Habib and Another v Ethekwini Municipality

• Jurisdiction: South Africa

Habib and Another v Ethekwini Municipality
2020 (1) SA 580 (KZD)

2020 (1) SA p580

Citation	2020 (1) SA 580 (KZD)
Case No	12975/2017
Court	KwaZulu-Natal Local Division, Durban
Judge	Ploos Van Amstel J
Heard	March 20, 2019
Judgment	March 20, 2019
Counsel	M Pillemer SC for the plaintiffs.; JP Broster for the defendant.

Flynote : Sleutelwoorde

Practice — Pleadings — Exception — Prescription raised in exception rather than in special plea — Whether exception is an irregular proceeding.

Headnote : Kopnota

Plaintiff had bought a property from a third party in defendant municipality's area. The municipality demanded that plaintiff pay the third party's rates, and plaintiff did.

The Constitutional Court later declared that a municipality could not compel someone in plaintiff's position to pay the prior owner's rates, and plaintiff instituted an action for return of what it paid.

The municipality excepted to plaintiff's particulars of claim, as disclosing no cause of action, in that they were lacking averments to show the claim was still extant, that it had not prescribed.

Plaintiff then delivered a notice to the municipality, asserting that the municipality's exception was an irregular proceeding, in that prescription could not be raised on exception. Prescription, it asserted, must be raised in a special plea. The municipality did not respond.

Plaintiff now applied to set aside the exception.

The question before the court was, if prescription was raised by exception, whether the exception was an irregular step (see [6]).

The court held that it was not, and that the approach a court should adopt, if presented with an exception raising prescription, was to examine if the particulars of claim were indeed excipiable — whether they contained insufficient averments to sustain a cause of action (see [16] and [19]).

Here, the particulars of claim did contain sufficient averments to sustain one (see [24]).

The court dismissed the application to set aside the exception as an irregular step, and it also dismissed the exception (see [25]).

Cases cited

Southern Africa

Cassimjee v Cassimjee 1947 (3) SA 701 (N): referred to

First National Bank of Southern Africa Ltd v Perry NO and Others 2001 (3) SA 960 (SCA) ([2001] 3 All SA 331; 2001 CLR 196; [2001] ZASCA 37): dictum in para [6] applied

Holmes v Schoch 1910 TPD 700: considered

Living Hands (Pty) Ltd and Another v Ditz and Others 2013 (2) SA 368 (GSJ): referred to

Mankayi v Anglogold Ashanti Ltd 2010 (5) SA 137 (SCA) ([2010] 3 All SA 606): referred to

Murray & Roberts Construction (Cape) (Pty) Ltd v Upington Municipality 1984 (1) SA 571 (A): considered

Rand Staple-Machine Leasing (Pty) Ltd v ICI (SA) Ltd 1977 (3) SA 199 (W): considered

Reuben v Meyers 1957 (4) SA 57 (SR): considered

Sanan v Eskom Holdings Ltd 2010 (6) SA 638 (GSJ): considered

2020 (1) SA p581

Shield Insurance Co Ltd v Zervoudakis 1967 (4) SA 735 (E): referred to

Union & SWA Insurance Co Ltd v Hoosein 1982 (2) SA 481 (W): considered

Walsh NO v Scholtz 1968 (2) SA 222 (GW): followed.

Case Information

M Pillemer SC for the plaintiffs.

JP Broster for the defendant.

An application to set aside an exception.

Order

(a)

The application by the plaintiffs in terms of Uniform Rule 30 is dismissed with costs.

(b)

The exception by the defendant is dismissed with costs.

Judgment

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

2020 (1) SA p582

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...