Wonder Air (Pty) Ltd v Dodson International Parts and Another (5597/2011) [2013] ZAGPPHC 310 (24 October 2013)

NOT REPORTABLE

IN THE NORTH GAUTENG HIGH COURT,

PRETORIA (REPUBLIC OF SOUTH AFRICA)

Case number: 5597/2011

Date 24 Oktober 2013

In the matter between :

WONDER AIR (PTY) LTD....................................................Plaintiff

and

DODSON INTERNATIONAL PARTS

SOUTH AFRICA (PTY) LTD............................................Defendant

JUDGMENT

JANSE VAN NIEUWENHUIZEN AJ

[1] The plaintiff, in its capacity as owner and/or possessor of two Pratt & Whitney PT6A65AR Turbine Engines, instituted action against the defendant for the delivery of the engines alternatively for payment of the amount of $ 1 600 000, 00 with interests and costs.

[2] The plaintiff alleges that the two engines were installed in a Dakota DC3- 65IP belonging to the defendant and that the defendant refuses and/or neglects to return the engines to the plaintiff.

SEPARATION OF ISSUES

[3] At the inception of the trial I was informed by Mr van Rensburg, counsel for the plaintiff, that the parties have agreed to separate the issue pertaining to the defendant's special plea of prescription from the remainder of the issues in dispute.

[4] Consequently I made an order in terms of rule 33(4) of the Uniform rules of Court, ordering the separation agreed upon by the parties and postponing the remainder of the issues sine die.

SPECIAL PLEA

[5] The plaintiff, in its initial particulars of claim issued on 8 February 2011, made, inter alia, the following averments in support

of its claim for the return of the engines and/or payment of the amount claimed:

3.

At all relevant times. Plaintiff was the owner of two............. turbine engines..."

4.

On or about July 2008:

3.1 and after Plaintiff ferried a Dakota the property of or belonging to Defendant from Lanseria Airportto Wonderboom Airport at the instanceand instructions of Defendant;

and whilst

3.2 the engines belonging to Plaintiff were still installed in Defendant's Dakota,

Defendant there and then, acting through its Director, one Robert Lee Dodson (Snr), unlawfully, whilst knowing that he is not entitled to do so and without the knowledge and/or consent of Plaintiff removed, alternatively gave instructions for the said Dakota aircraft to be removed from Wonderboom Airport to Otawa in Kansas. in the United States of America."

[6] I pause to mention that the plaintiff also has a second claim for damages, which claim is, however, not relevant to the issue to be decided herein.

[7] On 13 March 2013, the plaintiff affected an amendment to its initial particulars of claim, in terms of which amendment the following

averments were introduced;

At all relevant times, Plaintiff was the owner of two................. Turbine Engines,

alternatively and if it is found that the Plaintiff is not the owner of the engines the Plaintiff was the possessor of the engines and possessed the engines by virtue of one or more of the following facts:..

4.1 and after Plaintiff ferried a Dakota the property of or belonging to Defendant from Lanseria Airportto Wonderboom Airport at the instance and instructions of Defendant:

4.2 the engines

4.2.1 Belonging to Plaintiff; alternatively

4.2.2 The possession of which Plaintiff was entitled to,

were still installed in Defendant's Dakota"

Defendant there and then, acting through its Director one Robert Lee Dodson (Snr), unlawfully, whilst knowing that he is not entitled to do so and without the knowledge and/or consent of Plaintiff removed, alternatively gave instructions for the said Dakota aircraft to be removed from Wonderboom Airport to Otawa in Kansas, in the United States of America."

(own emphasis)

[8] The defendant filed an amended plea and counterclaim and raised a special plea of prescription to the amended particulars and more particularly to the allegations emphasised supra.

[9] The special is premised on the basis that the plaintiff introduced a new cause of action and the relevant portions of the special plea reads as follows:

2.

The Plaintiff’s alleged claim (in the alternative) against the Defendant arose by the latest during July 2008.

The Plaintiff effected the Amendment to include the alternative cause of action, namely to rely on a right of possession to the aircraft engines, during February 2013.

In terms of Section 11(d) of the Prescription Act, 68 of 1969, the applicable period of prescription is a period of three years.

5.

