The
defendants entered appearance to defend, and have raised a special plea that
the claim has prescribed on account that the summons were issued three years
after the debt became due.
The
special plea is not supported by any affidavit. Equally, the plaintiff's reply
to this special plea is an unsworn statement by the plaintiff's legal
practitioner. In brief, the latter states that the plaintiff's claim has not
prescribed because the second defendant (and the first defendant, through the second
defendant) acknowledged liability and offered to pay the plaintiff's expenses.
The
plaintiff conceded that the claim against the third defendant had prescribed.
The
issue raised by counsel for the first and second respondents is that the
declaration and summons do not allege that the prescription has been interrupted.
As
I understand him, the averments of interruption of prescription can only be
used if they are in the summons, or declaration, or in affidavit form.
This
seems to be the issue before me.
It
is trite that a defence of prescription should be raised by way of a special
plea, even when it appears ex facie 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,
as is the case in casu – HERBSTEIN and VAN WINSEN – The Civil Practice of the
Supreme Court of South Africa (4th Edition) by Van Winsen Gilliers
& Loots...,.; Walsh N.O. v Scholtz 1968 (2) SA 222 (GW); Union & SWA
Insurance Co. Ltd v Hoosein 1982 (2) SA 481 (W) and Rand Staple-Machine Leasing
(Pty) Ltd v ICI (SA) Ltd 1977 (3) SA 199 (W).
The
raising of the defence of prescription is to give the plaintiff an opportunity
of explaining the reason for the delay. The main proceedings in this matter are
the trial proceedings.
The
introduction of a prima facie prescribed claim cannot, therefore, prejudice the
first and second defendants. The plaintiff's reply, being part of the
pleadings, cannot be expected to be in affidavit form. As pleadings have not
closed, the plaintiff has an opportunity to reply in the appropriate form. By
raising the issue in the manner they did, the defendants have, in my view,
misconceived its remedy. The special plea may be dealt with at a later stage of
the proceedings, after the plaintiff has replicated. The defendants jumped the
gun. The plaintiff still has, in any
event, a right to amend her claim.
Accordingly, the issue of prescription is stayed
until the close of pleadings, with costs being costs in the cause.
