GOWORA
JA: This
is a composite judgment in respect of two appeals which were, at the
request of the parties, consolidated and heard at the same time.
The
appeals are against two separate judgments by the High Court
dismissing special pleas of prescription raised by the appellants in
respect of a claim for specific performance launched by the
respondent.
The
following are the salient facts to the dispute. The two appellants
are sisters. In November 2014, the first respondent, (hereinafter
referred to as the respondent) issued summons under separate case
numbers against the appellants in the High Court claiming transfer of
certain immovable properties from the appellants on an individual
basis.
Under
Case No HC 10410/14 in which the respondent sued the first appellant,
the respondent alleged in the declaration that the first appellant
had sold to him two immovable properties, namely Stands 285 and 286
Colne Valley Township, held under Deed of Transfer numbers 1788/69
and 1688/69 respectively.
In
respect of the second appellant, under Case No HC 10411/14, the
respondent alleged that the former had sold to him Stands 296 and 297
Colne Valley Township held under Deed of Transfer numbers 1597/69 and
1602/69.
In
both declarations, which, with the exception of the names of the
defendant and the identity of the stands in dispute, were identical,
the respondent alleged that after the sale he had sought to
consolidate his title over the properties by way of registration at
the offices of the Registrar of Deeds. He had then realized that the
appellants were opposed to the registration.
Each
of the appellants entered an appearance to defend the claims.
Subsequent to this they filed special pleas. I set out hereunder the
plea by the first appellant:
“1.Even
if Plaintiff's averment that he personally acquired his rights in
respect of the two [properties on 6 August 2002 was correct (although
it is denied), the consequent obligations allegedly owed to him
personally by First defendant were extinguished after three years
elapsed, by reason of s 14 and 15 of the Prescription Act [Chapter
8:11].
2.
The defence raised in Paragraph 1 above is one of substance which
does not involve going into the merits of the case and which, if
allowed, will dispose of the case.
3.
Plaintiff's averment that until 2015 he mistakenly believed that
the rights flowing from the Agreement of Sale of 6 August 2002 were
owed to his company, rather than himself, does not assist his
supposed cause of action and is irrelevant.
Wherefore
first defendant prays that the plaintiff's claim be dismissed with
costs of suit. “
The
second appellant filed an identical plea, the only difference being
the dates as to when prescription was alleged to have set in. Neither
filed a plea on the merits.
Thereafter
the two matters were set down on separate dates for hearing before
the same judge who issued two separate judgments. In the court a
quo,
the finding was that the agreement did not state when ownership
should have passed to the purchaser, and that in the absence of an
agreed date the purchaser should have placed the seller in mora.
In both cases the court held that from the papers it was not clear
whether demand had been made if at all and therefore it could not
make a finding that the claim had prescribed. It proceeded to dismiss
the special plea in both cases.
The
first appellant contends that the court a
quo
erred in the following respects: -
-
in not finding that the respondent's supposed cause of action for
the transfer of the properties arose on signature of the alleged
agreement on 4 May 2002 and hence prescribed on 4 May 2005;
-
In finding that a demand for transfer was an ingredient in the
respondent's supposed cause of action and not merely a step in the
enforcement of the purported claim;
-
alternatively, in not finding that the first respondent himself
impliedly claims to have made such demand in 2009, such that even on
the reasoning that is respectfully criticized in the second ground of
appeal, the claim would have prescribed sometime in 2012;
-
in not finding that the first respondent's claim was prescribed and
in not dismissing the action.
In
my view the issues in the appeal are two pronged. The first issue is
concerned with the question of cause of action as determined by the
court a
quo.
The second issue is related to the manner in which the court a quo
arrived at its determination that the debt had not prescribed
resulting in the dismissal of the two pleas filed by the appellants.
At
issue before the court a
quo
was whether or not the claims mounted against the appellants by the
respondent had prescribed. The party who alleges prescription must
allege and prove the date of the inception of the period of
prescription. Generally, prescription starts to run as soon as the
debt becomes due.
In
order to determine the question of prescription the court first had
to make a finding on the cause of action upon which the respondent's
claim was premised and when specifically the cause of action arose.