Because a period of more than three years has lapsed since the alleged (alternative) claim of the Plaintiff arose, to the date of Plaintiff effecting the Amendment, the Plaintiffs claim has become prescribed by virtue of the provisions of Section 10(1) of the Act.

SUBMISSIONS:

[10] Mr Pelser SC, counsel for the defendant, first of all submitted that the plaintiffs initial claim was based on a rei vindication and an actio ad exhibendum.

[11] Mr Pelser SC, further submitted that the amendment effectively removed the plaintiffs reliance on ownership and on an analysis of the new allegations the plaintiff is now relying on an enrichment claim without specifying such action.

[11] In the premises, the amended claim is a new debt and the debt has prescribed.

[12] Mr van Rensburg did not agree. He submitted, that the plaintiffs cause of action was and is still based on the condictio furtiva. Mr chance van Rensburg, furthermore, submitted that only the capacity in which the plaintiff claims relief has been amended.

[13] In response to the aforesaid submissions, Mr Pelser SC, in additional heads of argument made the following submission after referring to various case law and text books:

"What is stated above reinforces the argument of the Defendant that the condiction furtiva is not available to the Plaintiff once he has established that he cannot prove ownership. He cannot change tack so as to rely upon having been in possession. It is a new debt that the Plaintiff is trying to recover."

PLAINTIFF'S CAUSE OF ACTION:

[14] It is clear from the plaintiffs initial particulars of claim that the plaintiff relied on the condictio furtiva. The necessary allegations in this regard are contained in the particulars of claim.

[15] The same allegations sustaining a cause of action based on the condictio furtiva, are alleged in the amended particulars of claim.

[17] The only question to be determined is whether the fact that the plaintiff initially claimed as owner and in terms of the amended

particulars of claim as possessor, constitutes a new debt.

PRESCRIPTION ACT - DEBT

[18] Section 10(1) of the Prescription Act, 68 of 1969 ("the Act"), provides as follows:

"Subject to the provisions of this Chapter and of Chapter IV, a debt shall be extinguished by prescription after the lapse of the period which in terms of the relevant law applies in respect of the prescription of such debt" (own emphasis)

[19] A "debt” as it appears in section 10(1) of the Act, has been succinctly defined by Trollip JA in Evins v Shield Insurance Co Ltd 1980 (2) SA 814 AD at 825 F-H:

7 prefer to use the term “right of action” to " cause of action” because, I think, the former is strictly and technically more legally correct in the present context (cf Mazibuko v Singer 1979 (3) SA 258 (W) at 265D-G).

"Cause of action” is ordinarily used to describe the factual basis, the set of material facts, that begets the plaintiff’s legal right of action and, complementarity, the dependants “debt”, the word used in the Prescription Act."

"The debt is not the material set of facts. It is that which is begotten by the set of material facts."

[21] The rationale behind the provisions of the Prescription Act has ( with reference to its predecessor) been explained by Holmes JA in Santam Insurance Company Ltd v Vilakazi 1967 (1) SA 246 AD at 253H as follows:

“In my opinion it is clear that the service referred to in sec. 6 (1) (b) must be a service whereby action is instituted as a step in the enforcement of the claim or right. The underlying reason why such service interrupts prescription is that the creditor has thereby formally involved his debtor in court proceedings for the enforcement of his claim”

[22] The debt the plaintiff intended to enforce in its unamended particulars of claim was the return of the engines alternatively

payment of an amount equal to the value of the engines. The plaintiff claims the same debt in its amended particulars of claim, albeit that the plaintiff has added another capacity in which it claims the debt. In other words, what the plaintiff "begets" prior and subsequent to the amendment remains the same.

[23] I am, furthermore, satisfied that the defendant knew at all relevant times, what the claim, the plaintiff endeavors to enforce, is.

CONCLUSION

[24] In the premises, the amendment effected by the plaintiff on 13 March 2013 did not introduce a new 'debt" as envisaged by the Act and the defendant's special plea of prescription falls to be dismissed.

ORDER:

I make the following order:

The defendant's special plea of prescription is dismissed with costs.

Kl Janse van Nieuwenhuizen

Acting Judge of the North Gauteng High Court, South Africa

For the applicant: Van Zyl Le Roux Inc

Counsel for applicant: Adv Van Rensburg

For the Defendant: Coetzer & Partners

Counsel for Defendant: Adv Q Pelser SC