Symes N.O and Another v Stuart Van der Merwe Inc and Others (24400/2015) [2018] ZAGPPHC 885 (17 May 2018)

Symes N.O and Another v Stuart Van der Merwe Inc and Others (24400/2015) [2018] ZAGPPHC 885 (17 May 2018)

Prescription did not commence the day after the payments were made, as the plaintiffs only became aware of the payments and the identity of the debtor after conducting the insolvency enquiry on 13 March 2014. Section 12(3) of the Prescription Act requires actual or deemed knowledge before prescription begins. Furthermore, civil proceedings were suspended until the appointment of the liquidators on 3 August 2013, so prescription could not run before that date. The defendants' argument that prescription began immediately after payment is incorrect, as it disregards the statutory requirements for knowledge and the suspension of proceedings. The plaintiffs' claim was instituted within the...

Citation
[2018] ZAGPPHC 885
Parties
Plaintiff: Maryna Estelle Symes N.O; Plaintiff: Louise Muller N.O; Defendant: Stuart Van der Merwe Inc; Defendant: Ruan Kruger; Defendant: Marlon Lesley Stuart
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 May 2018
Case Number
24400/2015
Procedural Posture
Civil Trial / Special Plea of Prescription Adjudicated Separately Under Rule 33(4)
Outcome
The special plea of prescription is dismissed with costs.
Judges
Sardiwalla
Legal Topics
Prescription Act, Liquidation Proceedings, Court Order Contravention, Knowledge of Debt, Commencement of Prescription
Civil Procedure Commercial and Corporate Prescription Act Liquidation Proceedings Court Order Contravention Knowledge of Debt Commencement of Prescription

Case Brief

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Parties

Maryna Estelle Symes N.O

Plaintiff

Louise Muller N.O

Plaintiff

Stuart Van der Merwe Inc

Defendant

Ruan Kruger

Defendant

Marlon Lesley Stuart

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription Adjudicated Separately Under Rule 33(4)

Legal Issues

  1. 1 When did the plaintiffs' claim arise for the purposes of prescription.
  2. 2 When did prescription begin to run in respect of the payments made contrary to the court order.

Ratio Decidendi

Prescription did not commence the day after the payments were made, as the plaintiffs only became aware of the payments and the identity of the debtor after conducting the insolvency enquiry on 13 March 2014. Section 12(3) of the Prescription Act requires actual or deemed knowledge before prescription begins. Furthermore, civil proceedings were suspended until the appointment of the liquidators on 3 August 2013, so prescription could not run before that date. The defendants' argument that prescription began immediately after payment is incorrect, as it disregards the statutory requirements for knowledge and the suspension of proceedings. The plaintiffs' claim was instituted within the...

Court Disposition

The special plea of prescription is dismissed with costs.

Orders

  • The special plea is dismissed with costs.