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IN THE HIGH COURT OF SOUTH AFRICA

(GAUTENG DIVISION, PRETORIA)

(1)       REPORTABLE: YES/NO

(2)       OF INTEREST TO OTHERS JUDGES: YES/NO

(3)       REVISED

                                                                                          Case number: A425/2018

                                                                                           Date: 26/5/2020

 

In the matter between:

 

MAUREEN FLORENCE COCHRANE                                            FIRST APPELLANT

NATALIE ELIZABETH STANISHLAWA COCHRANE                     SECOND APPELLANT

 

and

 

KAREL PIETER BEZUIDENHOUT                                               FIRST RESPONDENT

CITY OF TSHWANE METROPOLITAN

MUNICIPALITY                                                                          SECOND RESPONDENT

 

JUDGMENT

BASSON, J

 

[1]          Ten years after the two appellants, Mrs Maureen Cochrane and Mrs Natalie Cochrane (the 1^st and 2^nd plaintiffs respectively in the trial court) instituted action against Mr Bezuidenhout (“the respondent” – the first defendant in the court a quo), the dispute between the parties has not yet been brought to finality. This is also the second occasion that this dispute serves on appeal before a full bench of this division.[1]

 

[2]          The background facts giving rise to this dispute are summarised in fair detail by Vorster AJ, in the judgment of the trial court. I will accordingly suffice with only a brief summary of some of the salient facts as far as they are relevant in deciding the merits of this appeal.

 

[3]          The two appellants each bought a subdivided portion of land within the residential development known as Northview Country Estate (“the estate”) in terms of an agreement of sale entered into with the respondent during the early part of 2004.  The properties were transferred to them on 19 January 2005 and 2 February 2005 respectively. 

 

[4]          Two structures are central to the dispute between the parties: A perimeter wall that surrounds the estate and the internal service roads which provide access to and from the estate. The appellants’ claim relates to the entire perimeter wall and the entire service road of the development which the appellants allege the respondent has not constructed lawfully and according to proper engineering standards.

 

[5]          The appellants instituted action against the respondent in terms of a summons that was served on the respondent on 11 May 2009.  The appellants sued in contract and relied essentially on a breach of the respondent of an alleged implied, alternatively tacit warranty incorporated in the sale agreement, in terms of which the respondent  would have ensured that the perimeter wall and internal roads in the estate were built lawfully, in a proper workmanlike manner and according to proper engineering standards. In the particulars of claim, the appellants seek an order for specific performance against the respondent for the reinstatement of the perimeter wall and the resurfacing of the internal roads, alternatively, an order that the respondent pays damages to the appellants in the amount of R 8 066 247.43.

 

The decision of the trial court

 

The first judgment

 

[6]          The appellants lead evidence to the effect that the perimeter wall has not been constructed in accordance with the standards and regulations provided for in the National Building Regulation and Building Standards Act[2] (“the NBSA”) and neither has it been constructed in a proper workmanlike manner or according to proper engineering standards as a result of which it is unsafe. Evidence was also led that internal roads were breaking up and have not been constructed in a proper workmanlike manner nor in accordance with proper engineering standards.

 

[7]          At the close of the appellants’ case, the trial court[3] granted absolution from the instance finding that the implied warranty could not be inferred in the sale agreement. Leave to appeal this order was refused by the trial court.

 

[8]          After the Supreme Court of Appeal granted leave to appeal the absolution order, the full bench of this division concluded that “[a] court apply its mind reasonably to the evidence presented by the Plaintiffs could or might have found for the Plaintiffs at the close of the case”. The order therefore was that the appeal succeeds and that the order of the trial court is set aside and replaced with an order that the respondent’s application for absolution from the instance is dismissed with costs.

 

The special plea of prescription

 

[9]          On 10 April 2014, the respondent filed a special plea of prescription claiming that the appellants’ claim arose on 19 January 2005[4] and 2 February 2005[5] respectively when they obtained transfer of the properties. In the alternative, the respondent claims that the appellants had actual knowledge of the respondent’s alleged breach of warranty by the end of December 2005 or could reasonably have acquired the requisite knowledge thereof, had they exercised reasonable care. As a result, the respondent claims that the appellants’ summons, which was served during May 2009 - which is a date more than three years after the appellants’ claim arose - has become prescribed in terms of section 11 of the Prescription Act.[6]

 

[10]       In their replication, the appellants pleaded as follows:

 

(i)            In respect of the perimeter wall, the appellants pleaded that the respondent acknowledged expressly, alternatively, tacitly and by his conduct, his indebtedness to the appellants in respect of the claims made against him in respect of the perimeter wall in that on or about 1 November 2005, a civil engineer known as Mr Tommy Harper (“Harper”) alerted the first appellant’s husband (Mr Hilton Cochrane) to certain concerns he had about the stability of the perimeter wall. The salient part of this letter reads as follows:

 

“I feel that the Western boundary wall of your property (and the entire perimeter wall of the development) is showing signs of distress and may develop into a dangerous state.

