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IN THE HIGH COURT OF SOUTH AFRICA

(BOPHUTHATSWANA PROVINCIAL DIVISION)

CASE NO: 1188/05

In the matter between:

MINISTEROFJUSTICEAND CONSTITUTIONAL DEVELOPMENT Applicant

and

BAIKANNE JANE MATHOBELA 1^st Respondent

DIRECTOR GENERAL OF DEPARTMENT 2^nd Respondent

OF FINANCE

DIRECTOR GENERAL OF 3^rd Respondent

THE DEPARTMENT OF FINANCE

CIVIL MATTER

DATE OF HEARING : 12 DECEMBER 2006

DATE OF JUDGMENT : 25 JANUARY 2007

COUNSEL FOR THE APPLICANT : ADV R RAMAWELE

COUNSEL FOR THE FIRST RESPONDENT : ADV A J SWART

JUDGMENT

HENDRICKS J:

[A] Introduction:-

[1] The Applicant applies to this Court for an order in the following terms:-

“[i] Directing that the pension monies in the amount of R336 589-67 due and payable to First Respondent by the Second Respondent be hereby attached and paid over to Applicant by the Second Respondent within 14 days of this order;

[ii] Directing that First Respondent pay the costs of this application only in the event of First Respondent opposing this application;

[iii] No costs are sought against Second and Third Respondents respectively, save in the event that they oppose this application;

[iv] Granting the Applicant further and/or alternative relief.”

[2] The Second and Third Respondents did not oppose this application. The First Respondent filed a notice of intention to oppose but no answering affidavit was filed. Only a set of heads of argument was filed on behalf of the First Respondent.

[B] Factual Background:-

[3] The First Respondent, whilst she was an acting Magistrate for the Molopo district, was inter alia charged with the responsibility of administering deceased estates. Her duties entailed, amongst others, the authorization and payment of deceased estates benefits to the rightful beneficiaries.

[4] On the 2^nd February 2002 she was arrested and charged with 37 counts of theft of deceased estates monies, totaling

R445 508-50 (four hundred and forty five thousand five hundred and eight rand and fifty cents), which was stolen at Molopo Magistrate Court during the period October 1997 to February 1999.

[5] She pleaded guilty to all the charges leveled against her in the Mmabatho Regional Court. She was convicted and sentenced to eight (8) years imprisonment on the 02^nd October 2002.

[6] On the 13^th May 2002 however, the First Respondent signed an acknowledgement of debt thereby acknowledging her indebtedness to the Department of Justice and Constitutional Development in the amount of R455 508-50. She further gave permission that this amount be recovered from her pension benefits.

[7] The Second Respondent is currently in possession of an amount of R336 589-67 (three hundred and thirty six thousand five hundred and eighty nine rand and sixty seven cents), being the pension monies belonging to the First Respondent. The aforesaid pension monies are due and payable by the Second Respondent to the First Respondent, hence this application.

[C] The Dispute:-

[8] In the heads of argument filed on behalf of the First Respondent by her legal representative, Adv Swart the following legal submissions were inter alia made:-

[i] that the debt arising from the acknowledgement of debt had prescribed;

and

[ii] that it was not necessary for the First Respondent to file an answering affidavit.

I will now deal with these submissions.

[i] Prescription:-

[9] It was submitted by Adv Swart that the acknowledgement of debt was signed on the 13^th May 2002 and prescription began to run from that date. The Applicant instituted these proceedings for the enforcement of the acknowledgement of debt on 19 September 2005. Because more than three (3) years had lapsed, so it was submitted, the claim had prescribed.

[10] Section 17 of the Prescription Act, Act 68 of 1969 provides:-

“ 17. Prescription to be raised in pleadings:-

1. A court shall not of its own motion take notice of prescription.

(2) A party to litigation who invokes prescription, shall do so in the relevant documents filed of record in the proceedings: Provided that a court may allow prescription to be raised at any stage of the proceedings.”

[11] Section 17 (1) forbids that a court take mero motu cognizance of the fact that a claim had prescribed. Understandably so, because there may well be certain facts which are not placed before the court that may have interrupted the running of prescription. Prescription must be invoked by the party who raises it as a defence and it must be done in the relevant document.

[ii] Was it necessary for the First Respondent to file an answering affidavit?:-

[12] The question arises as to whether it was correct of the First Respondent not to file any answering affidavit but to raise prescription in heads of argument. It was contended by Adv Swart that it was not necessary to file an answering affidavit as none of the facts are disputed. The only issue that is raised as a defence is that Applicant’s claim had prescribed. He submitted that the heads of argument is a relevant document that is filed.

[13] In the case of Rand Staple-Machine Leasing v I.C.I. (SA) Ltd 1977 (3) SA 199 (W) Viljoen J stated the following on page 201 H – 202 A:-

“I do not agree with Mr Kuny that the interlocutory motion proceedings initiated by a party who wishes to amend his pleadings are such proceedings as are envisaged by sec 17 (2) of Act 68 of 1969. The litigant who invokes prescription is invariably the defendant or the defendant in reconvention in trial proceedings or the respondent in motion proceedings and the document to be filed by him of record in the trial proceedings is his plea or plea in reconvention or his opposing affidavit in motion proceedings.”

