Rautenbach N.O. v CMW Operations (EDMS) Bpk (4623/2012) [2016] ZAFSHC 8 (7 January 2016)

Rautenbach N.O. v CMW Operations (EDMS) Bpk (4623/2012) [2016] ZAFSHC 8 (7 January 2016)

The court found that the respondent's special plea of prescription was not defective, as the issue of prescription was fully canvassed by both parties at trial and the precise date prescription commenced was a variable within the period defined by the pleadings and evidence. The applicant could, by exercising reasonable care, have acquired constructive knowledge of the facts and the identity of the debtor from 27 August 2009, and well before October 2010. The grounds for leave to appeal were factual and did not raise any question of law. The applicant failed to convince the court that there was a reasonable prospect of success on appeal, as required by section 17(1)(a)(i) of the Superior...

Citation
[2016] ZAFSHC 8
Parties
Applicant: Annelize Rautenbach N.O.; Respondent: CMW Operations (EDMS) Bpk
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
7 January 2016
Case Number
4623/2012
Procedural Posture
Leave to Appeal / Application for Leave to Appeal After Judgment Upholding Special Plea of Prescription
Outcome
Application for leave to appeal dismissed with costs.
Judges
Rampai
Legal Topics
Prescription Act 68 of 1969, Special Plea of Prescription, Leave to Appeal, Constructive Knowledge, Pleading Requirements
Civil Procedure Prescription Act 68 of 1969 Special Plea of Prescription Leave to Appeal Constructive Knowledge Pleading Requirements

Case Brief

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Parties

Annelize Rautenbach N.O.

Applicant

CMW Operations (EDMS) Bpk

Respondent

Procedural Posture

Leave to Appeal / Application for Leave to Appeal After Judgment Upholding Special Plea of Prescription

Legal Issues

  1. 1 Whether the applicant has shown reasonable prospects of success for leave to appeal against the judgment upholding the respondent's special plea of prescription.
  2. 2 Whether the respondent's special plea of prescription was defective for failing to plead the precise date prescription commenced.
  3. 3 Whether the applicant could, by reasonable care, have acquired knowledge of the facts and identity of the debtor before the claim prescribed.

Ratio Decidendi

The court found that the respondent's special plea of prescription was not defective, as the issue of prescription was fully canvassed by both parties at trial and the precise date prescription commenced was a variable within the period defined by the pleadings and evidence. The applicant could, by exercising reasonable care, have acquired constructive knowledge of the facts and the identity of the debtor from 27 August 2009, and well before October 2010. The grounds for leave to appeal were factual and did not raise any question of law. The applicant failed to convince the court that there was a reasonable prospect of success on appeal, as required by section 17(1)(a)(i) of the Superior...

Court Disposition

Application for leave to appeal dismissed with costs.

Orders

  • The application for leave to appeal is dismissed.
  • The applicant is directed to pay the costs.