The wall is a single skin construction with 440 white pillars at each end of the 7.5 m panel. This does not comply with any standard designs given by the NHBRC or the SABS 0400 and therefore requires a rational design by a Professional Engineer.”

Upon receipt of Harper’s letter, Mr. Hilton Cochrane furnished the respondent with a copy thereof and alerted him to the concerns raised by Harper. The respondent thereafter advised Mr. Hilton Cochrane that he had referred the question of the possible instability of the perimeter wall to his engineer, Mr. RJ Dippenaar (“Dippenaar”) who in turn had recommended certain remedial measures to the perimeter wall. The respondent undertook to implement the remedial measures and undertook to make available to the appellants the report by Dippenaar. The respondent thereafter implemented certain, but not all of the remedial measures, over an extended period of time, which continued into at least the first quarter of 2007.On 27 September 2007, Dippenaar certified that he had inspected the construction of the boundary wall and that it was carried out in accordance with approval granted under section 7 of the NBSA.

 

(ii)           In respect of the internal (service) roads, the appellants pleaded that the respondent acknowledged expressly, alternatively tacitly and by his conduct, his indebtedness to the appellants in respect of the internal roads. The respondent did so by stating, in response to complaints raised by Mr Hilton Cochrane during or about May 2006 about the wear, failure and/or breakage thereof, that he was aware of the wear, failure and/or breakage of the service road and that it was caused by concrete paving bricks which he (the respondent) alleged used in the construction of the service road and which had been fabricated from inferior material. The respondent, by undertaking to Mr Hilton Cochrane that he would take the matter up with the suppliers of the concrete paving bricks and that he would ensure that the wear, failure and/or breakage of the service road was remedied and by thereafter proceeded to carry out certain remedial work on the service road by patching specific areas thereof, acknowledged his indebtedness to the appellants made against him in respect of the service road.

Thereafter, on 25 September 2007, Mr Hilton Cochrane addressed a letter to the respondent calling for a meeting to discuss concerns including the condition of the road. In this letter, it is specifically stated that –

 

“Although the boundary wall is not stipulated as a condition for the subdivision, it is nevertheless your responsibility as it forms part of the development as offered by you and into which Maureen and the current other owners bought and into which future owners will buy. The wall is still in a defective state and incomplete. In particular the pillars, which are hollow, have not been filled with concrete and reinforcing as you indicated previously you would do, nor has the wall been properly tied into the pillars at various points on the boundary. I confirm that you have advised that you did, as recommended by the engineer, Tommy Harper in his letter of 1 November 2005 addressed to me (a copy of which I sent to you on 2 November 2005), call in an engineer to check the construction and design of the wall reported on steps to be taken to rectify the wall. We request that you furnish a copy of the report by the engineer.”

 

In a letter dated 23 October 2007, the respondent responded that he is in possession of an engineer’s (Dippenaar’s) certificate of compliance. The respondent also denied that he was under any obligation to rectify defects in the service road for the reasons set out in the letter.

 

[11]       On the basis of these facts, the appellants pleaded that the running of prescription in respect of the respondent’s indebtedness was interrupted by his aforesaid acknowledgements. In the circumstances, the appellants pleaded that prescription did not commence to run in respect of their claim in respect of the boundary wall until the first quarter of 2007 at the earliest and, in respect of the service road, from 23 October 2007 at the earliest.

 

Resumption of the trial before the trial court

 

[12]       When the trial resumed before the trial court (after the full bench set aside the order of the trial court granting absolution from the instance), the respondent closed his case without leading any evidence. The trial court handed down its judgment on 21 August 2018. It is the trial court judgment that forms the subject of this appeal.

 

[13]       The trial court found that the alleged implied terms insofar as they relate to the perimeter wall and the internal roads within the estate, should be incorporated in the sale agreements.[7] The court also accepted that the alleged implied terms were in the nature of warranties.

