Mofokeng v Du Plessis (13893/2005) [2008] ZAGPHC 242 (20 June 2008)

Mofokeng v Du Plessis (13893/2005) [2008] ZAGPHC 242 (20 June 2008)

The court found that the plaintiff's cause of action was completed on 29 April 2002 when she was attacked and admitted to hospital. She was deemed to have knowledge of the identity of the debtor and the facts giving rise to the claim at that time, or could have acquired such knowledge by exercising reasonable care. The summons was served on 29 April 2005 at 11h30, which was beyond the three-year prescriptive period commencing from 8h30 on 29 April 2002. No facts were pleaded to justify interruption or suspension of prescription, such as incapacity or lack of knowledge. Therefore, the claim had prescribed and must be dismissed.

Citation
[2008] ZAGPHC 242
Parties
Applicant: Maria Ndaba Mofokeng; Defendant: Hester Helena Lewisa Du Plessis
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
20 June 2008
Case Number
13893/2005
Procedural Posture
Civil Trial / Judgment on Special Plea of Prescription
Outcome
Plaintiff's action dismissed with costs; defendant's special plea of prescription upheld.
Judges
Mavundla
Legal Topics
Prescription Act Section 11, Running of Prescription, Knowledge of Debtor, Personal Injury, Domesticated Animals Liability
Delict Prescription Act Section 11 Running of Prescription Knowledge of Debtor Personal Injury Domesticated Animals Liability

Case Brief

Summary, issues, holding and outcome

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Parties

Maria Ndaba Mofokeng

Applicant

Hester Helena Lewisa Du Plessis

Defendant

Procedural Posture

Civil Trial / Judgment on Special Plea of Prescription

Legal Issues

  1. 1 Whether the plaintiff's claim for damages arising from injuries caused by the defendant's dogs has prescribed under section 11 of the Prescription Act.
  2. 2 Whether the plaintiff had knowledge of the identity of the debtor and the facts from which the debt arose for prescription to begin running.
  3. 3 Whether any circumstances existed to interrupt or suspend the running of prescription.

Ratio Decidendi

The court found that the plaintiff's cause of action was completed on 29 April 2002 when she was attacked and admitted to hospital. She was deemed to have knowledge of the identity of the debtor and the facts giving rise to the claim at that time, or could have acquired such knowledge by exercising reasonable care. The summons was served on 29 April 2005 at 11h30, which was beyond the three-year prescriptive period commencing from 8h30 on 29 April 2002. No facts were pleaded to justify interruption or suspension of prescription, such as incapacity or lack of knowledge. Therefore, the claim had prescribed and must be dismissed.

Court Disposition

Plaintiff's action dismissed with costs; defendant's special plea of prescription upheld.

Orders

  • The plaintiff's action against the defendant is dismissed with costs calculated on a party and party scale.