Habib and Another v Ethekwini Municipality (12975/2017) [2019] ZAKZDHC 3; 2020 (1) SA 580 (KZD) (20 March 2019)

Habib and Another v Ethekwini Municipality (12975/2017) [2019] ZAKZDHC 3; 2020 (1) SA 580 (KZD) (20 March 2019)

The court held that while prescription is customarily raised by special plea, there is no authority that an exception invoking prescription is an irregular step under uniform rule 30. The exception should be considered on its merits, not set aside as irregular. The particulars of claim do not disclose whether the claim has become prescribed, but this does not mean they lack averments necessary to sustain an action. The plaintiff is not required to plead that the claim has not prescribed. Therefore, the application under rule 30 fails, and the exception is dismissed as the particulars of claim are not excipiable on the ground of prescription.

Citation
[2019] ZAKZDHC 3
Parties
Plaintiff: Ismail Abdul Habib; Plaintiff: Ismail Abdul Satar Tayob N.O; Defendant: Ethekwini Municipality
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
20 March 2019
Case Number
12975/2017
Procedural Posture
Civil Trial / Judgment on Exception and Rule 30 Application
Outcome
The plaintiffs' application under uniform rule 30 is dismissed with costs. The defendant's exception is dismissed with costs.
Judges
Ploos van Amstel
Legal Topics
Exception Procedure, Prescription, Uniform Rule 30, Cause of Action, Special Plea
Civil Procedure Exception Procedure Prescription Uniform Rule 30 Cause of Action Special Plea

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 16 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Ismail Abdul Habib

Plaintiff

Ismail Abdul Satar Tayob N.O

Plaintiff

Ethekwini Municipality

Defendant

Procedural Posture

Civil Trial / Judgment on Exception and Rule 30 Application

Legal Issues

  1. 1 Whether an exception based on prescription constitutes an irregular step under uniform rule 30.
  2. 2 Whether the particulars of claim disclose a cause of action despite the absence of an averment regarding prescription.
  3. 3 Whether prescription must be raised by special plea rather than exception.

Ratio Decidendi

The court held that while prescription is customarily raised by special plea, there is no authority that an exception invoking prescription is an irregular step under uniform rule 30. The exception should be considered on its merits, not set aside as irregular. The particulars of claim do not disclose whether the claim has become prescribed, but this does not mean they lack averments necessary to sustain an action. The plaintiff is not required to plead that the claim has not prescribed. Therefore, the application under rule 30 fails, and the exception is dismissed as the particulars of claim are not excipiable on the ground of prescription.

Court Disposition

The plaintiffs' application under uniform rule 30 is dismissed with costs. The defendant's exception is dismissed with costs.

Orders

  • The application by the plaintiffs in terms of uniform rule 30 is dismissed with costs.
  • The exception by the defendant is dismissed with costs.