Court : South Africa Supreme Court of Appeal
..... a minor at the time of the expiry of the prescriptive period, completion of prescription was delayed in terms of ss 13(1)(a) and (i) of the act, which read: if (a) the creditor is a minor ; and (i) the relevant period of prescription would, but for the provisions of this subsection, be completed before or on, or within one year after, the day on which the relevant impediment referred to in paragraph (a) has ceased to exist, the period of prescription shall not be completed before a year has elapsed after ..... eighteenth birthday between 1 july 2005 and 30 june 2008 would be left with only one year after 1 july 2007 in which to pursue their claim if they were to avoid prescription, instead of the longer period of up to four years that they had before that date. ..... was aware that changes to the age of consent might affect questions of prescription (see part 1, p 25) it did not deal specifically with this issue ..... to treat them as less than adult for a purpose as important as the law governing prescription infringes their dignity by affording them an advantage, on the grounds of their supposed immaturity and irresponsibility, that ..... inconsistent with the views of professor j c de wet, who prepared a memorandum on prescription for the south african law commission and drafted the act, which was passed in the terms ..... mean that the new meaning of s 13(1)(a) automatically operates in relation to all unexpired periods of prescription that were already running when the change in meaning occurred. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... an opposed application for an amendment to a summons the fundamental question a court should consider is whether or not the service of the summons in the previous action on the respondent interrupted the running of prescription of the applicants rights against the respondent.8and in considering whether or not prescription was interrupted by service of the previous summons the right sought to be enforced by means of the amendment must be the same or substantially the same right as originally sought to be enforced, (f)or the substance ..... for costs or by some other suitable order such as a postponement.5an amendment would cause prejudice if, for example, its effect would be to deprive the other party to the action of the opportunity to raise an otherwise good plea of prescription.6thus, a late amendment which has the effect of introducing a new cause of action or new parties would inevitably cause prejudice to the other party in the action, as it would defeat an otherwise good defence ..... this court held that the summons did not constitute a process whereby the creditor claimed payment of the debt and that the running of prescription in respect of the debt was accordingly not interrupted by service of the summons on the defendant.11 [12] in the present matter the particulars of claim disclose that the right sought to be enforced against the appellant arose from an agreement of .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... is whether a credit providers claim against a consumer prescribes in circumstances where, although summons has been issued and served on the consumer prior to the elapse of three years from the debt becoming due in terms of the prescription act 68 of 1969, the credit provider has complied with the provisions of s 129 of the nca only after the proceedings have been adjourned by a court in terms of s 130(4) to enable the credit provider to send ..... an excipiable summons, or one that is amended so as to introduce a new cause of action (where substantially the same debt is being claimed) has the effect of interrupting prescription (see cgu insurance ltd v rumdel construction (pty) ltd 2004 (2) sa 622 (sca) para 5 and the cases cited in it). ..... subsection (2) states: unless the debtor acknowledges liability, the interruption of prescription in terms of subsection (1) shall lapse, and the running of prescription shall not be deemed to have been interrupted, if the creditor does not successfully prosecute his claim under the process in question to final judgment . . ..... is no express provision allowing for condonation, said the high court, failure to comply with s 129 before the end of the three-year prescription period meant that the banks claim against mr ramurunzi had prescribed. ..... on the majority judgment of corbett ja in evins v shield insurance co ltd 1980 (2) sa 814 (a) which dealt with the prescription of a dependants action under the compulsory motor vehicle insurance act 56 of 1972. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... (2) unless the debtor acknowledges liability, the interruption of prescription in terms of subsection (1) shall lapse, and the running of prescription shall not be deemed to have been interrupted, if the creditor does not successfully prosecute his claim under the process in question to final judgment or if he does so prosecute his claim but abandons the judgment or the judgment is ..... if it was not, it did not interrupt the running of prescription and the appeal must succeed. ..... and that the law must be consequent by declaring that the running of prescription could not have been interrupted. ..... if it is, the appellants special plea of prescription is without merit and was correctly dismissed by the court a quo. ..... the defendant, inter alia, raised a special plea to the effect that the plaintiffs claim has prescribed in terms of the provisions of s 12 of the prescription act 68 of 1969 (the act). ..... it reads: (1) the running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt. ..... [2] the question raised in this appeal is whether the service of the summons on the defendant on 14 december 2006 was good and served to interrupt the running of prescription against the plaintiff. ..... [27] in considering this argument, it must be remembered that even where peremptory formalities are prescribed by statute, not every deviation from the literal prescription results in nullity. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... of damages arising from the respondents alleged breach of the contract - which breach is alleged in the particulars of claim to have taken place on or about 13 may 2006 - did not interrupt the running of prescription in terms of s 15(1) of the prescription act and that a period of more than three years had lapsed since the alleged breach and the delivery of the notice of intention to amend the citation of the plaintiff or of the actual substitution of the ..... (mthiyane ap, ponnan, tshiqi, willis jja concurring): [1] this is an appeal against a judgment of louw j, sitting in the north gauteng high court, in which he upheld a special plea of prescription raised by the respondent, aviation @ work (pty) ltd, against a claim for payment of damages brought against it by the appellant, solenta aviation (pty) ltd. ..... a particular debt, and that defendant may, by virtue of extrinsic knowledge, appreciate that plaintiff has wrongly identified the debt in his summons, cannot convert the summons into one which interrupts prescription in respect of any debt other than the one identified in the process. ..... true identity of the plaintiff was recognisable from the particulars of claim and the annexed contract and that service of the summons on the respondent had interrupted the running of prescription in terms of s 15(1) of the prescription act.1 [6] the amendment was effected on 7 april 2010. ..... only concerned with the issues of res iudicataand prescription while the remaining issues stood over for later .