Khatha v Pillay and Others (35735/2018) [2023] ZAGPJHC 926; 2024 (1) SA 159 (GJ) (20 August 2023)

Khatha v Pillay and Others (35735/2018) [2023] ZAGPJHC 926; 2024 (1) SA 159 (GJ) (20 August 2023)

The court held that the death of the owner against whom acquisitive prescription is running constitutes 'superior force' under section 3(1)(a) of the Prescription Act, as a deceased estate without an appointed executor cannot interrupt prescription. The impediment only ceases upon the appointment of executors, and the period of prescription is delayed accordingly. Even if section 3(1)(a) does not apply, the common law principle contra non valentem agere nulla currit praescriptio suspends the running of acquisitive prescription until an executor is appointed. Therefore, the period of prescription had not been completed by the date pleaded by the plaintiff, and the defendants' special plea...

Citation
[2023] ZAGPJHC 926
Parties
Plaintiff: Hassody Khatha; Defendant: Primathie Pillay N.O.; Defendant: Kanderuby Ramoothy N.O.; Defendant: Master of the High Court, Johannesburg
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
20 August 2023
Case Number
35735/2018
Procedural Posture
Civil Trial / Special Plea on Acquisitive Prescription Separated for Determination Prior to Other Issues
Outcome
The defendants' special plea to the plaintiff's main claim of acquisitive prescription is upheld. Claim A is dismissed with costs.
Judges
RJ Moultrie
Legal Topics
Acquisitive Prescription, Prescription Act, Delay in Completion of Prescription, Superior Force, Statutory Interpretation
Land and Property Civil Procedure Acquisitive Prescription Prescription Act Delay in Completion of Prescription Superior Force Statutory Interpretation

Case Brief

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Parties

Hassody Khatha

Plaintiff

Primathie Pillay N.O.

Defendant

Kanderuby Ramoothy N.O.

Defendant

Master of the High Court, Johannesburg

Defendant

Procedural Posture

Civil Trial / Special Plea on Acquisitive Prescription Separated for Determination Prior to Other Issues

Legal Issues

  1. 1 Whether the death of the owner against whom acquisitive prescription is running constitutes 'superior force' under section 3(1)(a) of the Prescription Act, thereby delaying completion of prescription.
  2. 2 Whether, in the absence of an appointed executor, the running of acquisitive prescription is suspended until such appointment.
  3. 3 Whether the common law principle contra non valentem agere nulla currit praescriptio applies to suspend acquisitive prescription in these circumstances.

Ratio Decidendi

The court held that the death of the owner against whom acquisitive prescription is running constitutes 'superior force' under section 3(1)(a) of the Prescription Act, as a deceased estate without an appointed executor cannot interrupt prescription. The impediment only ceases upon the appointment of executors, and the period of prescription is delayed accordingly. Even if section 3(1)(a) does not apply, the common law principle contra non valentem agere nulla currit praescriptio suspends the running of acquisitive prescription until an executor is appointed. Therefore, the period of prescription had not been completed by the date pleaded by the plaintiff, and the defendants' special plea...

Court Disposition

The defendants' special plea to the plaintiff's main claim of acquisitive prescription is upheld. Claim A is dismissed with costs.

Orders

  • The first and second defendants’ special plea to the plaintiff’s main claim of acquisitive prescription is separated from, and is to be determined prior to, all other issues in the action.
  • The remaining issues in the action shall be stayed until the first and second defendants’ aforesaid special plea has been disposed of.