THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable

Case No: 1319/2017
In the matter between

GEOFFREY COOK
APPLICANT

and

MURRAY MORRISON
FIRST RESPONDENT
SEABUSH INVESTMENTS (PTY) LTD
SECOND RESPONDENT

Neutral citation:
Cook v Morrison (1319/2017) [2019] ZASCA 08 (8 March
2019)

Coram:          Lewis, Leach, Saldulker and Mathopo JJA and Rogers AJA

Heard:
21 February 2019

Delivered:
8 March 2019

Summary: Appeal – application for special leave – dismissal of – reconsideration
in terms of 17(2)(f) of Superior Courts Act – such to be considered by ‘court’
constituted in terms of s 13(1), not by two judges of appeal who initially
dismissed it.

Appeal – application for special leave – need for special circumstances – applicant
not having reasonable prospects of success – even if he had such, no special
circumstances justifying grant of special leave.
Prescription – meaning of ‘debt’ – such includes obligation by contracting party to
make restitution of money or property following cancellation for repudiation.
Prescription – semble – if prescription adjudicated on assumption that plaintiff’s
pleaded allegations correct, permissible to decide matter with reference to
plaintiff’s primary factual allegations, disregarding alternatives.
Prescription – s 13(1)(d) of Prescription Act – relationship between co-
shareholders in company not one of ‘partnership’.

_____________________________________________________________________

ORDER
_____________________________________________________________________

Application for reconsideration of an order dismissing an application for
special leave to appeal from: Gauteng Local Division of the High Court,
Johannesburg (Meyer, Kathree-Setiloane and Twala JJ) sitting as a full court on
appeal from a decision of the Gauteng Local Division of the High Court,
Johannesburg (Moshidi J) sitting as a court of first instance.

The application for special leave to appeal is dismissed with costs, including the
costs of two counsel where employed.

JUDGMENT

Lewis JA (Leach, Saldulker and Mathopo JJA and Rogers AJA
concurring)

[1] The Superior Courts Act 10 of 2013 introduced a new remedy for
applicants for leave to appeal who are dissatisfied with the outcome of their
applications. Section 17(2)(f) provides that the decision of the majority of the
judges considering an application for leave to appeal shall be final. But there is a
proviso to the subsection that called for interpretation at the hearing of this
application:
‘Provided that the President of the Supreme Court of Appeal may in exceptional circumstances,
whether of his or her own accord or on application filed within one month of the decision, refer
the decision to the court for reconsideration and if necessary, variation.’ (My emphasis.)

[2] The President of the Court, Maya P, referred the application dealt with
below, to a court of five judges for oral argument on reconsideration. She
directed, on 30 January 2018, that the applicant was to file six copies of the record
and that the parties were to comply ‘with all the remaining rules relating to the
prosecution of an appeal’. Members of the court and the applicant were under the
impression that the merits of the appeal were to be argued at the same time as the
argument for reconsideration.
[3] Counsel for the respondent, however, drew our attention to the decision of
Maya P in Hendrik Hough v Sisilana & others [2018] ZASCA 4. Maya P
dismissed the application for reconsideration under s 17(2)(f) in that matter and
gave reasons for her order. In discussing the proviso to the section she said (para
2):
‘It is readily apparent from the ordinary wording of these provisions that the relief provided
relates only to the dismissal of an application for leave to appeal by the Supreme Court of
Appeal. Thus the President of this Court may only direct the appeal judges who considered the
application to revisit their decision and no more.’ (My emphasis.)
[4] The respondents in this matter refer to Maya P’s reasons for decision as
authority for the proposition that the court constituted to hear the application for
reconsideration had no jurisdiction. The proposition is not borne out by the
wording of the proviso to s 17(2)(f), which refers to ‘the court’. That expression
means a court constituted in terms of s 13(1) of the Act. The proposition is also
not supported by the current practice that the issue of reconsideration is heard by a
court properly constituted and not only the two judges who consider the
application in the first instance. And it is contrary to the order issued by Maya P
in this matter.
[5] Accordingly, in so far as Hough suggests that only the two or more judges
who refused the application in chambers may reconsider their decision, it must be