What constitutes 'a cause of action' was described in Abrahams
& Sons v SA Railways and Harbours
1933 CPD 626. At 637 WATERMEYER J stated:
“The
proper meaning of the expression 'cause of action' is the entire
set of facts which gives rise to an enforceable claim and includes
every act which is material to be proved to entitle a plaintiff to
succeed in his claim. It includes all that a plaintiff must set out
in his declaration in order to disclose a cause of action.”
In
casu,
the cause of action is the right of the respondent to transfer of the
properties in terms of the alleged agreements of sale. The court a
quo
dealt with the issue in the following terms;
“Other
than the above clause there is no other clause which deals with the
issue of transfer of ownership. It is clear from the above clause
that it does not say when exactly transfer of ownership should be
effected. In the absence of an agreed date of transfer of ownership,
the first defendant's submission that prescription began to run on
6 August 2002 cannot be said to be correct. It cannot be correct
because the debtor who was the seller was never placed in mora.
The seller was never made aware that she was now supposed to effect
transfer of ownership.”
The
clause relating to transfer in the alleged agreement of sale read as
follows:
“OCCUPATION,
RISK AND PROFIT
Seller
shall give vacant possession of the property on or before the date of
transfer. Risk and profit shall pass on to the Purchaser on the date
of occupation or transfer whichever is the earlier.
….
….
PAYMENT
OF PURCHASE PRICE
The
purchase price shall be paid after transfer.”
In
paras 5 and 6 of the declaration in both actions the respondent set
out his cause of action for an order for specific performance. Both
read:
“5. Sometime
in 2002, the plaintiff and defendant entered into a sale agreement
relating to the two stands. Plaintiff thereafter complied with all
his obligations in terms thereof.
6. Plaintiff
subsequently sought to consolidate his title via registration through
second Defendant's office and realized that the first defendant was
in fact opposing such overtures.”
Generally,
the making of a contract of sale does not per
se
pass ownership in the thing sold. The authorities are clear that the
signing of an agreement does not automatically translate to the
transfer of property but that transfer can be effected at an agreed
time or upon demand. In Smart
v Rhodesian Machine Tools Ltd
1950 (1) SA 735(SR), TREDGOLD J (as he was then) accepted the general
rule that where a contract fixes no time for performance, the debtor
is not in mora
until a reasonable time for performance has elapsed and the creditor
has demanded performance.
This
principle as stated above was also highlighted in Asharia
v Patel & Ors
1991(2) ZLR 276(S), wherein GUBBAY CJ outlined the applicable
principle where the time for performance in an agreement has not been
agreed in the agreement itself. He stated:
“The
general rule is that where the time for performance has not been
agreed upon by the parties, performance is due immediately on
conclusion of their contract or as soon thereafter as is reasonably
possible in the circumstances. But the debtor does not fall into mora
ipso facto
if he fails to perform forthwith or within a reasonable time. He must
know that he has to perform. This form of mora,
known as mora
ex persona,
only arises if, after a demand has been made calling upon the debtor
to perform by a specified date, he is still in default. The demand,
or interpellatio,
may be made either judicially by means of a summons or
extra-judicially by means of a letter of demand or even orally; and
to be valid it must allow the debtor a reasonable opportunity to
perform by stipulating a period for performance which is not
unreasonable. If unreasonable, the demand is ineffective.”
The
appellants allege that the cause of action would have arisen in 2002,
with the respondent contending that demand was necessary to place
them in mora for failure to abide by their obligation in terms of the
alleged agreements of sale. Absent such demand, it was contended by
the respondent that there would have been no cause of action. It was
further contended by the respondent that the appellants had failed to
show when such demand placing them in mora
was made. To this end, it was argued that they had both failed to
show when exactly prescription began to run.
The
term debt refers to anything that is owed or due, such as money,
goods or services which one person is under an obligation to pay or
render to another. Debt is defined in the Prescription Act as
follows:
2
Interpretation
In
this Act—
“debt”,
without limiting the meaning of the term, includes anything which may
be sued for or claimed by reason of an obligation arising from
statute, contract, delict or otherwise.
