Lisbon Estates (Pty) Ltd and Others v Mokoena N.O. and Others (39602/2013) [2015] ZAGPPHC 194 (4 March 2015)

Lisbon Estates (Pty) Ltd and Others v Mokoena N.O. and Others (39602/2013) [2015] ZAGPPHC 194 (4 March 2015)

The court found that the plaintiffs did not exercise reasonable care in ascertaining the identity of the debtor trustees. The information regarding the current trustees of the Trust was readily available from the office of the Master of the High Court, and the plaintiffs, particularly the second plaintiff who was an experienced liquidator, should have accessed this information using the available procedures. The reliance on a document from 2008 to issue summons in 2012 was unreasonable. The objective standard required by section 12(3) of the Prescription Act was not met, and the deemed knowledge of the identity of the debtor must be imputed to the plaintiffs. Consequently, prescription...

Citation
[2015] ZAGPPHC 194
Parties
Plaintiff: Lisbon Estates (Pty) Ltd (in liquidation); Plaintiff: Theodor Wilhelm van den Heever N.O.; Plaintiff: Seipati Jane Segolela N.O.; Defendant: Tryphinah Mokoena N.O.; Defendant: Nomsa Nuhlawurimanyike N.O.; Defendant: Madoda Isaac Tjie N.O.; Defendant: Tobani Michael Khoza N.O.; Defendant: Sipho David Mathebula N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
4 March 2015
Case Number
39602/2013
Procedural Posture
Civil Trial / Special Plea of Prescription Separated and Determined Before Merits
Outcome
Special plea of prescription upheld; action dismissed with costs.
Judges
Kollapen
Legal Topics
Prescription Act Section 12 3, Reasonable Care in Identifying Debtor, Objective Standard for Deemed Knowledge
Civil Procedure Prescription Act Section 12 3 Reasonable Care in Identifying Debtor Objective Standard for Deemed Knowledge

Case Brief

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Parties

Lisbon Estates (Pty) Ltd (in liquidation)

Plaintiff

Theodor Wilhelm van den Heever N.O.

Plaintiff

Seipati Jane Segolela N.O.

Plaintiff

Tryphinah Mokoena N.O.

Defendant

Nomsa Nuhlawurimanyike N.O.

Defendant

Madoda Isaac Tjie N.O.

Defendant

Tobani Michael Khoza N.O.

Defendant

Sipho David Mathebula N.O.

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription Separated and Determined Before Merits

Legal Issues

  1. 1 Whether the plaintiffs exercised reasonable care to ascertain the identity of the correct trustees of the Trust for purposes of instituting action, as required by section 12(3) of the Prescription Act.
  2. 2 Whether the debt was due and prescription commenced to run, given the plaintiffs' knowledge or deemed knowledge of the identity of the debtor.
  3. 3 Whether the action is prescribed and should be dismissed on the basis of the special plea.

Ratio Decidendi

The court found that the plaintiffs did not exercise reasonable care in ascertaining the identity of the debtor trustees. The information regarding the current trustees of the Trust was readily available from the office of the Master of the High Court, and the plaintiffs, particularly the second plaintiff who was an experienced liquidator, should have accessed this information using the available procedures. The reliance on a document from 2008 to issue summons in 2012 was unreasonable. The objective standard required by section 12(3) of the Prescription Act was not met, and the deemed knowledge of the identity of the debtor must be imputed to the plaintiffs. Consequently, prescription...

Court Disposition

Special plea of prescription upheld; action dismissed with costs.

Orders

  • The special plea is upheld with costs.
  • The action is dismissed with costs.