Mariswe (Pty) Ltd v MEC for Roads and Public Works (411/21) [2021] ZAECBHC 2 (15 February 2021)

Mariswe (Pty) Ltd v MEC for Roads and Public Works (411/21) [2021] ZAECBHC 2 (15 February 2021)

The court found that, although the defendant admitted the debt and there was a memorandum that could be construed as an acknowledgment interrupting prescription, the plaintiff failed to annex proof of a later admission of liability, specifically the alleged correspondence of 9 September 2019. Without this evidence, the court was unable to conclude that prescription had been interrupted within the relevant period. Consequently, summary judgment was refused, and the defendant was granted leave to defend. The court declined to order attorney and client costs or to stay the action, noting that the omission to annex proof may have been an oversight and that the debt was admitted on the pleadings.

Citation
[2021] ZAECBHC 2
Parties
Applicant: Mariswe (Pty) Ltd; Respondent: MEC for Roads and Public Works
Court
Eastern Cape High Court, Bhisho
Jurisdiction
South Africa
Judgment Date
15 February 2021
Case Number
411/21
Procedural Posture
Summary Judgment Application / Opposed Application for Summary Judgment
Outcome
Summary judgment refused; defendant granted leave to defend; costs in the cause.
Judges
I.T. Stretch
Legal Topics
Prescription Act, Summary Judgment, Acknowledgment of Debt, Written Agreement
Civil Procedure Commercial and Corporate Prescription Act Summary Judgment Acknowledgment of Debt Written Agreement

Case Brief

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Parties

Mariswe (Pty) Ltd

Applicant

MEC for Roads and Public Works

Respondent

Procedural Posture

Summary Judgment Application / Opposed Application for Summary Judgment

Legal Issues

  1. 1 Whether the plaintiff's claim has prescribed under the Prescription Act.
  2. 2 Whether the defendant's memorandum interrupted prescription.
  3. 3 Whether the plaintiff failed to comply with National Treasury Note 3 of 2016/17 and is entitled to payment.

Ratio Decidendi

The court found that, although the defendant admitted the debt and there was a memorandum that could be construed as an acknowledgment interrupting prescription, the plaintiff failed to annex proof of a later admission of liability, specifically the alleged correspondence of 9 September 2019. Without this evidence, the court was unable to conclude that prescription had been interrupted within the relevant period. Consequently, summary judgment was refused, and the defendant was granted leave to defend. The court declined to order attorney and client costs or to stay the action, noting that the omission to annex proof may have been an oversight and that the debt was admitted on the pleadings.

Court Disposition

Summary judgment refused; defendant granted leave to defend; costs in the cause.

Orders

  • Summary judgment is refused.
  • The defendant is granted leave to defend.