Going
by the definition of debt as contained in the Prescription Act the
right of the purchaser to place a seller in mora
is itself a debt in favour of the purchaser which debt can prescribe.
In the context of this dispute, debt would constitute the right to
have transfer into the respondent's name. Critically, the Act
provides that prescription starts running as soon as a debt becomes
due. Section 16 of the Act reads:
“16
When prescription begins to run
(1)
Subject to subsections (2) and (3), prescription shall commence to
run as soon as a debt is due.
(2)
If a debtor wilfully prevents his creditor from becoming aware of the
existence of a debt, prescription
shall
not commence to run until the creditor becomes aware of the existence
of the debt.
(3)
A debt shall not be deemed to be due until the creditor becomes aware
of the identity of the debtor and of
the
facts from which the debt arises:
Provided
that a creditor shall be deemed to have become aware of such identity
and of such facts if he could
have
acquired knowledge thereof by exercising reasonable care.”
The
issue before the High Court was centered on the date that the debt
became due. In considering the issue, the court a
quo
drew a distinction between a debt due under an agreement of sale and
an agreement for the transfer of property. The court held that the
issue of transfer of an immovable property was a separate issue which
ought to have been agreed between the parties. The alleged agreements
of sale which were placed before the court a
quo
were silent as to when transfer was supposed to have been effected.
In casu,
no date had been agreed upon in the alleged agreements and no
evidence was led by any of the parties regarding the issue as whether
demand had been made or not, and if it had, when such demand had been
made.
The
question centered on when the cause of action was alleged to have
arisen and the matter therefore has to be decided in the context of
the pleadings filed in the court
a quo.
For
purposes of calculating the relevant time when prescription begins to
run in respect of a debt regard must be had to the date when the
cause of action arose.
In
opposing the prayer for the upholding of a plea of prescription the
respondent filed written submissions. The facts relied upon by the
respondent were, contrary to the law, set out in the heads. It is
pertinent to set the submissions in detail:
-
The
debt was paid through the transfer made in favour of the plaintiff's
company. Both parties believed that the obligation has been though
erroneously, properly extinguished. Under the circumstances there
was no knowledge that there was a debt which needed to be paid
because parties believed they had performed the contract fully.
Therefore, from the time the properties were registered to the
nullification of the title deed, the creditor had no knowledge of
the debt and prescription could not be said to be in operation; and
-
The
debt only arose after this Honourable Court cancelled the deed in
terms of Case Number HC 6909/11. It is from this period that the
plaintiff/creditor became aware of the debt, that is the time the
cause of action was created. Three years have not yet elapsed from
the day the court granted an order cancelling the title deed.
-
It
is respectfully submitted that by signing the power of attorney to
pass transfer and declarations the first defendant was tendering
payment of the debt, that is, performing the obligations in terms of
the contract. The only issue is that payment was made to a proxy.
The plaintiff believed that his rights were properly secured by his
proxy, that is, the company. Clearly, under the circumstances, it
cannot be said plaintiff knew that the debt was still owing.
It
is trite that after demand is made for transfer prescription would
have commenced to run. The court declined to grant the plea in the
absence of evidence as to when the appellants were placed in mora
for the transfer of ownership in the stands in question.
From
the grounds raised by the appellants, the issue that arises for
determination in this court is whether or not the court a
quo
erred in finding that the respondent's claims against the
appellants had not been hit by prescription. To this end it was
argued on behalf of the appellants that the respondent was entitled
to demand transfer upon signing the agreement and in the absence of
such demand the claim had prescribed.
The
court a
quo
correctly found that for prescription to start running there was need
for the respondent to place the appellants in mora
by demanding transfer. Having found that the cause of action must be
triggered by a demand the court was obliged to then determine whether
or not there was such a demand and if so whether or not prescription
was established. It could only have dismissed or upheld the plea upon
a correct finding of the above two issues.
Generally,
a plea is the answer by a defendant to the claim by the plaintiff as
set out in particulars of claim or in a declaration as the case may
be. In addition to a plea which raises a defence on the merits of a
claim, a defendant may also raise a special plea which has its object
either to delay the proceedings or to quash the action altogether.
