Latib v Bonitas Medical Fund (A314/2013, 6045/2008) [2015] ZAWCHC 7 (4 February 2015)

Latib v Bonitas Medical Fund (A314/2013, 6045/2008) [2015] ZAWCHC 7 (4 February 2015)

The court held that the novated agreement created a conditional debt, with payment only becoming due upon finalisation of the Diamond litigation and the plaintiff's assistance in that litigation. The relief sought was declaratory, not for immediate payment. Therefore, prescription had not started to run when summons was issued or when the particulars of claim were amended. The defendant's special plea of prescription was dismissed, and the appeal succeeded.

Citation
[2015] ZAWCHC 7
Parties
Appellant: Shabeer Latib; Respondent: Bonitas Medical Fund
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
4 February 2015
Case Number
A314/2013, 6045/2008
Procedural Posture
Civil Appeal / Appeal From Dismissal of Claim on Special Plea of Prescription
Outcome
Appeal upheld; order of court a quo set aside; special plea of prescription dismissed.
Judges
Allie, Steyn, Rogers
Legal Topics
Prescription Act, Novation, Special Plea, Declaratory Relief, Contractual Conditions
Civil Procedure Commercial and Corporate Prescription Act Novation Special Plea Declaratory Relief Contractual Conditions

Case Brief

Summary, issues, holding and outcome

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Parties

Shabeer Latib

Appellant

Bonitas Medical Fund

Respondent

Procedural Posture

Civil Appeal / Appeal From Dismissal of Claim on Special Plea of Prescription

Legal Issues

  1. 1 Whether the plaintiff's claim under the novated agreement had prescribed by the time summons was issued.
  2. 2 Whether the novated agreement created a debt that was due and payable prior to the finalisation of the Diamond litigation.
  3. 3 Whether the relief sought was for specific performance or a declaratory order regarding the existence and terms of the novated agreement.

Ratio Decidendi

The court held that the novated agreement created a conditional debt, with payment only becoming due upon finalisation of the Diamond litigation and the plaintiff's assistance in that litigation. The relief sought was declaratory, not for immediate payment. Therefore, prescription had not started to run when summons was issued or when the particulars of claim were amended. The defendant's special plea of prescription was dismissed, and the appeal succeeded.

Court Disposition

Appeal upheld; order of court a quo set aside; special plea of prescription dismissed.

Orders

  • The appeal succeeds with costs.
  • The order made in the court a quo is set aside and replaced with the following order: 'The special plea of prescription is dismissed with costs.'