Latib v Pro Sano Medical Scheme (6045/2008) [2012] ZAWCHC 234 (12 December 2012)

Latib v Pro Sano Medical Scheme (6045/2008) [2012] ZAWCHC 234 (12 December 2012)

The court held that the alleged agreement of 27 October 2004 created a right for the plaintiff to approach the court for a determination of quantum, and that this right constituted a debt for purposes of prescription. Prescription commenced to run on the date of the agreement, as the plaintiff was entitled from that moment to seek a determination from the court. Alternatively, prescription would have commenced on the date of repudiation, which was communicated by the defendant's letter of 5 April 2005. In either scenario, service of summons on 21 April 2008 occurred more than three years after prescription began to run. The payments made by the defendant in 2005 did not interrupt...

Citation
[2012] ZAWCHC 234
Parties
Plaintiff: Shabeer Latib; Defendant: Pro Sano Medical Scheme
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
12 December 2012
Case Number
6045/2008
Procedural Posture
Civil Trial / Special Plea of Prescription Determined Separately Before Merits
Outcome
Special plea of prescription upheld; action dismissed with costs, including costs of two counsel.
Judges
A.G. Binns-Ward
Legal Topics
Extinctive Prescription, Contract Novation, Cause of Action, Interruption of Prescription
Civil Procedure Commercial and Corporate Extinctive Prescription Contract Novation Cause of Action Interruption of Prescription

Case Brief

Summary, issues, holding and outcome

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Parties

Shabeer Latib

Plaintiff

Pro Sano Medical Scheme

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription Determined Separately Before Merits

Legal Issues

  1. 1 Whether the plaintiff's claim against the defendant is extinguished by prescription under the Prescription Act.
  2. 2 When prescription commenced to run in respect of the alleged agreement concluded on 27 October 2004.
  3. 3 Whether payments made by the defendant in 2005 interrupted prescription.

Ratio Decidendi

The court held that the alleged agreement of 27 October 2004 created a right for the plaintiff to approach the court for a determination of quantum, and that this right constituted a debt for purposes of prescription. Prescription commenced to run on the date of the agreement, as the plaintiff was entitled from that moment to seek a determination from the court. Alternatively, prescription would have commenced on the date of repudiation, which was communicated by the defendant's letter of 5 April 2005. In either scenario, service of summons on 21 April 2008 occurred more than three years after prescription began to run. The payments made by the defendant in 2005 did not interrupt...

Court Disposition

Special plea of prescription upheld; action dismissed with costs, including costs of two counsel.

Orders

  • The special plea of prescription is upheld.
  • The action is dismissed with costs, including the costs of two counsel.