Seevnarayan v Essack (6082/2002) [2010] ZAKZDHC 43 (21 September 2010)

Seevnarayan v Essack (6082/2002) [2010] ZAKZDHC 43 (21 September 2010)

The court found that the plaintiff's cause of action arose and the debt became due at the date of the defendant's breach, which occurred when the defendant lent the plaintiff's monies to third parties contrary to the terms of the oral agreement. Although the plaintiff only became aware of the relevant facts and the identity of the debtor in July 1999, prescription commenced to run from that date in terms of Section 12(3) of the Prescription Act. The court rejected the argument that prescription could be postponed until all efforts to recover the loans were exhausted, holding that a creditor cannot delay prescription by his own conduct. The court applied the 'once and for all' rule,...

Citation
[2010] ZAKZDHC 43
Parties
Plaintiff: Bebinchand Seevnarayan; Defendant: Yusuf Essack
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
21 September 2010
Case Number
6082/2002
Procedural Posture
Civil Trial / Special Plea of Prescription
Outcome
The special plea of prescription is upheld. The plaintiff's action is dismissed with costs.
Judges
Msimang JP
Legal Topics
Prescription Act, Breach of Contract, Professional Negligence, Duty of Care, Oral Agreement, Damages
Civil Procedure Delict Commercial and Corporate Prescription Act Breach of Contract Professional Negligence Duty of Care Oral Agreement +1 more

Case Brief

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Parties

Bebinchand Seevnarayan

Plaintiff

Yusuf Essack

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription

Legal Issues

  1. 1 Whether the plaintiff's claims for damages based on breach of contract or breach of duty of care have become prescribed under the Prescription Act.
  2. 2 Whether the cause of action was complete and the debt due before the summons was served.
  3. 3 Whether the plaintiff's awareness of the facts and the identity of the debtor triggered the running of prescription.

Ratio Decidendi

The court found that the plaintiff's cause of action arose and the debt became due at the date of the defendant's breach, which occurred when the defendant lent the plaintiff's monies to third parties contrary to the terms of the oral agreement. Although the plaintiff only became aware of the relevant facts and the identity of the debtor in July 1999, prescription commenced to run from that date in terms of Section 12(3) of the Prescription Act. The court rejected the argument that prescription could be postponed until all efforts to recover the loans were exhausted, holding that a creditor cannot delay prescription by his own conduct. The court applied the 'once and for all' rule,...

Court Disposition

The special plea of prescription is upheld. The plaintiff's action is dismissed with costs.

Orders

  • The special plea of prescription is upheld.
  • The plaintiff's action is dismissed with costs.