 

[14]       Regarding the perimeter wall, the court concluded that it was clear on the evidence that it was defective due to faulty design as from the date of its construction long before the application for subdivision of the properties took place and that the defective position thus existed at the date of the conclusion of the deeds of sale on 27 May 2004 with the respondent.[8]

 

[15]       These defects in the perimeter wall were brought to the attention of Mr Hilton Cochrane when he was presented with the report from the Civil Engineer (Harper), dated 1 November 2005. The report was then also handed over to the respondent on 2 November 2005. The trial court thus concluded that the appellants thus became aware of the defects in the perimeter wall as far back as 1 November 2005 and that the obligation to remedy those defects arose at the latest during November 2005.

 

[16]       I can find no reason to interfere with this conclusion. It is also important to note that Mr Hilton Cochrane was alerted by a civil engineer – not a layperson - of the defects in the perimeter wall. There could therefore, not have been any doubt in Mr Hilton Cochrane’s mind that defects, as identified by a civil engineer, existed in the perimeter wall at the time when the report was furnished to him in November 2005.

 

[17]       In respect of the defects in the service roads, the trial court concluded that these defects became visible and already was a concern of the first appellant when a letter dated 26 August 2005 was dispatched by her legal representatives to the General Manager: Service Delivery Department of the City of Tshwane. In this letter the City of Tshwane was requested to furnish “confirmation that the service road was rapidly approved by the Town Engineer as it is deteriorating”. This letter was thus furnished to the respondent more than a year before the first appellant and Mr Hilton Cochrane moved into their house on the estate (on 16 April 2006). When confronted with the contents of this letter in cross-examination, Mr Hilton Cochrane did not dispute the fact that he was already aware of the state of the service road as far back as 26 August 2005 and conceded that he already noticed during the construction period of the first appellant’s house that “some areas were wearing”.

 

[18]       In light of these facts, the trial court concluded that the claim for specific performance of the warranty obligations in the alleged implied term would therefore become prescribed by the latest on 1 December 2008. Summons was only served on 11 May 2009.

 

[19]       In so far as the factual findings arrived at in respect of when the appellants became aware of the defects in the perimeter wall and the service road, I can find no reason to interfere with the judgment of the trial court. The question, however, remains whether or not prescription was interrupted as claimed by the appellants.

 

Interruption of prescription

 

[20]       The appellants claimed that the running of prescription was interrupted by admission of liability by the respondent.

 

[21]       The trial court dismissed this claim and held that in none of the instances relied upon by the appellants in their replication, the respondent acknowledged any liability to the first or the second appellant neither in relation to the defective perimeter wall, nor in relation to the internal road surfaces. The court further found that the respondent, by telling Mr Hilton Cochrane that he was aware of the condition of the perimeter wall and the internal roads, and by telling Mr Hilton Cochrane that he would take the matter further with the constructor, he was not admitting any personal liability. Accordingly, the running of prescription was not interrupted and the claim became prescribed prior to the service of the summons.

 

[22]       The trial court also concluded that when Mr Hilton Cochrane spoke to the respondent, he also did not do so in the capacity of an agent or representative of his wife (the first appellant).

 

[23]       In respect of the second appellant, the trial court held that, because she had sold the property during September 2009 and transferred to it to the new buyer, she no longer had the necessary locus standi in these proceedings. In the result, the claims of both appellants were dismissed with costs.

 

The issues before this court

 

[24]       The two issues to be determined by this court are: Firstly, whether the respondent’s conduct after the defects in the perimeter wall and internal roads became manifest, constituted a tacit acknowledgement of liability as contemplated in section 14(1) of the Prescription Act and whether as a result, the running of prescription in respect of the appellants’ claim in respect of the defects were interrupted. The second issue is whether the second appellant’s claim ought to have been dismissed on the basis that she lacked the required locus standi to pursue her claim after she sold and transferred the property during September 2009. I will first briefly deal with the first issue namely whether prescription was interrupted in that there was an acknowledgement of liability by the debtor (the respondent) to the creditor or his or her agent.

 

Prescription

 

[25]       In terms section 14(1) of the Prescription Act, extinctive prescription is interrupted by an express or tacit acknowledgement of liability by the debtor:

“14  Interruption of prescription by acknowledgement of liability

(1) The running of prescription shall be interrupted by an express or tacit acknowledgement of liability by the debtor.

(2) If the running of prescription is interrupted as contemplated in subsection (1), prescription shall commence to run afresh from the day on which the interruption takes place or, if at the time of the interruption or at any time thereafter the parties postpone the due date of the debt from the date upon which the debt again becomes due.”

