Botha v Williams and Others (22523/2010) [2012] ZAGPJHC 52 (2 March 2012)

Botha v Williams and Others (22523/2010) [2012] ZAGPJHC 52 (2 March 2012)

Prescription did not commence to run at the date of the accident because the deceased estate, as creditor, was unrepresented and could not acquire actual or deemed knowledge of the debtor or the facts giving rise to the debt. Only upon appointment of the executor on 17 July 2007 did the estate become represented and capable of acquiring such knowledge. Section 13 of the Prescription Act deals only with the completion, not the commencement, of prescription and is irrelevant to the determination of when prescription began to run in this case. As the summons was served within three years of the executor's appointment, the claim has not prescribed.

Citation
[2012] ZAGPJHC 52
Parties
Plaintiff: Nico Andrew Theo Botha; Defendant: Mark Williams; Defendant: Mark's Deliveries; Defendant: Paulo José Macaringe
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
2 March 2012
Case Number
22523/2010
Procedural Posture
Civil Trial / Special Plea of Prescription Determined Prior to Merits Under Rule 33(4)
Outcome
The special plea of prescription is dismissed with costs.
Judges
André Gautschi
Legal Topics
Prescription Act, Special Plea, Commencement of Prescription, Executor Appointment, Deceased Estate Claims
Civil Procedure Prescription Act Special Plea Commencement of Prescription Executor Appointment Deceased Estate Claims

Case Brief

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Parties

Nico Andrew Theo Botha

Plaintiff

Mark Williams

Defendant

Mark's Deliveries

Defendant

Paulo José Macaringe

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription Determined Prior to Merits Under Rule 33(4)

Legal Issues

  1. 1 Whether the plaintiff's claim for damages to the deceased's motorcycle has prescribed under the Prescription Act.
  2. 2 When does prescription commence to run in respect of a claim by a deceased estate where the executor is appointed after the cause of action arises.
  3. 3 Whether section 13 of the Prescription Act delays the running or completion of prescription in these circumstances.

Ratio Decidendi

Prescription did not commence to run at the date of the accident because the deceased estate, as creditor, was unrepresented and could not acquire actual or deemed knowledge of the debtor or the facts giving rise to the debt. Only upon appointment of the executor on 17 July 2007 did the estate become represented and capable of acquiring such knowledge. Section 13 of the Prescription Act deals only with the completion, not the commencement, of prescription and is irrelevant to the determination of when prescription began to run in this case. As the summons was served within three years of the executor's appointment, the claim has not prescribed.

Court Disposition

The special plea of prescription is dismissed with costs.

Orders

  • The special plea of prescription is dismissed.
  • The defendants are ordered to pay the costs of the special plea.