Protea International (Pty) Ltd v Peat Marwick Mitchell & Company (623/88) [1990] ZASCA 16; 1990 (2) SA 566 (AD); [1990] 2 All SA 199 (A) (16 March 1990)

Protea International (Pty) Ltd v Peat Marwick Mitchell & Company (623/88) [1990] ZASCA 16; 1990 (2) SA 566 (AD); [1990] 2 All SA 199 (A) (16 March 1990)

The court held that the amendment to section 12(3) of the Prescription Act, which introduced a knowledge requirement for prescription of contractual debts, operates only prospectively from 7 March 1984. Since the appellant's contractual debt became due at the latest on 10 August 1983, prescription commenced then and was completed on 9 August 1986. The amendment does not apply to prescription already running before its operative date. The appellant's claim was therefore prescribed before service of summons on 23 October 1986. The appeal was dismissed with costs.

Citation
[1990] ZASCA 16
Parties
Appellant: Protea International (Pty) Ltd; Respondent: Peat Marwick Mitchell & Company
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
16 March 1990
Case Number
623/88
Procedural Posture
Civil Appeal / Appeal From Special Plea of Prescription Upheld in Limine
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
C P Joubert, Vivier, Milne, Friedman, Nienaber
Legal Topics
Extinctive Prescription, Prescription Act, Retrospective Application of Statutes, Contractual Debt, Statutory Interpretation
Civil Procedure Extinctive Prescription Prescription Act Retrospective Application of Statutes Contractual Debt Statutory Interpretation

Case Brief

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Parties

Protea International (Pty) Ltd

Appellant

Peat Marwick Mitchell & Company

Respondent

Procedural Posture

Civil Appeal / Appeal From Special Plea of Prescription Upheld in Limine

Legal Issues

  1. 1 Whether the appellant's contractual claim for damages had become prescribed before service of summons.
  2. 2 Whether the amendment to section 12(3) of the Prescription Act applies to prescription that commenced before its operative date.
  3. 3 Whether the amendment operates retrospectively or prospectively regarding contractual debts.

Ratio Decidendi

The court held that the amendment to section 12(3) of the Prescription Act, which introduced a knowledge requirement for prescription of contractual debts, operates only prospectively from 7 March 1984. Since the appellant's contractual debt became due at the latest on 10 August 1983, prescription commenced then and was completed on 9 August 1986. The amendment does not apply to prescription already running before its operative date. The appellant's claim was therefore prescribed before service of summons on 23 October 1986. The appeal was dismissed with costs.

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.