The
defence of prescription should not be raised by way of exception but
must be specifically pleaded. The plea must set out sufficient facts
to show on what the defence is based. However, due to its nature, the
plea of prescription is a special plea. Such a plea is provided for
in the High Court Rules 1971. Order 21, r 137 specifies the manner in
which a party wishing to rely on a special plea may raise such. It
provides:
“SPECIAL
PLEAS,
EXCEPTIONS,
APPLICATIONS
TOSTRIKE
OUT
AND APPLICATIONS
FOR PARTICULARS
137.
Alternatives to pleading to merits: forms
(1)
A party may—
(a)
take a plea in bar or in abatement where the matter is one of
substance which does not involve going
into
the merits of the case and which, if allowed, will dispose of the
case;
(b)
except to the pleading or to single paragraphs thereof if they embody
separate causes of action or
defence
as the case may be;
(c)
apply to strike out any paragraphs of the pleading which should
properly be struck out;
(d)
apply for a further and better statement of the nature of the claim
or defence or for further and better
particulars
of any matter stated in any pleading, notice or written proceeding
requiring particulars.
[Subrule
amended by s.i. 120 of 1995]”
In
dismissing the special plea filed by the first appellant the court
said:
“As
I have already stated, following the agreement of sale the purchaser
(plaintiff) ought to have demanded transfer of ownership from the
seller (first defendant) thereby placing the debtor in mora.
Although the plaintiff in his summons says that he demanded transfer
of ownership, nothing in the papers shows when demand was done. With
this the court cannot tell when prescription began to run….in the
absence of evidence showing when exactly the first defendant was
placed in mora by the plaintiff for transfer of ownership of the
properties from the first defendant to the plaintiff, I am not
inclined to grant the first defendant's special plea.”
The
second appellant's plea also got similar treatment with the court
remarking as follows:
“The
problem I am faced with is that I cannot tell from the papers when
plaintiff demanded transfer of ownership of the stands following the
agreement of sale. The plaintiff simply said that when he demanded
transfer of ownership the first respondent refused to effect it.
However he does not say when he demanded transfer. On the other hand
the defendant disputes that the parties ever entered into an
agreement of sale vis-à-vis
the two stands. So under the circumstances there is no way the
plaintiff could ever have demanded transfer of ownership from the
defendant. What this simply means is that the first defendant is
saying that she was never placed in mora. If I go by the plaintiff's
submissions all I can say is that although demand for transfer was
made thereby placing the first defendant in mora,
the date on which transfer should have been made is not stated and
therefore that is unknown. Under the circumstances I cannot tell when
prescription should have begun to run. For these reasons it cannot be
said that the plaintiff's claim is prescribed.”
The
court a
quo
found that the parties had not made it clear in the agreement of sale
as to when transfer was to be effected. The court was correct.
However, it then went on to to find that the purchaser should have
put the seller in mora
by demanding transfer and that that is the date from which the debt
would have become due. I think the court a
quo
cannot be faulted in concluding as it did that the cause of action as
related to the obligation to transfer where an agreement of sale does
not specify a time, such obligation only arises upon demand by the
purchaser.
In
a plea of prescription the onus
is on the defendant to show that the claim is prescribed but if in
reply to the plea the plaintiff alleges that prescription was
interrupted or waived, the onus
would be on the plaintiff to show that it was so interrupted or
waived. This principle was clearly set out in Cassim
v Kadir
1962(2) 473 (NPD), at 475H-C as follows:
“In
regard to the second answer to the plea of prescription, namely that
there has been interruption, the evidence falls very far short of
what is required. It is true that the plaintiff in his evidence
verbally admitted signing the deed of donation, and that he had, at
some time or other admitted that he was liable to transfer the
property to the plaintiff. Even if I am to assume at this stage, for
present purposes only, that plaintiff's evidence is true, I am
quite unable to determine from that evidence the date when such
admission of liability was made. It is clear that defendant,
according to plaintiff's own evidence, maintained in 1955, or
thereabouts, that plaintiff was not entitled to transfer, and
disputed plaintiff's alleged right to transfer of the property now
claimed. He said, to use the plaintiff's own words, in evidence,
that plaintiff “had nothing”, meaning, quite clearly, that
plaintiff had no right to the property which he seeks to claim. As I
understood him, however, Mr Raftesath did not seriously urge that
this interruption had been proved, and I do not think it is necessary
to analyse the evidence further; nor is it desirable at this stage,
for to do so would make it inevitable for me to express an opinion on
the quality of the evidence given by the plaintiff in regard to the
vital issue as to whether the deed was ever signed, and how the
signed deed came to be lost.”
