Gericke v Sack

• Jurisdiction: South Africa
• Court: Appellate Division
• Judge: Rumpff CJ, Jansen JA, Diemont JA, Trengove AJA and Klopper AJA
• Judgment Date: 22 November 1977
• Citation: 1978 (1) SA 821 (A)
• Hearing Date: 09 September 1977

Diemont, J.A.:

On 13 February 1971 a motor boat crashed into a jetty on Loch Vaal and injured the appellant. Three years later on 14 February 1974 a summons was served on the respondent claiming damages for the injuries which the appellant had sustained. The sole question in dispute at the trial was whether or not the claim had become prescribed by lapse of time.

E In the Court a quo the appellant, Mrs. Anna Gericke (born Tomaszewska) and her husband, Paul Xavier Gericke, to whom she was married out of community of property and with exclusion of the marital power, were both parties to the action. They alleged in their particulars of claim that the F respondent, Karel Albert Sack, was the pilot and had been in control of a motor boat which had collided with a jetty which was owned by Gericke (first plaintiff) and on which appellant (second plaintiff) was seated at the time of the mishap. They alleged further that the collision was due to the respondent's sole negligence and Gericke accordingly claimed the sum of R217,13 in respect of damage caused to the jetty, while Mrs. Gericke, G the appellant, claimed the sum of R23 307,80 in respect of medical and hospital expenses and as compensation for shock and the injuries she had suffered.

After particulars had been asked for an supplied the respondent filed a plea on the merits denying liability and a special plea to the following effect:

H "Die verweerder pleit dat die eisers nie geregtig is om hierdie aksie teen verweerder te bring nie aangesien die eisers se eis rees verjaar het omrede die skuldoorsaak ontstaan het op 13 Februarie 1971 en die eisers eers hulle dagvaarding beteken het op die verweerder op 14 Februarie 1974."

In due course a replication was filed which read as follows:

"Die eisers repliseer op die verweerder se spesiale pleit gedateer 8 September 1975 soos volg:

1.

Die eisers erken dat die dagvaarding op 14 Februarie 1974 op die

Diemont JA

verweerder bateken is, maar ontken dat die skuld verjaar het soos beweer en voer aan dat hulle eers op 17 Februarie 1971 kennis verkry het van die identiteit van die verweerder.

2.

A Uit hoofde van die bepalings van art. 11 (d) van die Verjaringswet, 68 van 1969, saamgelees met art. 12 (1) en (3) van die gemelde Wet, sou die betrokke skuld eers op 16 Februarie 1974 verjaar het.

Derhalwe versoek die eisers dat die verweerder se spesiale pleit van die hand gewys word met koste.

B At a pre-trial conference first plaintiff's claim for repair costs for the damage done to the jetty was abandoned and only the claim of the second plaintiff, now appellant, remained in issue. At a subsequent conference the parties agreed that, in the event of the respondent's special plea relating to prescription not being upheld, judgment would be given in favour of appellant in the sum of R4061,40. Accordingly the only issue C that the trial Court had to decide was whether Mrs. Gericke's claim had become prescribed.

At the start of the trial the special plea was amended by consent to read as follows:

"Die verweerder pleit dat die eisers nie geregtig is om hierdie aksie D teen verweerder te bring nie aangesien die eisers se eis reeds verjaar het omrede die skuld opeisbaar geword het op die verweerder op 14 Februarie 1974."

The period of prescription in a case such as this which is based on delict E is three years, and the period begins to run as soon as the debt is due; in terms of sec. 15 (1) of the Prescription Act, 68 of 1969, that period is interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt. It is common cause that the summons in this case was served on the respondent on 14 February 1974, but the F appellant denies that the debt had become prescribed by that date for the reason, it is alleged, that it was only on 17 February 1971 that the identity of the respondent was established and consequently that the debt was not rendered unenforceable by lapse of time before 16 February 1974.

Appellant's averment was based on sec. 12 of the Act which reads as follows:

"(1)

Subject to the provisions of sub-secs. (2) and (3), prescription shall commence to run as soon as the debt is due.

(2)

If the debtor wilfully prevents the creditor from coming to know of the existence of the debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt.

(3)

A debt which does not arise from contract shall not be deemed to be H due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care."

Evidence was led by both parties and at the conclusion of the trial it was held by the Court that the appellant had knowledge of the facts from which the debt arose - that is of the delict - on the day that she was injured, 13 February 1971. This finding was not challenged on appeal and was undoubtedly correct since the appellant was not only involved in the collision but witnessed everything that happened and there was no

Diemont JA

suggestion that she had been rendered unconscious or suffered from any form of amnesia.

A The critical issue was the identity of respondent - when did appellant acquire knowledge or when was she deemed to have acquired knowledge of the identity of the person who caused her injuries. On this issue there was a sharp conflict of evidence and both in the trial Court and in this Court counsel advanced arguments for and against the proposition that the burden of proof lay on the party who asserted that prescription had run and that B the claim was extinguished. The Judge a quo came to the conclusion

"that the onus to prove the special plea was on the defendant, with no exceptions."

Mr. Cloete, for the respondent, submitted that, in coming to this conclusion, the trial Court had erred. He sought, as it were, to apportion C the burden of proof by contending that the onus was on the respondent to prove the defence raised on his special plea but, in so far as the appellant was concerned, the onus was on her to prove the facts on which the exception contained in sec. 12 (3) of the Act was based. In support of his argument he relied partly on the form in which the pleadings were cast and partly on two cases in which a similar question had arisen where prescription had been pleaded in an action for defamation.

D In the earlier of these two cases, Holmes v Salzmann, 1913 OPD 111, MAASDORP, C.J., dismissed, with more candour than courtesy, a ruling which had been laid down

"so long ago as 1856 in the case of Reid v Van der Walt, 2 Searle 285, in a judgment which was apparently not written and well-considered, but one given on the spur of the moment immediately after argument."

E That was a ruling in which Bell and Cloete, JJ., held that:

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