incorrect. It really would make no sense at all for the same judges to reconsider
their own decision. Counsel for the parties agreed that it would be best for the
court, as it had been constituted for the oral hearing, to consider whether special
leave should have been granted. The court did that and judgment on the merits of
the application follows.
_____________
C H Lewis
Judge of Appeal
Rogers AJA (Lewis, Leach, Saldulker and Mathopo JJA concurring)

[6] The applicant, Mr Geoffrey Cook, was the plaintiff in an action instituted
in the Gauteng Local Division of the High Court, Johannesburg. The respondents,
Mr Murray Morrison and Seabush Investments (Pty) Ltd (Seabush), were the first
and fifth defendants. Other defendants were cited but no relief was sought against
them. I shall where appropriate refer to Morrison and Seabush collectively as the
defendants.

[7] The defendants filed a special plea of prescription. They applied in terms
of rule 33(4) for the special plea to be determined first. This application and the
special plea came before Moshidi J who granted the separation and upheld the
special plea. With his leave Cook appealed to a full court. The full court (per
Meyer J, Kathree-Setiloane and Twala JJ concurring) dismissed the appeal. Cook
applied to this court for special leave to appeal. Two judges of appeal dismissed
the application. Still dissatisfied, Cook applied to the President in terms of
s17(2)(f) of the Superior Courts Act 10 of 2013 for a reconsideration of the
dismissal. The President made such an order. Although the President’s order did
not explicitly state that the parties must be ready to argue the appeal if special

leave were granted, the order directed Cook to file six copies of the full record.
Both sides agreed that if we granted special leave we should simultaneously
dispose of the appeal.

[8] The existence of reasonable prospects of success is a necessary but
insufficient precondition for the granting of special leave. Something more, by
way of special circumstances, is needed. These may include that the appeal raises
a substantial point of law; or that the prospects of success are so strong that a
refusal of leave would result in a manifest denial of justice; or that the matter is of
very great importance to the parties or to the public. This is not a closed list
(Westinghouse Brake & Equipment (Pty) Ltd v Bilger Engineering (Pty) Ltd 1986
(2) SA 555 (A) at 564H-565E; Director of Public Prosecutions: Gauteng
Division, Pretoria v Moabi [2017] ZASCA 85; 2017 (2) SACR 384 (SCA) para
21).

[9] The special plea was argued on the assumption that Cook’s allegations in
his particulars of claim were correct. His pleaded case is in summary the
following:
(i)  During February 2003 Cook, Morrison and three other individuals (the second,
third and fourth defendants, to whom I shall refer collectively as the Fox parties)
concluded what the particulars of claim described as an oral joint venture
agreement to create an ecotourism reserve to be known as the Sibuya Game
Reserve. Over the period 2003 to 2007 various portions of adjacent land became
part of the reserve. Two portions were owned by the Fox parties; a third portion
by the seventh defendant, Hesber Impala (Pty) Ltd (Hesber), a company
controlled by the joint venturers; and a fourth portion, added in 2007, by Seabush.
The ecotourism business was owned by Sibuya Game Reserve & Lodge (Pty) Ltd
(SGRL) while the game and various vehicles and equipment pertaining to the
game farming belonged to Salisbury Trading CC (Salisbury).