 

[26]       The court in Pentz v Government of the Republic of South Africa[9] explains what is contemplated by the provisions of section 14 of the Prescription Act:

 

“What is contemplated by s 14 (1) is an acknowledgment of liability for the debt. There is nothing to suggest that when the statement was made, the second defendant was aware of the provisions of s 81 of the Bills of Exchange Act, or of the existence of the debt now sued on. The words italicized express nothing more than a willingness to refund to Bantu Administration what he had received from a cheque which he had now learned to have been stolen. It was not an acknowledgment of any legal liability.

 

The second reason is that what s 14 (1) contemplates is an acknowledgment of liability to the creditor or his agent. See Markham v South African Finance & Industrial Co Ltd 1962 (3) SA 669 (A) at 676F. Counsel for the Government sought to distinguish that case on the ground that it was decided with reference to s 6 (1) (a) of the previous Prescription Act 18 of 1943, the language of which differed from s 14 (1) of the present Act. That is so, but RUMPFF JA said in Markham's case (at 676G) that, apart from the wording of s 6 (1), there were other considerations which led him to the conclusion that the words "acknowledgment by the debtor" should be construed as meaning an acknowledgment to the creditor or his agent. Those considerations apply with equal force to s 14 (1) of the present Act. Counsel for the Government did not contend that Lieut Deerans was the Government's agent to receive an acknowledgment of liability from the second defendant, and consequently there is no basis for holding that the alleged acknowledgment was communicated to the Government.”[10]

 

[27]       Although this section does not define what is meant by “acknowledgement of liability”, the courts interpret it in "a wide and general" sense to include any liability in terms of an obligation.[11] In Cape Town Municipality v Allie NO[12] the court held that any acknowledgment of liability which would interrupt the running of prescription at common law, would interrupt prescription under s 14 (1) of the Prescription Act:

 

“This brings me to the nub of the case. What criteria must an acknowledgment of liability by the debtor satisfy in order to render it capable of interrupting prescription? Answering this question entails ascertaining that the Legislature intended when it enacted in s 14 (1) of the Act of 1969 that "the running of prescription shall be interrupted by an express or tacit acknowledgment of liability". The expression "acknowledgment of liability" is not defined in the Act. The words must therefore be given their ordinary meaning having due regard to the object of the statute in which they appear. The concept of acknowledging liability is as old as the concept of litigation itself. Unless there are clear indications to the contrary, s 14 (1) must be interpreted in conformity with the common law. I can find no such contrary indications in the Act. It follows, in my view, that any acknowledgment of liability which would have served to interrupt the running of prescription at common law, will serve to interrupt it in terms of s 14 (1).”[13]

 

[28]       The mere acknowledgement that a debtor incurred an obligation is, however, not necessarily tantamount to an acknowledgement of liability. The court in Petzer v Radford (Pty) Ltd[14] explains when an acknowledgement of liability will be considered to have been established:

 

“To interrupt prescription an acknowledgment by the debtor must amount to an admission that the debt is in existence and that he is liable therefor. An admission that the debtor had incurred the obligation, coupled with an assertion that the obligation has been extinguished, will not interrupt prescription. The sub-section requires an 'acknowledgment' by the debtor. That acknowledgment may take any one of the three forms specifically set out, viz. part payment, payment of interest or giving security. The sub-section then provides, generally, that the acknowledgment may be by admitting liability in any other manner. The use of the word 'other' indicates that the admission of liability must be in a manner akin to part payment, payment of interest or the giving of security, that is to say that it must be an admission of present liability.”[15]

 

[29]       For prescription to be interrupted, an acknowledgement of liability by the debtor must therefore amount to an admission that the debt is in existence and that the debtor is liable for such debt. The issue of acknowledgement of liability is a matter of fact, it is not a matter of law. The court in Road Accident Fund v Mothupi[16] explains:

 

“For a variety of reasons the question posed must, in my opinion, be answered in the negative. In the first place an acknowledgment of liability for the purpose of s 14 of the Prescription Act is a matter of fact, not a matter of law. Thus it was stated in Agnew v Union and South West Africa Insurance Co Ltd 1977 (1) SA 617 (A) at 623A - B:

'Of daar in 'n bepaalde geval 'n erkenning van aanspreeklikheid was, is 'n feitlike vraag wat betrekking het op die bedoeling van die persoon wat as skuldenaar aangespreek is. In dié verband het Broome RP die volgende gesê in Petzer v Radford (Pty) Ltd op 317 en 318:

''To interrupt prescription an acknowledgment by the debtor must amount to an admission that the debt is in existence and that he is liable therefor.'''

