Bojosi v Bojosi (65646/2011) [2014] ZAGPPHC 593 (14 August 2014)

Bojosi v Bojosi (65646/2011) [2014] ZAGPPHC 593 (14 August 2014)

The court found that the special pleas of non-joinder and improper citation were without merit. The plaintiff is claiming a sum of money, not the transfer of immovable property, so the defendant's wife need not be joined. The defendant's representative capacity ended when the plaintiff attained majority. Regarding prescription, the claim would ordinarily have prescribed three years after the plaintiff turned 21, but the plaintiff alleges that the defendant made undertakings to transfer the properties and monies, which could have interrupted prescription. As these allegations are disputed and no dates are provided, the issue of prescription cannot be determined without oral evidence. The...

Citation
[2014] ZAGPPHC 593
Parties
Plaintiff: Mary Dieketseng Bojosi; Defendant: Tsietsi Richard Bojosi
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
14 August 2014
Case Number
65646/2011
Procedural Posture
Civil Trial / Special Plea Adjudication
Outcome
The defendant's first and second special pleas are dismissed with costs. The special plea of prescription is referred to oral evidence to determine whether prescription was interrupted. Costs of the special plea are to be in the cause.
Judges
TM Makgoka
Legal Topics
Prescription Act, Non Joinder, Representative Capacity, Children S Property Rights
Civil Procedure Family and Children Prescription Act Non Joinder Representative Capacity Children S Property Rights

Case Brief

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Parties

Mary Dieketseng Bojosi

Plaintiff

Tsietsi Richard Bojosi

Defendant

Procedural Posture

Civil Trial / Special Plea Adjudication

Legal Issues

  1. 1 Whether the defendant's wife should have been joined as a party to the proceedings.
  2. 2 Whether the defendant was improperly cited in his representative capacity.
  3. 3 Whether the plaintiff's claim has prescribed under the Prescription Act.

Ratio Decidendi

The court found that the special pleas of non-joinder and improper citation were without merit. The plaintiff is claiming a sum of money, not the transfer of immovable property, so the defendant's wife need not be joined. The defendant's representative capacity ended when the plaintiff attained majority. Regarding prescription, the claim would ordinarily have prescribed three years after the plaintiff turned 21, but the plaintiff alleges that the defendant made undertakings to transfer the properties and monies, which could have interrupted prescription. As these allegations are disputed and no dates are provided, the issue of prescription cannot be determined without oral evidence. The...

Court Disposition

The defendant's first and second special pleas are dismissed with costs. The special plea of prescription is referred to oral evidence to determine whether prescription was interrupted. Costs of the special plea are to be in the cause.

Orders

  • The defendant’s first and second special pleas are dismissed with costs.
  • The defendant’s special plea of prescription is referred to oral evidence, to determine, in particular, whether or not prescription had been interrupted.