Grobbelaar v Oosthuizen and Another (544/2000-) [2005] ZANCHC 68 (2 December 2005)

Grobbelaar v Oosthuizen and Another (544/2000-) [2005] ZANCHC 68 (2 December 2005)

The court found that there is merit in the argument that the cession of insurance policy rights does not constitute a 'thing' under section 1 of the Prescription Act, but rather a claim subject to the three-year prescription period under section 10. The court held that another court may reasonably reach a different conclusion regarding the nature of the cession and the applicable prescription period. Accordingly, leave to appeal was granted on the issue of prescription and the costs order. The court was not persuaded that there is a reasonable prospect another court would reach a different conclusion regarding the counterclaim, and leave to appeal on that aspect was refused.

Citation
[2005] ZANCHC 68
Parties
Plaintiff: Jacobus Dawid Grobbelaar; Defendant: Cecelia Johanna Oosthuizen; Defendant: Mothibi Crushers & Transport; Defendant: Phillip Bauke Van Der Merwe; Defendant: Die Meester van die Hooggeregshof, Kimberley; Defendant: Sanlam Beperk
Court
Northern Cape High Court, Kimberley
Jurisdiction
South Africa
Judgment Date
2 December 2005
Case Number
544/2000
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Following Judgment on 29 March 2005.
Outcome
Leave to appeal granted in part; refused in part.
Judges
C.C Williams
Legal Topics
Prescription Act, Cession of Rights, Costs Order, Contract Interpretation
Civil Procedure Commercial and Corporate Prescription Act Cession of Rights Costs Order Contract Interpretation

Case Brief

Summary, issues, holding and outcome

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Parties

Jacobus Dawid Grobbelaar

Plaintiff

Cecelia Johanna Oosthuizen

Defendant

Mothibi Crushers & Transport

Defendant

Phillip Bauke Van Der Merwe

Defendant

Die Meester van die Hooggeregshof, Kimberley

Defendant

Sanlam Beperk

Defendant

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Following Judgment on 29 March 2005.

Legal Issues

  1. 1 Whether the Prescription Act 68 of 1969 applies to the cession of insurance policy rights as 'things' under section 1 or as claims under section 10.
  2. 2 Whether the agreement constituted an outright cession or a cession in securitatem debiti.
  3. 3 Whether the counterclaim by first and second defendants had prescribed.

Ratio Decidendi

The court found that there is merit in the argument that the cession of insurance policy rights does not constitute a 'thing' under section 1 of the Prescription Act, but rather a claim subject to the three-year prescription period under section 10. The court held that another court may reasonably reach a different conclusion regarding the nature of the cession and the applicable prescription period. Accordingly, leave to appeal was granted on the issue of prescription and the costs order. The court was not persuaded that there is a reasonable prospect another court would reach a different conclusion regarding the counterclaim, and leave to appeal on that aspect was refused.

Court Disposition

Leave to appeal granted in part; refused in part.

Orders

  • Leave is granted to appeal to the Full Bench of this Division against the finding in respect of the plaintiff's first claim against the first defendant as well as the costs order.
  • Costs of this application will be costs in the appeal.