Habib and Another v Ethekwini Municipality

• Jurisdiction: South Africa
• Judge: Ploos Van Amstel J
• Judgment Date: 20 March 2019
• Citation: 2020 (1) SA 580 (KZD)
• Docket Number: 12975/2017
• Hearing Date: 20 March 2019
• Counsel: M Pillemer SC for the plaintiffs. JP Broster for the defendant.
• Court: KwaZulu-Natal Local Division, Durban

Ploos van Amstel J:

[1] The plaintiffs in this matter are the trustees of the Ismail Habib Family Trust. They have instituted an action against the eThekwini Municipality (the municipality) in which they claim payment of the sum of R3 781 107, which they say they paid to it in respect of rates and penalties owed by a previous owner of an immovable property which they had purchased. The basis of the claim is that they were not liable to the municipality for the amount paid, but made the payment after threats by it regarding the discontinuation of services and legal action.

[2] The plaintiffs pleaded that they only became aware that they had not been liable to make the payment to the municipality after a judgment of the Constitutional Court on 29 August 2017, which was to the effect that it is not permissible for a local authority to compel the new owner of immovable property to pay the rates owed by a previous owner.

[3] The municipality's response was an exception to the particulars of claim on the basis that the facts pleaded do not disclose a cause of action. In essence the objection is that the averments do not establish that the plaintiffs' claim has not become prescribed. The point is made that it is not stated in the particulars of claim when the payment was made, and that the date of the Constitutional Court judgment is not relevant to the determination of when prescription commenced to run.

[4] The plaintiffs delivered a notice in terms of Uniform Rule 30(2)(b), claiming that the notice of exception was an irregular proceeding and affording the municipality an opportunity to withdraw it. The basis of the contention was that prescription cannot be raised by way of an exception and has to be raised in a special plea. The municipality did not respond to the notice and the plaintiffs delivered an application in terms of Uniform Rule 30(1) for an order setting aside the exception as an irregular step.

[5] Counsel for the plaintiffs submitted that if I conclude that the exception should be dismissed on the merits then there is no need for me to decide the application in terms of rule 30. Counsel for the municipality submitted that the application was inappropriate and unnecessary, that it resulted in costs being incurred and that, regardless of my finding

Ploos van Amstel J

on the merits of the exception, I should order the plaintiffs to pay the costs of the application. In those circumstances it seems to me that I have to deal with the application.

Is the exception an irregular step?

[6] Counsel for the plaintiffs referred me to LTC Harms Amler's Precedents of Pleadings 9 ed (2018) at 305, where the learned author says the proper way of raising prescription in action proceedings is by way of a plea or special plea, and not by way of exception. He says the reason is that the plaintiff may have a valid answer to the plea of prescription (such as delay or interruption), which may be raised in replication. [1] He does not deal with the question whether such an exception will be an irregular step, and it appears to be no more than a caution that an exception based on prescription is bound to fail.

[7] In D Harms Civil Procedure in the Superior Courts SI-64 (2019) at B30.3 the learned author says the term 'irregular' is not defined in Uniform Rule 30, but 'it can be accepted that the rule applies only to irregularities of form and not to matters of substance'. He says there is, however, conflicting authority in this regard.

[8] In Sanan v Eskom Holdings Ltd [2] the plaintiff sued his former employer for damages on the basis that during his employment he was exposed to asbestos, as a result of which he contracted cancer. The defendant delivered an exception on the basis that the particulars of claim disclosed no cause of action, in view of the statutory embargo to such claims contained in s 35 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993. The defendant contended that s 35 was a complete bar and that the particulars of claim thus disclosed no cause of action. The learned judge upheld the exception and referred to Mankayi v Anglogold Ashanti Ltd, [3] in which the Supreme Court of Appeal dismissed an appeal against a judgment which upheld a similar exception. He rejected a contention that the exception should be dismissed on the ground that the defendant should have raised the statutory bar by way of a special plea, and not by exception. After a discussion of Voet Ad Pandectas 46.1 and Herbstein & Van Winsen The Civil Practice of the Supreme Court of South Africa 5 ed at 599 and 600 the learned judge concluded that the nature of a defence raised by special plea or exception is more important...