(ii)  In May 2008 the parties concluded written heads of agreement (heads) which
were to be embodied in a formal contract. In terms of the heads the Fox parties
were to sell their 50 per cent shareholding in SGRL to Cook and Morrison while
the latter were to sell to the Fox parties their 50 per cent share of the game and of
the vehicles and equipment belonging to Salisbury. Cook and Morrison had to pay
the net balance owing to the Fox parties on these transactions by 1 June 2008.
(iii)  In terms of the heads Cook and Morrison would have the sole right to operate
the ecotourism camps in the reserve for 20 years against payment to the Fox
parties of a monthly fee. This was in recognition of the fact that some of the
properties making up the reserve belonged to the Fox parties and to Hesber.
(iv) This agreement was concluded so that the Fox parties could devote
themselves wholly to game farming while Cook and Morrison could devote
themselves wholly to the ecotourism business.
(v)  Although a formal contract was not concluded, effect was given to the heads
so that by 2010 Cook and Morrison owned all the shares in SGRL in equal shares
while the Fox parties owned all the shares in Salisbury. Cook and Morrison also
owned Seabush in equal shares. They each held 25 per cent of the shares in
Hesber, the remaining 50 per cent of Hesber being held by the Fox parties.
(vi)  In August 2010 Cook and Morrison concluded an oral agreement for Cook’s
exit from Seabush and SGRL (the exit agreement). The express terms were that
Cook would sell his shares and claims in Seabush and SGRL to Morrison for one
rand; would resign as a director of both companies; would settle a debt which
Seabush owed Investec; and would pay Morrison R900 000. In return Seabush
would sell to Cook the part of its land on which the ‘Top House’ was situated (the
Top House land). Morrison was to provide Cook with a written contract for the
sale of the Top House land within two days so that Cook could create the
subdivision and have it transferred to himself. These terms were subject to
Morrison’s being able to sell his shares in SGRL to the Fox parties on acceptable
terms.

(vii)  It was an implied or tacit term of the exit agreement that if the Top House
land could not be subdivided and transferred to Cook because of a failure by
Morrison to furnish him with a written contract of sale, Morrison would be
obliged to make restitution of whatever performance he had received.
(viii)  Cook fulfilled his side of the exit agreement by transferring his shares in
Seabush and SGRL to Morrison; resigning as a director of those companies; and
paying the amount required to settle the Investec debt. (The particulars did not
allege that Cook paid Morrison the amount of R900 000.)
(ix)  Morrison in turn reached agreement with the Fox parties for the sale of his
shares in SGRL  to them.
(x)  However, no written contract for the sale of the Top House land to Cook was
concluded because Morrison ‘insisted on inserting additional restrictive terms that
were unacceptable to the plaintiff’. On 8 September 2010 Morrison
‘impermissibly’ sought to ‘sever and cancel part of’ the exit agreement with the
result that, while retaining the benefits of Cook’s performance, he refused to
furnish to Cook a written contract for the sale of the Top House land.
(xi)  Morrison’s conduct amounted to a breach or repudiation of the exit
agreement.

[10] With these factual allegations as prelude, Cook made the following
concluding allegations:
(i)  On 29 September 2010 he accepted Morrison’s breach or repudiation of the
exit agreement and cancelled that agreement. Alternatively, he gave notice in his
particulars of claim that he was cancelling the agreement.
(ii)  He suffered damages because Morrison did not restore him to his former
position. If the damages could not be agreed, he was entitled to a statement and
debatement of account because he was a shareholder of Seabush and SGRL and
thus entitled to the information and because he was a ‘partner in the broader joint
venture known as Sibuya Game Reserve’.

(iii)  The reasonable market values of Seabush, SGRL and the Top House land as
at 2 August 2010 were R12.6 million, R18 million and R4 million respectively.
(iv)  In the alternative to his claim for damages, Cook asserted an equivalent right
on the basis of unjust enrichment.