In
Yusaf
v Bailey
and
Others
1964(4) SA 117, the question of onus
regarding the special plea of prescription was considered as follows:
“… A
special plea was filed to the effect that plaintiff's claim was
prescribed by virtue of s 3(2) of Act 18 of 1943, as the issue of
Drum was published on 20 June, 1961, and the summons was served on 29
June 1962. The replication to this special plea is that the article
was brought to the plaintiff's knowledge for the first time on or
after 7 July, 1961, and that he ascertained the identity of the
defendants on the same date as the defamatory article was first
brought to his knowledge.
….
The
point therefore arises whether the onus
lies
on the defendants to establish the special plea, viz,
that the facts are such as to entitle them to a dismissal of the
action because the claim has become prescribed or whether the onus
lies on the plaintiff to establish the allegations contained in the
replication to the special plea.
….
The
onus
then being on the plaintiff to satisfy the court in terms of his
replication to the special plea that his claim had not become
prescribed before service of summons and as the only evidence in this
regard is that of the plaintiff himself consideration, as to whether
that onus had been discharged cannot be divorced from an assessment
of his credibility as a witness. Consequently, no decision on the
special plea could, as originally suggested, be given before hearing
the evidence on the whole case.”
After
being served with the special plea of prescription the respondent
should have replicated. The purpose of a replication is to inform the
court and the defendant of the plaintiff's rebuttal to the special
plea. The failure by the respondent to file a replication to the
special plea means that there are no disputes for determination on
the special plea. In the absence of such replication there would be
no issue for determination by the court a
quo.
When
one speaks of the need to discharge an onus, it immediately becomes
clear that there is an evidentiary burden that must be met. There is
no suggestion that such burden as required to be met was met by
documents filed of record. There were no affidavits placed before the
court a
quo.
Neither
of the parties led evidence. Thus there was no evidence as to when
demand for transfer was made. There was no evidence as to when the
cause of action actually arose and given the fact that this was
dependent on whether or not the appellants were placed in mora,
the court was left in suspense on these very crucial issues. The
court seems to have been alive to the fact that there was a need for
a factual basis to be placed before it to facilitate a determination
on the crucial issue of when prescription could be said to have
started running.
The
remarks by the learned judge show that the court made a decision on
the special pleas in the absence of evidence. By adopting such an
approach the court erred. It was critical for the court to understand
the nature of the defences of prescription. The court disposed of the
special pleas in the same manner as provided for exceptions and
applications to strike out in the rules of the High Court 1975. The
distinction between these procedures was highlighted by MURRAY CJ in
Reuben
v Meyers
1957(4) SA 57(SR) at 58C-D, wherein the learned judge stated:
“According
to the modern practice a defence of prescription is raised by special
plea; in the Courts of Holland this was done by exception, a term
which as pointed out by INNES C.J., in Western Assurance Co. v D
Caldwell's Trustee, 1918 AD 262 at p 270, is used not in the narrow
sense applied to it in South Africa (and Southern Rhodesia), but as
covering a number of what would here be called special pleas.”
A
special plea is an objection on the basis of certain facts which do
not appear in the plaintiff's declaration or particulars of claim
and has the effect of either destroying or postponing the action. The
various forms of special pleas and the rationale underlying the
procedure were set out by GILLESPIE J In Doelcam
(Pvt) Ltd v Pichanick & Others
1999 (1) ZLR 390 (H), at 396B-F in which he said:
“The
purpose of a special plea is to permit a defendant to achieve prompt
resolution of a factual issue which founds a legal argument that
disposes of the plaintiff's claim. Special pleas are three in kind.