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... [20] on the appellants own version, his cause of action against santam had fully accrued in terms of section 12(3) of the prescription act by the latter date, less than four weeks after the winding-up.9 nothing at any time thereafter precluded him from instituting action and obtaining judgment ..... should find as we have that his claim became due before the issue of summons then the running of prescription was continuously interrupted by santams express or tacit acknowledgement of liability until it repudiated abakors claim. ..... it pleaded that the appellants claim had been extinguished by prescription under section 11 of the prescription act 68 of 1969 because his summons was issued more than three years after the debt ..... allegation was that if the debt became due before the issue of summons on 13 january 2001, the running of prescription was interrupted by santams express or tacit admission of liability to indemnify abakor. ..... ja (leach, theron, willis jja and meyer aja concurring): [1] this is an appeal against the judgment of the north gauteng high court, pretoria (webster j) which upheld the respondents special plea of prescription and dismissed the appellants claim with costs. ..... (2) if the running of prescription is interrupted as contemplated in subsection (1), prescription shall commence to run afresh from the date on which the interruption takes place [23] these provisions envisage an acknowledgement of liability for the debt made by the debtor to the creditor or his agent.10 the .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... concurring): [1] the narrow issue in this appeal is whether service of a notice of joinder, in terms of rule 10(3) of the uniform rules of court, on the appellant (taylor) interrupted prescription as envisaged by s 15(1) of the prescription act 68 of 1969 (the act).the court below (kwazulu natal high court, per madondo j) found that it did and that the claim of the first respondent (bell estates) against the appellant ..... the plaintiffs in respect of the indemnity were taken expeditiously - within 18 months of the storm damage.5 [14] in naidoo, meskin j accepted howie js conclusion in allianz that for the purposes of interrupting prescription it is sufficient if the process to be served is one whereby the proceedings begun thereunder are instituted as a step in the enforcement of a claim for payment of the debt.6the two plaintiffs in ..... the connection between the action in which the declarators were sought and the second claim for payment of the debt was sufficiently close to interrupt prescription, was that the judgment in the action for the declarators would finally dispose of some elements of the claim, the remaining elements to be ..... would thus be a fruitless exercise as the claim against him had prescribed.2 [5] section 15(1) and (6) of the act provide: judicial interruption of prescription (1) the running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... . in gericke v sack 1978 (1) sa 821 (a) 827d-e the court stated: it will at times be difficult for a debtor who pleads prescription to establish the date on which the creditor first learned his identity or, for that matter, when he learned the date on which the delict ..... . a creditor cannot simply sit back and by supine inaction arbitrarily and at will postpone the commencement of prescription.4 what is required is merely the knowledge of the minimum facts that are necessary to institute action and not all the evidence that would ensure the ability of the creditor to prove its ..... in his plea the appellant denied knowledge of those facts and also filed a special plea of prescription contending that between 1997 (at the time the claim was settled with the raf), 1998 (at the time the final account was rendered to the respondents mother), by at least april 2002 (when ..... has repeatedly stated that a defendant bears the full evidentiary burden to prove a plea of prescription, including the date on which a plaintiff obtained actual or constructive knowledge of the ..... . it is the negligent, and not an innocent inaction that s 12(3) of the prescription act seeks to prevent and courts must consider what is reasonable with reference to the particular circumstances in which the plaintiff found ..... in her particulars of claim she anticipated a possible plea of prescription by stating that she only became aware of the terms of the settlement agreement when she received the e-mail from ms stroud on .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... the issue in this appeal concerns whether or not this provision has the effect of retrospectively validating an invalid summons issued by a close corporation after deregistration so as to interrupt the running of prescription.a magistrate held that the provision had that effect, but the high court came to the contrary conclusion. ..... deregistration.3applying this reasoning to the instant case, the high court held that the section could not be interpreted in a mannerthat interfered with the existing rights of third parties, including the right by a defendant to raise prescription as a defence to a claim for payment of a debt. ..... if the summons did not interrupt prescription, the debt would have prescribed at the end of september 2009. ..... proceedings were instituted against it within the three year period allowed for prescription. ..... [5] the magistrate dismissed the special plea, holding that the deeming provision in s 26(7) had the effect of reviving the appellants claim against the respondent retrospectively, and the summons had thus interrupted prescription. ..... .in its special plea,the respondenttherefore pleaded that since the debt was due in september 2006 and that the issue of summons in march 2008 had had no legal effect, the summons did not interrupt prescription. .....
Tag this Judgment!Court : South Africa Supreme Court of Appeal
..... in respect of a non-existent debt but in the bona fide but mistaken belief that the payment is due.105a claim for repayment can be defeated if the claimant was inexcusably slack in making the payment106and a defence of prescription may also be available. ..... had a proper claim been formulated and supported by evidence a proper reply could have been formulated including very possibly a defence of prescription. .....
Tag this Judgment!