[11] The prayers for relief (excluding those for interest and costs) were in
summary for orders as follows:
(i)  that Morrison deliver to Cook 50 per cent of the shares in Seabush and SGRL
and reinstate him as a director of those companies, and that Cook be declared to
be the lawful owner of a 50 per cent shareholding in the companies and that their
share registers be rectified accordingly;
(ii)  alternatively, and if such restitution were impossible or impractical, that
Morrison and/or Seabush pay Cook R6.3 million in respect of Seabush and R9
million in respect of SGRL or that they produce statements of account to be
debated so as to establish the value of a half-share of these companies;
(iii)  that Morrison and/or Seabush pay Cook R1 161 984 (the Investec debt he
settled);
(iv)  in the alternative to the above claims, that Morrison pay Cook R6.3 million,
R9 million and R1 161 984 (presumably on the basis of unjust enrichment).
[12] Cook issued summons in April 2014. The special plea alleged that the
debts enforced in the summons prescribed three years after the alleged
cancellation of the exit agreement on 29 September 2010. Cook did not deliver a
replication.
[13] In the courts below and in this court three points were advanced for Cook:
(i) that his claims were not matched by ‘debts’ owed by the defendants within the
meaning of the Prescription Act 68 of 1969 (the Act); (ii) that, if the first point
were rejected, the completion of prescription was delayed in terms of s 13(1)(d) of

the Act because the relationship between the parties was one of partnership;
(iii) that the special plea should not have been adjudicated separately because
evidence was needed to determine the date on which the exit agreement was
cancelled. The courts below rejected these contentions and upheld the special
plea.
First point – no ‘debts’
[14] Cook’s counsel submitted that Morrison’s obligation to restore half of the
shares in Seabush and SGR to him was not a ‘debt’ within the meaning of the
Prescription Act as that term was explained in Makate v Vodacom Ltd [2016]
ZACC 13; 2016 (4) SA 121 (CC). In Makate the Constitutional Court held that
Vodacom’s contractual obligation to commence bona fide negotiations was not a
‘debt’ and that, to the extent that Desai NO v Desai & others 1996 (1) SA 141 (A)
gave ‘debt’ a wide enough meaning to encompass such an obligation, it was
wrongly decided. Both the majority and minority judgments (paras 85 and 187)
made reference to this court’s decision in Electricity Supply Commission v
Stewarts and Lloyds of SA (Pty) Ltd 1981 (3) SA 340 (A) (Escom), where ‘debt’
was said to have the following dictionary meaning:
‘1. Something owed or due: something (as money, goods or service) which one person is under
an obligation to pay or render to another.
2. A liability or obligation to pay or render something; the condition of being so obligated.’
Because Vodacom’s duty to commence negotiations did not answer this
description, it was not a ‘debt’.
[15] Makate did not overrule Escom, and this court has continued to apply the
Escom test (see, eg, Bondev Midrand (Pty) Limited v Puling and Another, Bondev
Midrand (Pty) Limited v Ramokgopa [2017] ZASCA 141; 2017 (6) SA 373 (SCA)
para 21; Brompton Court Body Corporate v Khumalo [2018] ZASCA 27; 2018 (3)
SA 347 (SCA) para 11.) Morrison’s alleged obligation to deliver shares in
Seabush and SGRL to Cook fits comfortably within the Escom definition of

‘something (as money, goods or service) which one person is under an obligation
to pay or render to another’. When a contract is cancelled because of repudiation,
the obligation to make restitution is a personal one resting on the indebted party to
pay money or deliver assets which he received as performance under the contract.
[16] Cook’s counsel submitted that the remedy was not one arising from the
contract but rather a duty of restitution imposed by the law. It is unnecessary to
engage with this semantic distinction. The simple point is that the cancellation
gave rise to a personal obligation to pay or deliver. If counsel’s argument were
correct, it would mean that a personal obligation to pay damages following
cancellation of a contract, or upon the commission of a delict, is not a ‘debt’, an
untenable proposition.
[17] Cook’s counsel referred us to Absa Bank Ltd v Keet [2015] ZASCA 81;
2015 (4) SA 474 (SCA), where this court held that the right of an owner to
recover his property by the rei vindicatio is not matched by a ‘debt’ owed by the
person sued. The difference between that case and the present one is that in a rei
vindicatio the claimant does not seek to enforce a personal obligation owed by the
possessor. He seeks to vindicate an asset of which he is the owner. His right to
recover the asset from whomsoever is in possession of it is an incident of his real
right of ownership, not the result of a personal obligation owed to him by the
possessor (see also eThekwini Municipality v Mounthaven (Pty) Ltd [2017]
ZASCA 129; 2018 (1) SA 384 (SCA) paras 11-16). In the present case, by
contrast, Cook’s allegations disclose that pursuant to the exit agreement he
transferred the shares to Morrison who thereupon became their owner. Morrison’s
obligation to deliver them back to Cook was a personal obligation resting on him
as the counterparty to a contract which Cook had lawfully cancelled. The same
applies to the obligations allegedly resting on Morrison to pay damages or to pay
money by virtue of unjustified enrichment.

