Rensburg and Another v Cilliers (1705/2021) [2024] ZAFSHC 290 (20 September 2024)

Rensburg and Another v Cilliers (1705/2021) [2024] ZAFSHC 290 (20 September 2024)

The court held that the exception must be dismissed. The facts pleaded in the special plea must be accepted as true for purposes of the exception. The plaintiffs' debt became due when the child was conceived or when patrimonial loss was first incurred, not only at birth. The authorities support the view that the cause of action is complete as soon as some damage is suffered, and all damages, whether already sustained or prospective, must be claimed in one action. The plaintiffs were aware of the relevant facts by 30 January 2018 and should have instituted action within three years from that date. The special plea is not excipiable, and the exception does not serve to weed out a case...

Citation
[2024] ZAFSHC 290
Parties
Plaintiff: Rochelle Mary Rensburg; Plaintiff: Clinton Kubie; Defendant: Dr JBF Cilliers
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
20 September 2024
Case Number
1705/2021
Procedural Posture
Civil Procedure / Exception to Special Plea on Prescription
Outcome
Exception dismissed with costs.
Judges
JP Daffue
Legal Topics
Extinctive Prescription, Patrimonial Loss, Wrongful Pregnancy, Once and for All Rule, Exception Procedure
Civil Procedure Delict Extinctive Prescription Patrimonial Loss Wrongful Pregnancy Once and for All Rule Exception Procedure

Case Brief

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Parties

Rochelle Mary Rensburg

Plaintiff

Clinton Kubie

Plaintiff

Dr JBF Cilliers

Defendant

Procedural Posture

Civil Procedure / Exception to Special Plea on Prescription

Legal Issues

  1. 1 Whether the defendant's special plea of prescription is excipiable and should be dismissed.
  2. 2 Whether the plaintiffs' claim for patrimonial loss arising from wrongful pregnancy prescribed before summons was issued.
  3. 3 Whether the debt became due at conception, at birth, or when patrimonial loss was first incurred.

Ratio Decidendi

The court held that the exception must be dismissed. The facts pleaded in the special plea must be accepted as true for purposes of the exception. The plaintiffs' debt became due when the child was conceived or when patrimonial loss was first incurred, not only at birth. The authorities support the view that the cause of action is complete as soon as some damage is suffered, and all damages, whether already sustained or prospective, must be claimed in one action. The plaintiffs were aware of the relevant facts by 30 January 2018 and should have instituted action within three years from that date. The special plea is not excipiable, and the exception does not serve to weed out a case...

Court Disposition

Exception dismissed with costs.

Orders

  • The exception is dismissed with costs, including the costs of counsel on scale C.