 

[30]       The court in Benson and Another v Walters and others,[17] however, sounded the following word of caution when considering whether prescription has been interrupted:

 

“I turn to the alleged interruption of prescription. In terms of s 14 (1) of the Prescription Act the running of prescription is interrupted by an express or tacit acknowledgment of liability by the debtor, and the Court a quo found that four factors "cumulatively" amounted to such an acknowledgment. No doubt an alleged, but ambiguous, "acknowledgment" may fall to be interpreted in the light of preceding conduct of the debtor, but, since interruption takes place at a specific point in time, I have some difficulty in understanding how various factors can cumulatively amount to a single act of interruption.”[18]

 

[31]       Lastly, the acknowledgement of debt must be made to the debtor himself or his or her authorised agent.[19]

 

Was there an express or tacit acknowledgement of debt?

 

[32]       Neither of the two appellants testified but relied on the evidence for their claim of their respective husbands: Mr Hilton Cochrane (the husband of the first appellant) and Mr Shaun Cochrane (the husband of the second appellant). Mr Shaun Cochrane is also the son of Mr Hilton Cochrane. I will return to the issue whether either of these witnesses acted on behalf of the appellants in their dealings with the respondent.

 

The service road

 

[33]       Mr Hilton Cochrane testified to two occasions upon which the respondent allegedly acknowledged liability. The first instance was after he and his wife moved into their house on the estate on 17 April 2006. He testified that he noticed some wearing places on the road and that it gradually got worse and worse. He testified that he asked the respondent what the problem was with “the wearing” and the respondent responded as follows:

 

“And when I enquired with Mr Bezuidenhout what is that, you know, and he said no, he is aware of that, and the problems stem from the fact that the, the brick supplier or manufacturer had not put enough cement in the bricks. And there were some areas that look good, but they were also these other areas where … He was taking it up with the supplier about the bricks, and he would tend to it”.

 

The perimeter wall

 

[34]       In respect of the perimeter wall, Mr Hilton Cochrane confirmed that he gave a copy of Harper’s letter to the respondent. He thereafter spoke to the respondent who informed him that –

 

“No, he is aware of those problems with the wall, that he had employed an engineer and the engineer had given him solutions to, to address the problems that this Harper is his name, had raised in his letter, and I think that is fine, could you give me a copy [of the report from Dippenaar] At that stage she said he would, but I never got it from him.”

 

[35]       I am in agreement with the submission that this conduct relied upon by the appellants does not amount to an acknowledgement of the existence of a contractual debt, consisting of a contractual obligation to the appellants to have built the entire wall and entire road in a proper and workmanlike manner and in accordance to proper engineering standards. The conduct of the respondent also cannot be construed to constitute an admission that he (the respondent) had failed to do so, nor can it be construed as an undertaking that he (the respondent) was personally liable to the appellants in terms of those obligations to remedy defects in the entire wall and the entire road. It was also not the evidence of Mr Hilton Cochrane that he had confronted the respondent with the existence of such an obligation. There is nothing emanating from the words used by the respondent to suggest that he was aware of an existing obligation emanating from the implied, alternatively tacit terms of the sales agreement, that he was obliged to ensure that the entire wall and the entire road was built in a proper and workmanlike manner and in accordance with proper engineering standards. The statements of the respondent express nothing more than an acknowledgement that he was aware of the problems pertaining to this service road and the perimeter wall and a willingness to address those problems. His statements did not amount to an acknowledgment of any legal liability emanating from the implied alternatively tacit terms of the sales agreement.

 

The letter of 25 September 2007

 

[36]       I have already referred to the letter that Mr Hilton Cochrane wrote to the respondent on 25 September 2007. In this letter it is merely stated that –

 

 

“[a]lthough the boundary wall is not stipulated as a condition for the subdivision, it is nevertheless your responsibility as it forms part of the development as offered by you and into which Maureen [the first appellant] and the current other owners bought and into which future owners will buy. The wall is still in a defective state and is incomplete.”

 

[37]       What is glaringly absent from this letter is any allegation levelled against the respondent that there exists an obligation emanating from the implied alternatively, tacit terms of the sales agreement to the effect that he was obliged to ensure that the entire wall and the entire road was built in a proper workmanlike manner and in accordance with proper engineering standards. Instead Mr Hilton Cochrane claimed in the letter that the respondent failed to comply with the condition of the subdivision. In response to this letter, the respondent denied the allegations that he had not complied with the conditions of the subdivision and a denial that he had any responsibility in respect of the road and the wall.

