Viviers NO and Another v Barnard NO (A441/2007) [2008] ZAFSHC 153 (19 December 2008)

Viviers NO and Another v Barnard NO (A441/2007) [2008] ZAFSHC 153 (19 December 2008)

The court found that the respondent, as executor, became aware of the existence of a contract and a possible debt in February 2003 but failed to take reasonable steps to obtain the contract and ascertain the identity of the debtor and the facts giving rise to the debt. Had the respondent exercised reasonable care, he would have acquired the necessary knowledge before prescription would have run. The oral agreement alleged by the respondent was invalid due to the contract's non-variation clause. Therefore, prescription commenced at the end of February 2003, and the claim was already prescribed when summons was served. The trial court erred in finding that prescription only began on 21...

Citation
[2008] ZAFSHC 153
Parties
Appellant: Hermanus Viviers N.O.; Appellant: Hermanus Viviers; Respondent: Phillipus Stefanus Barnard N.O.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
19 December 2008
Case Number
A441/2007
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Special Plea of Prescription
Outcome
Appeal upheld. The special plea of prescription is sustained. The order of the trial court is set aside.
Judges
Ebrahim, R, Van Zyl, R
Legal Topics
Extinctive Prescription, Verjaringswet, Reasonable Care, Knowledge of Debtor, Contractual Modification
Civil Procedure Extinctive Prescription Verjaringswet Reasonable Care Knowledge of Debtor Contractual Modification

Case Brief

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Parties

Hermanus Viviers N.O.

Appellant

Hermanus Viviers

Appellant

Phillipus Stefanus Barnard N.O.

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Special Plea of Prescription

Legal Issues

  1. 1 Whether the respondent's claim against the appellants had prescribed under the Prescription Act.
  2. 2 Whether the respondent, as executor, had knowledge of the identity of the debtor and the facts giving rise to the debt before 21 January 2005.
  3. 3 Whether reasonable care was exercised by the respondent to ascertain the debtor's identity and the facts from which the debt arose.

Ratio Decidendi

The court found that the respondent, as executor, became aware of the existence of a contract and a possible debt in February 2003 but failed to take reasonable steps to obtain the contract and ascertain the identity of the debtor and the facts giving rise to the debt. Had the respondent exercised reasonable care, he would have acquired the necessary knowledge before prescription would have run. The oral agreement alleged by the respondent was invalid due to the contract's non-variation clause. Therefore, prescription commenced at the end of February 2003, and the claim was already prescribed when summons was served. The trial court erred in finding that prescription only began on 21...

Court Disposition

Appeal upheld. The special plea of prescription is sustained. The order of the trial court is set aside.

Orders

  • The appeal succeeds, with costs.
  • The order of the court a quo is set aside and replaced with: 'The defendants' special plea of prescription is upheld with costs.'