlala consented to the application
and I granted the application by consent.
The impart of that is that the issues for trial now stand as:
1. whether
or not plaintiff's claims in the main and/or in the alternative in HC 511/09
are prescribed;
2. whether or not plaintiff in HC 511/09
has locus standi to institute this action;
3. whether
or not the alleged contract, if proved, is void or whether or not it is
enforceable;
4. whether
or not plaintiff in HC 511/09 is entitled to the relief claimed in the
alternative, and, if so, the basis and quantum of that relief; and
5. whether
or not Ernest Phillip Sithole sold house No 1651 Dulibadzimu to Philimon Singo.
Advocate
Nkiwane then raised a preliminary point that the Plaintiff's claim is
prescribed in terms of the Prescription Act and should therefore fail on that basis
alone. He did not pursue the other
points raised in the special plea electing to argue only the issue of
prescription.
The background of the matter is that
the Plaintiff was appointed executrix of the estate of the late Philimon Singo
by the Additional Master on the 4th April 2007. The first Defendant was appointed executrix
of the estate of the late Ernest Phillip Sithole who died on 29th
October 1996, on the 18th May 2006.
The Plaintiff issued summons in this matter on the 3rd April
2009 seeking an order;
(a)
Confirming as valid and enforceable,
the sale agreement entered into between the late Philimon Singo and the late
Ernest Phillip Sithole in 1995 involving house number 1651 Dulubadzimu,
Beitbridge;
(b)
Directing the first Defendant in her
capacity as executrix dative of the estate of the late Sithole to sign transfer
papers passing transfer of that house to the estate of the Philimon Singo; and
(c)
Alternatively, payment of damages in
the sum of R200 000-00 as the replacement value of the house in question.
In that summons Plaintiff claims that the
purchase price was paid in full in 1995 and that the late Singo took occupation
immediately thereafter. For some reason
transfer was not given to Singo until the late Sithole died aforesaid in
1996. In paragraphs 6 and 7 of the
declaration, Plaintiff avers that the late Singo lodged a claim against the
estate late Sithole before his death but the fourth Defendant disregarded that
claim as a result of which a review application was lodged in this Court as
case number HC 1479/06.
In her replication to the first Defendant's plea,
the Plaintiff alleges, inter alia that the claim had not
prescribed because the cause of action “arose late in 2006 when the first
Defendant threatened to evict the plaintiff's tenant.” I shall return to deal with that issue later
in this judgment.
The claim is opposed by the first Defendant who,
as already stated has raised the issue of prescription. In support of that preliminary point, which I
allowed to be raised at commencement of trial in terms of the proviso to
subsection (2) of Section 20 of the Prescription Act [Chapter 8:11], Advocate Nkiwane submitted that the
cause of action arose when the purchase price was paid in 1995 and therefore
the claim prescribed at the expiration of the period of 3 years in terms of
section 15(d) of the Act.
Advocate
Nkiwane further argued that even if it could be said that the
death of both the creditor and the debtor interrupted the running of
prescription, the claim should have been made within a period of 1 year after
the appointment of the executrix of the late Sithole's estate on 18 May 2006
and even that of the late Singo on 4th April 2007. Whichever way when the summons was served on
22 June 2009, the claim had prescribed. This
is particularly so, as by Plaintiff's own admission the cause of action arose
in 2006.
In response, Mr
Mlala for the Plaintiff has argued that the claim has not prescribed
because we should reckon the period of 3 years from 2006 when first Defendant
threatened to evict the Plaintiff's tenant.
He further submitted that the sale agreement between the parties was
subject to a suspensive condition, namely that the late Sithole was to secure
the consent of the third Defendant to transfer title to the late Singo. As this was not possible until the money due
to the third Defendant had been paid in full, which was only done in 2006,
after the late Singo sold his cattle, prescription did not commence to run
until 2006.
The law on when the cause of action arises has
been stated very clearly in a number of decided cases. In Chiwawa
v Mutzuris and Others HH 7/09 (as yet unreported) at page 5 of the
cyclostyled report, MAKARAU JP (as she then was) stated thus:
“It is now the
settled position in our law, in my view, that the term refers to when the
plaintiff is aware of every fact which it would be necessary for him or her to
prove in order to support his or her prayer for judgment. It is the entire set of facts that the
Plaintiff has to allege in his or her declaration in order to disclose a cause
of action but does not include the evidence that is necessary to support such a
cause of action.”
