CIVIL PROCEDURE – Prescription – Acquisitive
Superior force and death of person against whom prescription is running – Whether death of person suspends period of prescription prior to appointment of executor – Contra non valentem agere nulla currit praescriptio – Words “superior force” in section 3(1)(a) must be interpreted to include the death of the owner of the property in question – Death of owner constituted an impediment that only ceased to exist when the executrixes were appointed – Prescription Act 68 of 1969, s 3(1)(a).
Facts: The immovable property located in Benoni has been registered in the name of the plaintiff’s mother-in-law, Lutchmia Katha, who passed away in 2014. The first and second defendants are the executrixes of the estate. The plaintiff contends that since 1986 to date, being a period of over 30 years, she has continuously, openly, and as if she was the owner, possessed the property of which the deceased was the registered owner.
Application: Plaintiff seeks an order declaring that she became the owner of the property by virtue of acquisitive prescription as contemplated in section 1 of the Prescription Act 68 of 1969. The defendants raised a plea based on the contention that the death of Lutchmia Katha constituted “superior force” as contemplated in section 3(1)(a) of the Prescription Act which prevented her from interrupting the running of prescription as contemplated in section 4.
Discussion: Whether the death of Lutchmia Katha delayed completion of the period of acquisitive prescription; whether the death of the party against whom prescription is running constitutes “superior force”; the context and interpretation of section 3(1)(a); that the plaintiff advances no reason of principle why the death of the person against whom prescription is running should be excluded as a circumstance suspending acquisitive prescription but yet be a basis for the suspension of extinctive prescription; and the common law maxim contra non valentem agere nulla currit praescriptio.
Findings: It would be especially inappropriate to limit the scope of the contra non valentem rule in view of the constitutional protection of property rights against arbitrary deprivation. If section 3(1)(a) is interpreted to exclude the death of a person from the scope of “superior force” that may result in the arbitrary transfer of property rights from the owner (being the estate) to the possessor. The text and purpose of section 3(1)(a) both clearly favour the defendants’ interpretation. The words “superior force” in section 3(1)(a) of the 1969 Prescription Act must be interpreted to include the death of the owner of the property in question. The death of Lutchmia Katha in 2014 constituted an impediment that only ceased to exist when the defendants were appointed as executrixes.
Order: The first and second defendant’s special plea to the plaintiff’s main claim of acquisitive prescription is upheld. The plaintiff’s claim is dismissed with costs.
MOULTRIE AJ
Khatha v Pillay NO [2023] ZAGPJHC 926
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CONSTITUTION – National Prosecuting Authority – Appointments
Functus officio doctrine – Appointments made by President Zuma and revoked by President Ramaphosa after he took office – High Court dismissing review application – President has exclusive discretion to make the appointments – Ramaphosa had to act rationally in appointing the people he did as DPP – Not obliged to explain why he did not give preference to the persons whom his predecessor wanted to appoint – Appeal dismissed – National Prosecuting Authority Act 32 of 1998, ss 12, 13(1) and 14(3).
Facts: During 2018, prior to his resignation from office, former President Zuma took steps to appoint five senior National Prosecuting Authority members as either DPPs or Special DPPs in various offices. The appointments were not announced to the public. Soon after taking office, President Ramaphosa directed his attention to these appointments. President Ramaphosa decided to revoke, amongst others, these two appointments. Aggrieved, the applicants separately approached the High Court to review and set aside this decision and the matters were heard together in the High Court.
Appeal: The High Court dismissed the review application and also ruled against the applicants in respect of their further challenges against the impugned decision. The Supreme Court of Appeal dismissed the applicants’ leave to appeal applications.
Discussion: The functus officio doctrine; that communication of a decision to an affected party is central to the finality of that decision; public and personal notification; whether Mr Abrahams, the former NDPP, had the requisite authority to notify the applicants; that the applicants have not adduced any evidence that Mr Abrahams received express or implied authorisation from the President and no evidence that there was indeed a practice as described; and whether the President’s decision to revoke the appointments was constitutionally and legally sound.
