C Z Mbanjwa Incorporated v Albany Auto Trimmers (CA 127/2008) [2009] ZAECGHC 51 (13 August 2009)

C Z Mbanjwa Incorporated v Albany Auto Trimmers (CA 127/2008) [2009] ZAECGHC 51 (13 August 2009)

The court found that the respondent, through its attorneys, acknowledged the existence of the debt and its liability to the appellant in correspondence dated 23 May and 14 June 2001. The letter of 23 May 2001 confirmed that the respondent owed an outstanding amount and that part payment was being made. The subsequent letter of 14 June 2001, accompanied by a cheque, constituted an express acknowledgement of liability and a tender of part payment. This conduct, viewed objectively and in context, interrupted the running of prescription under section 14 of the Prescription Act. The prescriptive period began to run afresh from 14 June 2001, and the summons was issued before the new period...

Citation
[2009] ZAECGHC 51
Parties
Appellant: C Z Mbanjwa Incorporated; Respondent: Albany Auto Trimmers
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
13 August 2009
Case Number
CA 127/2008
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court; Challenge to Special Plea of Prescription
Outcome
Appeal upheld. Magistrate's order set aside. Special plea of prescription dismissed with costs.
Judges
F Kroon, J W Eksteen
Legal Topics
Prescription Act, Interruption of Prescription, Acknowledgement of Liability
Civil Procedure Prescription Act Interruption of Prescription Acknowledgement of Liability

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 7 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

C Z Mbanjwa Incorporated

Appellant

Albany Auto Trimmers

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court; Challenge to Special Plea of Prescription

Legal Issues

  1. 1 Whether the running of prescription was interrupted by an express or tacit acknowledgement of liability by the respondent in June 2001.
  2. 2 Whether the appellant's claim for professional fees was prescribed at the time summons was issued.

Ratio Decidendi

The court found that the respondent, through its attorneys, acknowledged the existence of the debt and its liability to the appellant in correspondence dated 23 May and 14 June 2001. The letter of 23 May 2001 confirmed that the respondent owed an outstanding amount and that part payment was being made. The subsequent letter of 14 June 2001, accompanied by a cheque, constituted an express acknowledgement of liability and a tender of part payment. This conduct, viewed objectively and in context, interrupted the running of prescription under section 14 of the Prescription Act. The prescriptive period began to run afresh from 14 June 2001, and the summons was issued before the new period...

Court Disposition

Appeal upheld. Magistrate's order set aside. Special plea of prescription dismissed with costs.

Orders

  • The special plea of prescription is dismissed with costs.
  • No order as to costs of the appeal, as indicated by appellant's counsel.