Botes v Xhantini NO (Reasons) (2018/27381) [2023] ZAGPJHC 595 (16 May 2023)

Botes v Xhantini NO (Reasons) (2018/27381) [2023] ZAGPJHC 595 (16 May 2023)

The defendant failed to discharge the onus of proving, on a balance of probabilities, that the plaintiff's claim had prescribed. The only witness called by the defendant, Mia, could not provide evidence as to when the plaintiff became aware of the facts giving rise to the debt or the identity of the debtor. The defendant's reliance on pleadings and correspondence did not constitute admissible evidence. The authorities cited by the defendant did not assist in shifting the burden, as no prima facie case was established. Accordingly, the special plea of prescription was dismissed with costs.

Citation
[2023] ZAGPJHC 595
Parties
Plaintiff: Dina Johana Cathrina Botes; Defendant: Nosinothi Selina Xhantini N.O.
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
16 May 2023
Case Number
2018/27381
Procedural Posture
Civil Trial / Special Plea of Prescription
Outcome
The special plea of prescription is dismissed with costs.
Judges
B.C. Wanless
Legal Topics
Prescription Act, Special Plea, Negligence, Burden of Proof
Civil Procedure Delict Prescription Act Special Plea Negligence Burden of Proof

Case Brief

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Parties

Dina Johana Cathrina Botes

Plaintiff

Nosinothi Selina Xhantini N.O.

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription

Legal Issues

  1. 1 Whether the plaintiff's claim against the defendant has prescribed under the Prescription Act.
  2. 2 Whether the defendant discharged the onus to prove prescription on a balance of probabilities.
  3. 3 Whether pleadings alone can constitute evidence sufficient to prove prescription.

Ratio Decidendi

The defendant failed to discharge the onus of proving, on a balance of probabilities, that the plaintiff's claim had prescribed. The only witness called by the defendant, Mia, could not provide evidence as to when the plaintiff became aware of the facts giving rise to the debt or the identity of the debtor. The defendant's reliance on pleadings and correspondence did not constitute admissible evidence. The authorities cited by the defendant did not assist in shifting the burden, as no prima facie case was established. Accordingly, the special plea of prescription was dismissed with costs.

Court Disposition

The special plea of prescription is dismissed with costs.

Orders

  • The defendant's special plea of prescription is dismissed.
  • The defendant is ordered to pay the costs of the special plea.