Naidoo NO and Others v Naidoo and Another (AR 567/09) [2010] ZAKZPHC 41; 2010 (5) SA 514 (KZP) (30 July 2010)

Naidoo NO and Others v Naidoo and Another (AR 567/09) [2010] ZAKZPHC 41; 2010 (5) SA 514 (KZP) (30 July 2010)

The court held that prescription commenced running on 24 April 2001, the date of the settlement agreement, as the obligation to transfer property became immediately claimable. The applicants failed to allege and prove facts showing that prescription was delayed or interrupted due to the deaths of parties and the appointment of executors, as required by section 13 of the Prescription Act. The mere signing of transfer documents and correspondence did not suffice to interrupt prescription, which requires service of process. As the application for specific performance was only launched on 18 July 2007, after the three-year prescription period had expired, the claim had prescribed. The lower...

Citation
[2010] ZAKZPHC 41
Parties
Appellant: Narainsamy Naidoo N.O.; Appellant: Narainsamy Naidoo; Appellant: Yogavathi Naidoo N.O.; Appellant: Govindamah Naidoo; Appellant: Yogavathi Naidoo; Respondent: Radha Naidoo; Respondent: Radha Naidoo N.O.
Court
Kwazulu-Natal High Court, Pietermaritzburg
Jurisdiction
South Africa
Judgment Date
30 July 2010
Case Number
AR 567/09
Procedural Posture
Civil Appeal / Appeal From Order of Specific Performance in Lower Court
Outcome
Appeal upheld; application for specific performance dismissed as prescribed.
Judges
K Swain, Ntshangase, Msimang
Legal Topics
Prescription Act, Specific Performance, Estate Transfer, Onus of Proof
Civil Procedure Land and Property Prescription Act Specific Performance Estate Transfer Onus of Proof

Case Brief

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Parties

Narainsamy Naidoo N.O.

Appellant

Narainsamy Naidoo

Appellant

Yogavathi Naidoo N.O.

Appellant

Govindamah Naidoo

Appellant

Yogavathi Naidoo

Appellant

Radha Naidoo

Respondent

Radha Naidoo N.O.

Respondent

Procedural Posture

Civil Appeal / Appeal From Order of Specific Performance in Lower Court

Legal Issues

  1. 1 Whether the claim for specific performance to transfer immovable property had prescribed.
  2. 2 Who bears the onus to allege and prove interruption or delay of prescription under section 13 of the Prescription Act.
  3. 3 Whether the applicants established facts to delay or interrupt prescription due to deaths and appointment of executors.

Ratio Decidendi

The court held that prescription commenced running on 24 April 2001, the date of the settlement agreement, as the obligation to transfer property became immediately claimable. The applicants failed to allege and prove facts showing that prescription was delayed or interrupted due to the deaths of parties and the appointment of executors, as required by section 13 of the Prescription Act. The mere signing of transfer documents and correspondence did not suffice to interrupt prescription, which requires service of process. As the application for specific performance was only launched on 18 July 2007, after the three-year prescription period had expired, the claim had prescribed. The lower...

Court Disposition

Appeal upheld; application for specific performance dismissed as prescribed.

Orders

  • The appeal succeeds; the judgment of the court a quo is set aside and replaced with an order dismissing the application.
  • The first and second applicants are ordered to pay the costs of the first, second, third, fourth and fifth respondents, jointly and severally, the one paying the other to be excused.