(My underlining.)

I am in full agreement with this dictum of Viljoen J.

[14] In Heeriah and Others v Ramkissoon 1955 (3) SA 219 N Milne J states the following on page 225 G – 226 A:-

“The question of prescription was not raised by the defendants in their plea, nor was any application made to the Magistrate or to this court to amend the plea so as to refer to it. I mention this because it is provided for in sec 14 of Act 18 of 1943, as follows:- ‘A party to a suit who raises prescription shall do so in the pleadings: Provided that the court may allow prescription to be raised at any stage in the proceedings.’

I think that the requirement that a party to a suit who raises prescription shall do so in the pleadings, is peremptory in this sense that the court will not hold a claim made before it to be prescribed by extinctive prescription unless the prescription is raised in the pleadings, whether in convention or reconvention, though I take it that the word ‘pleadings’ would be extended to cover affidavits if the relevant proceedings were by way of application or cross-application. I think that what was intended by sec 14 was that prescription must be specifically raised in the pleadings (or affidavits, as the case may be) where it is relied upon as rendering unenforceable the claim made by the opposite party.”

(My underlining.)

[15] Though Section 17 (2) refers to “relevant document” and not specifically to “pleadings” as contained in its predecessor (Section 14 of Act 18 of 1943), I am of the view that the “relevant document” is either a plea (special plea) in trial proceedings or an opposing affidavit in motion proceedings.

[16] In my view heads of argument is an aid prepared by counsel or an attorney or a litigant for the convenience of the Court. Heads of argument cannot be regarded as evidence by a party. In my view the way to invoke prescription as envisaged in Section 17 (2) is either by way of a plea (special plea) in trial proceedings or an opposing affidavit in motion proceedings. First Respondent should have filed an opposing affidavit even if the only issue contained therein would have been prescription. By raising the issue in the manner it did, the First Respondent has, in my view, done so in an incorrect manner.

[17] The onus is on the party that alleges that an obligation has been extinguished by prescription to plead and prove the necessary averment in this regard.

See:- Gericke v Sack 1978 (1) SA 821 (A) 827 – 828 C;

Harms Amler’s Precedents of Pleadings 284 - 294;

Head v Du Toit 1932 CPD 287, 292;

Groenewald v Minister van Justisie 1972 (3) SA 596 (O) 600 B-D;

Mulungu v Bowring Barclays & Associates (Pty) Ltd 1990 (3) SA 694 (SWA) 697 B;

De Szabo v Swart 1951 (3) SA 378 (T) 381 G;

Avex Air (Pty) Ltd v Borough of Vryheid (2) 1972 (4) SA 676 (N) at 678;

Dreyer v Tuckers Land & Development Corporation (Pty) Ltd 1981 (1) SA 1219 (T) at 1129 C.

It cannot, in my view, be done in heads of argument.

[18] Adv Swart contended that, because Section 17 (2) provides that prescription can be raised “at any stage of the proceedings” it can even be raised during argument. He based his submission on the strength of what occurred in the matter of Cassim v Kadir 1962 (2) SA 473 (N).

[19] The Cassim-case (supra) is however distinguishable from the present case. In that case, after the Plaintiff had closed its case during trial and after some evidence was led by the Defendant, the Defendant applied for leave to amend the plea to incorporate a plea of prescription. The amendment was unopposed and the issue of prescription was argued by consent between the parties.

[20] The procedure followed in the Cassim-case (supra), was one of convenience. Plaintiff’s claims were dismissed on the ground that they had become prescribed.

[21] What is of importance in the Cassim-case (supra) is not so much the stage at which prescription was raised but the manner in which it was done. Though prescription can be raised at any stage, even during argument, it must be done in the proper manner. In this matter however, no application was made on the papers (affidavit) to raise prescription as a defence.

[D] Conclusion:-

[22] I am of the view that prescription was not properly raised as a defence seeing that no facts were placed before this Court by way of an opposing affidavit. The Court cannot on its own motion take notice of prescription. First Respondent who wishes to invoke prescription as a defence should have done so in an opposing affidavit as a relevant document, and not in heads of argument.

Order:-

In my view, the Applicant is entitled to the relief claimed.

Consequently, an order is made in the following terms:-

[1] It is ordered that the pension monies in the amount of

R336 589-67 (three hundred and thirty six thousand five hundred and eight nine rand and sixty seven cents), due and payable to First Respondent by the Second Respondent, be paid over to the Applicant by the Second Respondent within 14 (fourteen) days from the date of this judgment.

[2] First Respondent is ordered to pay the costs of this application.

R D HENDRICKS

JUDGE OF THE HIGH COURT

ATTORNEYS FOR THE APPLICANT: The State Attorney

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