The plea in bar, by which a party may interpose a purely formal
objection to the jurisdiction of the court. The plea is available as
a plea to the jurisdiction or as a plea for the recusal of a judge
and in no other case. Other special pleas are available to disclose
some ground either for quashing or for delaying proceedings. Both are
usually termed pleas in abatement, although that expression is
properly used to describe the declinatory, rather than merely
dilatory plea. The plea in abatement, strictly so called, avers some
good ground, not disclosed in the declaration, which otherwise is
admitted, for denying the plaintiff relief. The dilatory plea
advances some fact, not disclosed in the declaration, which is
otherwise admitted, and which entitles the defendant to a stay of
proceedings.
Since
a special plea involves the averment of a new fact, it is susceptible
of replication and of a hearing at which evidence on this new fact
alone may be led.”
The
above dictum
shows that a special plea enables a litigant to obtain prompt
resolution of a dispute because it either delays the proceedings or
quashes them. Because of its ability to extinguish a claim there is
need for a judge faced with such a plea to hear evidence from the
parties. Herbstein & Van Winsen,: The Civil Practice of the
Supreme Courts of South Africa 5 ed Vol 1 at pp599-600 in explaining
the essential differences between an exception and a special plea,
articulated the need to adduce evidence in the case of a special plea
as follows:
“The
essential difference between a special plea and an exception is that
in the case of the latter the excipient is confined to the four
corners of the pleading. The defence raised on exception must appear
from the declaration itself; the excipient must accept as correct the
allegations contained in it and he may not introduce any fresh
matter. Special pleas, on the other hand, do not appear ex
facie
the pleading. If they did, then the exception procedure would have to
be followed. Special pleas have to be established by the introduction
of fresh facts from outside the circumference of the pleading, and
those facts have to be established by evidence in the usual way.
Thus, as a general rule, the exception procedure is appropriate when
the defect appears ex
facie
the
pleading, whereas a special plea is appropriate when it is necessary
to place facts before the court to show that there is a defect. The
defence of prescription appears an exception to this rule for it has
been held that the defence should be raised by way of special plea
even when it appears ex the plaintiff's particulars of claim that
the claim has prescribed, apparently because the plaintiff may wish
to replicate a defence to the claim of prescription, for example an
interruption.”
In
Beck's Theory and Practice of Pleading in Civil Actions 6th
ed., the learned author Isaacs at p 152 states:
“Pleas
in bar and pleas in abatement differ from exceptions precisely in
this, that they do always introduce fresh matter which must be proven
by evidence.”
In
fact, when one has regard to the rules of the High Court one discerns
a difference in the manner in which special pleas and exceptions
ought to be dealt with. R 140 is pertinent in this regard. The rule
reads:
“140.
Complaint by letter before applying to strike out or filing exception
(1)
Before—
(a)
making a court application to strike out any portion of a pleading on
any grounds; or
(b)
filing any exception to a pleading;
the
party complaining of any pleading may state by letter to the other
party the nature of his complaint and call
upon
the other party to amend his pleading so as to remove the cause of
complaint.
[Subrules
amended by s.i. 43 of 1992]
(2)
The costs of any such necessary letter and of any matters incidental
to it, including any necessary
conferences
with another legal practitioner, shall be allowable on taxation.
[Subrule
amended by s.i. 277 of 1981]
(3)
In dealing with the costs of any motion to strike out or of any
exception, the provisions of this rule shall
be
taken into consideration by the court.”
Whilst
prescription is by way of a plea, an exception is raised by way of a
court application. In terms of our rules of court an application
shall be accompanied by an affidavit from a deponent who can swear
positively to the facts contained therein. Critically there is no
provision for the filing of a court application where a special plea
is filed, and when regard is had to the nature of the plea of
prescription that a determination on the facts as to when the cause
of action arose, it must by implication become obvious that a factual
dispute must be decided. This can only be determined by the parties
leading viva
voce
evidence unless the dates are not in dispute.