 

[38]       In light of the aforegoing, I can therefore find no reason to interfere with the finding of the trial court to the effect that the respondent did not admit any personal liability. Accordingly, I can find no reason to interfere with the court’s finding that prescription was not interrupted as pleaded by the appellants.

 

Did Mr Shaun and Hilton Cochrane act as agents?

 

[39]       I have already referred to the fact that neither of the two appellants testified in court but called their respective husbands to testify in support of their claim. Neither Mr Hilton Cochrane nor Mr Shaun Cochrane confirmed in their evidence that they acted as the authorised agents of the appellants. Despite not disputing that he is a seasoned and practicing attorney, Mr Hilton Cochrane never went as far as to state that he acted as the duly authorised agent of his wife. The furthest Mr Hilton Cochrane went was to confirm that he “assisted” his wife and advised her before she signed the deed of sale. In cross-examination Mr Hilton Cochrane, however, stated that he did not know what was contained in his wife’s agreement of sale nor what was contained in his daughter-in-law’s (the second appellant) agreement. The allegation that Mr Hilton Cochrane and Mr Shaun Cochrane acted as the authorised agents of the appellants is also not to be found in the particulars of claim.

 

[40]       In light of the aforegoing, I can therefore find no reason to interfere with the finding of the trial court that the respondent did not admit any personal liability to Mr Hilton Cochrane.

 

The locus standi of the second appellant

 

[41]       In light of my findings regarding the prescription of the appellants’ claims, it is strictly not necessary to consider the second point on which the trial court dismissed the second appellant’s claim.

 

[42]       Pleadings are considered closed if either party has joined issue with any new matters without adding any further pleading. In practical terms it means litis contestatio.[20] The effect of litis contestatio is to freeze the plaintiff’s rights as at that moment. The subsequent filing of a further plea after the close of pleadings or an amendment to the pleadings thereafter does not alter the fact that the pleadings were closed and that litis contestatio has been reached_.  This was confirmed by the court in Potgieter v Sustain (Edms) Bpk[21] as follows:

 

“Na my mening kan hierdie argument nie opgaan nie. Wat mnr Badenhorst in sy betoog nie in aanmerking neem nie, is dat, totdat pleitstukke gesluit is ingevolge Hofreël 29, partye tot die geding pleitstukke liasseer by wyse van 'n reg. Na sluiting van die pleitstukke ingevolge die Hofreël, kan verdere pleitstukke slegs geliasseer word by wyse van 'n vergunning. Indien die vergunning nie verkry word nie, hetsy van die teenparty of van die Hof, bly die reeds geslote pleitstukke onveranderd en sou eiser op daardie pleitstukke sy saak moes voer. Mnr Badenhorst se siening kom in effek daarop neer dat die sluiting van pleitstukke ingevolge Reël 29 slegs voorwaardelik is. Dit gebeur male sonder tal dat pleitstukke na 'sluiting van die pleitstukke' gewysig word, selfs tydens die verhoor van die saak. Volgens mnr Badenhorst kan eers dan vasgestel word of die pleitstukke inderdaad 'gesluit' was toe dit ingevolge Reël 29 as gesluit beskou was.

            Ek vind hierdie konstruksie nie aanvaarbaar nie.”

 

[43]       The particulars of claim are dated 28 April 2009.[22] The plea is dated 27 May 2009. The second appellant only sold her property during September 2009 hence after litis contestatio. In the absence of a special plea filed by the respondent, the second appellant therefore retained the right to pursue her claim.

 

The order

 

[44]       In the event the following order is made.

           

“The appeal is dismissed with costs.”

 

                                                                                                        JUDGE A C BASSON

                                  JUDGE OF THE HIGH COURT

                                                                                     

I agree                                                                                           

                                                                                                                          RAULINGA J

                                                                                              JUDGE OF THE HIGH COURT

                                                                       

I agree                                                                                                         

                                                                                                                             TLHAPI VV

                                                                                              JUDGE OF THE HIGH COURT

 

Appearances:

For the Applicant               :           Adv GF Porteous

Instructed by                      :           Tim Stokes Attorneys

c/o Spoor & Fisher Attorneys

 

For the Respondents         :           Adv Linde Putter SC

                                                            Adv P Van Rensburg

Instructed by                      :          Van Zyl Le Roux Inc

 

Matter heard on                 :           4 May 2020

Date of Judgment             :           26 March 2020

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