Findings: On the facts and in applying the applicable law, there was no official notification of the appointment to the applicants by the decision-maker, the President, or by his duly authorised delegatee. The President’s decision was clearly executive and not administrative in nature. The source of this power is derived from the Constitution and the National Prosecuting Authority Act 32 of 1998, both of which confer on the President exclusive discretion to make the appointments. The power is restrained only by the doctrine of legality and the rule of law. Since President Zuma’s appointments were not final decisions, President Ramaphosa was not obliged to treat them as having any legal effect at all. If President Zuma was not functus officio, it was as if no decision at all had been taken. President Ramaphosa had to act rationally in appointing the people he did to the position of DPP, but there was no obligation on him to explain why he did not give preference to the persons whom his predecessor wanted to appoint.
Order: The appeal is dismissed. The costs order of the High Court is set aside.
MAJIEDT J (majority) at paras [1]-[130]
ZONDO CJ (minority) at paras [131]-[225]
Mncwabe v President of RSA [2023] ZACC 29
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CONTRACT – Voetstoots clause – Vehicle sale
Defective radiator leading to major damage – Magistrate finding that Avis had been under a duty to disclose defect and that it had acted fraudulently by deliberately concealing it – No proof that Avis was ever aware of the defect and that it concealed its existence – The purchasers failed to prove fraud and failed to prevent Avis from relying on the voetstoots clause – Appeal succeeds.
Facts: The respondents are trustees for Algoa Bay Auto, which acquires motor vehicles for resale to the public. They purchased a Nissan NP200 from Avis in response to an online advertisement and the purchase price was R112,300. They later sold the vehicle to a third party but it suffered a major breakdown because of a material defect in the radiator. A complete engine replacement was necessary. The respondents alleged that Avis had been aware of the defect at the time of the purchase, as apparent from a service invoice, but had failed to repair the radiator, alternatively had failed to inform the respondents.
Appeal: Against a decision of the Gqeberha Magistrates’ Court which granted judgment against the appellant for R42,634 in damages arising from the sale of a defective motor vehicle.
Discussion: The contentions by Avis that by placing an online bid for the vehicle, the respondents had bound themselves to certain terms and conditions which included that the purchase of a motor vehicle was done entirely at the respondents’ risk and that the vehicle was sold voetstoots and Avis accepted no liability for any patent or latent defects; that the magistrate found that the defect with the radiator had been identified during the 75,000 km service, that Avis had been under a duty to disclose the defect to the respondents and that that Avis had acted fraudulently by deliberately concealing it; the wording of the voetstoots clause; and that Avis had leased the vehicle to ADT which had taken it to Nissan for a 75,000 km service.
Findings: There is no evidence at all that any of Avis’s directors was aware of the defect, nor evidence that any of its employees was aware. The record indicates that Nissan sent the invoice to Avis for payment, not reporting purposes. Mention of the defect was intended for Nissan’s customer, ADT. The court is satisfied that the evidence demonstrates that the respondents failed to prevent Avis from relying on the voetstoots clause. There was no proof that Avis was ever aware of the defect in the radiator at the time of the sale of the vehicle and that it concealed its existence from the respondents. The respondents failed to prove fraud. The court a quo misdirected itself in finding otherwise.
Order: The appeal succeeds with costs and the order of the court a quo is replaced with one dismissing the claim.
LAING J (GWALA AJ concurring)
Zeda ta Avis Fleet Services v Fourie NO [2023] CA136-2022 (ECMK)
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ABOUT THE EDITOR
Louis Podbielski spent ten years at Juta working on various law reports and has read many thousands of judgments for case selection. He has considerable experience in writing flynotes and headnotes, compiling case annotations, and in refining subject indexes. During his four years at LexisNexis he was involved with legal data, analytics and in developing various legal tech solutions. He now runs his own case law service Spartan Case Law
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