Van Zijl v Hoogenhout (348/03) [2004] ZASCA 84; [2004] 4 All SA 427 (SCA); 2005 (2) SA 93 (SCA) (27 September 2004)

Van Zijl v Hoogenhout (348/03) [2004] ZASCA 84; [2004] 4 All SA 427 (SCA); 2005 (2) SA 93 (SCA) (27 September 2004)

The Supreme Court of Appeal held that prescription under the Prescription Act 18 of 1943 begins to run when the creditor has knowledge of the wrong, which includes the ability to attribute blame to the perpetrator. In cases of chronic child sexual abuse, psychological sequelae may prevent the victim from appreciating where responsibility lies, even if the factual events are known. The evidence established that the appellant only acquired meaningful knowledge that the respondent was responsible for her harm in 1997, following a process of self-discovery and psychological insight. The respondent failed to discharge the onus of proving that prescription commenced before 1997. The trial court...

Citation
[2004] ZASCA 84
Parties
Appellant: E Van Zijl; Respondent: I M Hoogenhout
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 September 2004
Case Number
348/03
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Action on Special Plea of Prescription
Outcome
Appeal upheld; special plea of prescription dismissed; matter remitted to trial court.
Judges
MPATI, CAMERON, NUGENT, HEHER, VAN HEERDEN
Legal Topics
Prescription Act 1943, Child Sexual Abuse, Running of Prescription, Psychological Disability, Special Plea, Knowledge of Wrong
Civil Procedure Delict Prescription Act 1943 Child Sexual Abuse Running of Prescription Psychological Disability Special Plea Knowledge of Wrong

Case Brief

Summary, issues, holding and outcome

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Parties

E Van Zijl

Appellant

I M Hoogenhout

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Action on Special Plea of Prescription

Legal Issues

  1. 1 Whether the running of prescription under the Prescription Act 18 of 1943 accommodates victims of child sexual abuse who are psychologically inhibited from attributing blame to the perpetrator.
  2. 2 Whether the plaintiff had knowledge of the wrong for purposes of prescription prior to 1997.
  3. 3 Whether the defendant discharged the onus of proving that prescription commenced to run before 1997.

Ratio Decidendi

The Supreme Court of Appeal held that prescription under the Prescription Act 18 of 1943 begins to run when the creditor has knowledge of the wrong, which includes the ability to attribute blame to the perpetrator. In cases of chronic child sexual abuse, psychological sequelae may prevent the victim from appreciating where responsibility lies, even if the factual events are known. The evidence established that the appellant only acquired meaningful knowledge that the respondent was responsible for her harm in 1997, following a process of self-discovery and psychological insight. The respondent failed to discharge the onus of proving that prescription commenced before 1997. The trial court...

Court Disposition

Appeal upheld; special plea of prescription dismissed; matter remitted to trial court.

Orders

  • The application for leave to appeal is granted.
  • The appeal succeeds with costs, including the costs of the application for leave to appeal.