This
position of the law was put beyond question by BEADLE CJ in Edwards
v Woodnut NO
1968 (4) SA 184(R), in which he stated the following:
“the
basic difference, however, between an exception and a plea in
abatement is that in the case of a plea in abatement evidence must be
led, whereas in the case of an exception the facts stated in the
pleadings must be accepted.”
It
can therefore be accepted as settled that evidence is necessary when
disposing of a matter in which a special plea of prescription is
raised. The rationale behind this is that where a party raises a
special plea as a defence, new facts arise and because of the
introduction of fresh facts which did not appear in the declaration,
there is need for a court to hear the evidence of the parties where
facts are disputed before making a ruling on the plea.
In
casu,
the court a
quo
disposed of the matter in the absence of such evidence. Clearly, a
dispute of fact as to when the cause of action arose was evident from
the special plea and this could only have been resolved through viva
voce
evidence.
The
respondent did not raise an objection to the special pleas, he filed
heads of argument. The purpose of heads of argument is to expound on
the law applicable to the facts placed before the court, and one
cannot plead through written submissions. It is also trite that one
cannot adduce evidence through heads of argument, but one may do so
either in affidavits or viva
voce
evidence.
In
casu,
there were no affidavits filed which could have justified the manner
of disposal of the dispute by the court a
quo.
In his book Extinctive Prescription, the learned author M M Loubser,
says the following at p8:
“From
one point of view, extinctive prescription simply concerns questions
of fact, namely whether a particular period of time, prescribed by
statute in respect of a particular obligation, has passed, and
whether other conditions prescribed by statute on prescription have
been met. If so, and if the debtor chooses to rely on it,
prescription takes effect.”
The
failure by the court a
quo
to call evidence was akin to a court which determines a matter
through the application procedure in the face of material disputes of
fact. The learned judge in the court failed to appreciate that
prescription is a defence and therefore a matter of substance. The
court a
quo
and the parties before it, ignored the nature of the pleading that
was central to the dispute. Essentially what had to be disposed of
was a plea. Its nature did not change by virtue of having the
adjective special placed before it. It remained a plea which is a
defence and which the court could only determine after hearing
evidence unless the facts surrounding the plea were common cause or
admitted. The facts were in dispute. It was therefore a matter for a
trial cause. It is referred to as a special plea mainly due to its
ability to destroy the action or postpone the proceedings.
Curiously
the court disposed of the matter on a basis other than that argued by
the parties. It was up to the respondent to prove that prescription
did not start to run until demand for transfer would have been made.
This issue is a question of fact. None of the pleadings filed on
behalf of the respondent raises this issue.
In
the event, the court a quo
did not properly exercise its jurisdiction. In my view due to the
manner of pleading or lack thereof, there were no issues for
determination before the court a
quo.
The failure by the respondent to file a replication to each of the
pleas of prescription disabled the court a
quo
from determining the real issues between the parties. There was no
basis on the record justifying the dismissal by the court a quo of
the pleas of prescription. In so doing the court a
quo
misdirected itself.
In
view of the failure to adhere to the correct procedure the judgments
by the court a
quo
must be set aside. In my view the court should have in terms of the
rules given directions to the parties on how the matter should have
proceeded. There was nothing which precluded the court from directing
the respondent to file a replication and from thence to hear the
matter on the issues raised in the plea and the replication. In the
circumstances it seems to me just that this is the procedure that the
court should adopt in order for the special pleas to be properly
dealt with, and an order for the remittal of the matter to the court
a
quo
would best achieve this.
In
the premises the following orders will issue:
Case
Number SC 457/15
-
The
appeal be and is hereby allowed with costs.
-
The
judgment of the court a
quo
is set aside.
-
The
matter is remitted to the court a
quo
for a proper determination of the plea of prescription on evidence.
Case
Number SC 458/15
-
The
appeal be and is hereby allowed with costs.
-
The
judgment of the court a
quo
is set aside.
-
The
matter is remitted to the court a
quo
for a proper determination of the plea of prescription on evidence.
HLATSHWAYO
JA:
I agree
BHUNU
JA:
I agree
Wintertons,
legal practitioners for the appellants
Ngarava,
Moyo & Chikono,
legal practitioners for the first respondent
1.
At p 280