I am not persuaded that prescription started
running in 1995 because then the participants still had issues to resolve with
third Defendant. In my view the
Plaintiff's claim became extant in April 2006 when first Defendant and his
family made it clear they were not going to honour the late Sithole's
undertaking. From then on prescription
started running.
It has been argued half-heartedly that the
lodgement of a claim against the estate by Singo interrupted prescription. By her own admission, the Plaintiff says the
claim was rejected (paragraph 7 of Plaintiff's declaration). This could not interrupt prescription. A further argument has been advanced that the
review application filed as HC 1479/09 was interruptive.
Section 19 of the Prescription Act provides:
“(2) The running of prescription shall, subject
to subsection (3)
be interrupted by the service on the
debtor of any process whereby the creditor claims payment of the debt
(3) unless the debtor acknowledges liability,
the interruption of prescription in terms of subsection (2) shall lapse and the
running of prescription shall not be deemed to have been interrupted, if the
creditor;
(a) does not successfully prosecute his
claim under the process in question to final judgment.
(b) ----.”
Case No. HC 1479/06 was not successfully prosecuted. In fact after a notice of opposition was
filed, the application was abandoned.
This should put that argument to bed really but even if I am wrong on
that point, that review application cannot be said to have interrupted prescription
in the sense of the subject matter of this action. This is because what was sought there was a
review of the decision of the fourth Defendant to reopen the estate late
Sithole and not the relief now being sought.
What remains is for me to deal with the issue of whether the death of
Singo interrupted prescription as to bring the matter under the provisions of
Section 17(1) (e) of the Prescription Act.
Section 17(1) (e) provides:-
“If the creditor or
the debtor is deceased and an executor of the estate in question has not been
appointed and the period of prescription would, but for this subsection, be
completed before or on, or within one year after the date on which the relevant
impediment referred to in paragraph (a), (b), (c), (d) or (e) has ceased to
exist, the period of prescription shall not be completed before the expiration
of the period of one year which follows that date.”
The Plaintiff was appointed executrix of the estate late Singo on 4th
April 2007. Computing the prescription period from April 2006 as I have already
determined, the period of prescription would have been completed on the 30th
April 2009. For that reason it would not
have been completed “before, on or within one year after the impediment had
ceased to exist.” In fact it ceased to
exist two years before prescription was due to be completed.
A simple interpretation of that provision means that the Plaintiff does
not have the benefit of an extra year in this matter because the running of
prescription was not interrupted at all.
Can it be said that there was judicial interruption of the running of
prescription as envisaged by Sections 7 and 19 of the Act? The 2 sections are almost identical.
Section 19(2) is a peremptory provision admitting no variation
whatsoever. It specifically provides
that prescription shall only be interrupted by “service on the debtor of any
process whereby the creditor claims payment.”
Section 7(2) is worded the same in respect of a claim for ownership.
In the premises, the issuance of the Summons in this matter on the 3rd
April 2009 did not interrupt the running of prescription which continued to run
until completion on the 30th April 2009. I have used the last day of April 2009
because the exact date in April 2006 when the Plaintiff, or is it the late Singo,
because aware of the dispute has not been stated.
Accordingly, when the summons was served on first Defendant on the 22nd
June 2009 the Plaintiff's claim had prescribed in terms of the Prescription
Act, [Chapter 8:11] and therefore unenforceable Prescription strikes at the
root of the Plaintiff's allegation of a right by asserting that such a right permanently
ceased to be enforceable. See Reuben v Meyers 1957 (4) SA 57 at page
58 F-G. It merely bars the Plaintiff's
remedy although it does not extinguish the cause of action.
In the result I make the following order; that
1. The
first Defendant's plea in abatement on the basis of extinctive prescription be
and is hereby upheld.
2. The costs of this action
shall be borne by the estate late Philimon Singo.
Messrs
Cheda and partners, plaintiff's legal practitioners
Messrs T. Hara and partners, 1st
Defendant's legal practitioners
