Santam Ltd. v Ethwar (197/97) [1998] ZASCA 102; 1999 (2) SA 244 (SCA); [1999] 1 All SA 252 (A) (26 November 1998)

Santam Ltd. v Ethwar (197/97) [1998] ZASCA 102; 1999 (2) SA 244 (SCA); [1999] 1 All SA 252 (A) (26 November 1998)

The Supreme Court of Appeal held that the respondent's claim for costs under the settlement agreement did not become prescribed three years after the acceptance of the offer. The right to recover costs was contingent upon agreement or taxation, which required third-party intervention and was not a simple procedural step under the respondent's control. Prescription could not commence until the costs were quantified by agreement or taxation. The appellant's reliance on the date of settlement as the inception of prescription was misplaced, as the cause of action was incomplete until quantification occurred. The appeal was dismissed, and the respondent's claim for costs was not prescribed.

Citation
[1998] ZASCA 102
Parties
Appellant: Santam Limited; Respondent: Sonraj Ethwar
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 November 1998
Case Number
197/97
Procedural Posture
Civil Appeal / Appeal From the Durban and Coast Local Division
Outcome
Appeal dismissed with costs, including costs of two counsel.
Judges
Van Heerden, Harms, Plewmann, Farlam, Ngoepe
Legal Topics
Prescription Act, Declaratory Relief, Costs Taxation, Settlement Agreement
Civil Procedure Prescription Act Declaratory Relief Costs Taxation Settlement Agreement

Case Brief

Summary, issues, holding and outcome

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Parties

Santam Limited

Appellant

Sonraj Ethwar

Respondent

Procedural Posture

Civil Appeal / Appeal From the Durban and Coast Local Division

Legal Issues

  1. 1 Whether the respondent's claim for costs arising from the settlement agreement became prescribed on 17 September 1995.
  2. 2 Whether the right to tax a bill of costs constitutes a 'debt' under the Prescription Act.
  3. 3 When does prescription commence running in respect of a claim for costs under a settlement agreement?

Ratio Decidendi

The Supreme Court of Appeal held that the respondent's claim for costs under the settlement agreement did not become prescribed three years after the acceptance of the offer. The right to recover costs was contingent upon agreement or taxation, which required third-party intervention and was not a simple procedural step under the respondent's control. Prescription could not commence until the costs were quantified by agreement or taxation. The appellant's reliance on the date of settlement as the inception of prescription was misplaced, as the cause of action was incomplete until quantification occurred. The appeal was dismissed, and the respondent's claim for costs was not prescribed.

Court Disposition

Appeal dismissed with costs, including costs of two counsel.

Orders

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