Second point - partnership
[18] In regard to s 13(1)(d) of the Act, Cook did not file a replication alleging
that completion of prescription was delayed by virtue of a relationship of
partnership between himself and the defendants. Although the onus rested on the
defendants to establish when prescription began to run, the onus was on the
plaintiff to allege and prove that the completion of prescription was delayed
(Naidoo NO & others v Naidoo & another 2010 (5) SA 514 (KZP) para 16 and
authorities there cited).
[19] I accept that a replication may be unnecessary where the facts giving rise
to the delay in completion of prescription are sufficiently alleged in the creditor’s
particulars of claim. That was not the case here. Indeed, in the light of the
allegations in his particulars of claim I do not think Cook could have filed a non-
excipiable replication based on s 13(1)(d). In order for that provision to apply the
relationship between the creditor and debtor must be one of ‘partners’ and the
debt must be one arising out of the ‘partnership relationship’. The words
‘partners’ and ‘partnership’ have their ordinary common law meaning. The legal
relationship of partnership arises from a contract between two or more persons by
which each agrees to make a contribution (whether in money, property or service)
to a venture to be carried on jointly by them with a view to making a profit and on
the basis of sharing the profits and losses (Lawsa ‘Partnership’ 2 ed vol 19
(replacement volume 2016) paras 263-264).
[20] Where persons agree to conduct a venture through a company and become
co-shareholders, the company is not a ‘partnership’ and the shareholders are not
‘partners’. For some purposes – for example in determining whether it is just and
equitable to wind up a company – the courts have drawn on partnership principles,
sometimes describing the relationship between the shareholders in a small
domestic company as one of ‘quasi-partnership’. This does not mean, however,

that in law the shareholders are partners, a point Lord Wilberforce was at pains to
stress in his seminal judgment in Ebrahim v Westbourne Galleries Ltd [1973] AC
360 (HL) at 379H-380B (see also Apco Africa (Pty) Ltd & another v Apco
Worldwide Inc [2008] ZASCA 64; 2008 (5) SA 615 (SCA) paras 17-18).
[21] Cook’s pleaded allegations concerning the ‘joint venture agreement’
concluded in February 2003 and implemented over the period 2003-2007 do not
cover the essentialia of partnership. His allegations are in fact irreconcilable with
such essentialia. He alleges that the land comprising the reserve continued to
belong to the pre-existing registered owners; that the game, vehicles and
equipment were owned by Salisbury; and the ecotourism business by SGRL. The
expenses and profits of the ecotourism business were those of SGRL. The
expenses and profits of the game-farming business were those of Salisbury. To the
extent that there were expenses and profits from land ownership, they were
incurred and made by the individual land-owning companies. Cook, Morrison and
the Fox parties might have benefited indirectly through dividends received as
shareholders in one or more of the companies but there is no pleaded arrangement
in terms of which the companies and/or shareholders inter se were to conduct a
single venture in which they would share profits and losses.
[22] The ‘joint venture’ was thus a mixture of relationships. Save in relation to
the land, the parties were associated as shareholders of companies. The particulars
of claim make no allegations regarding the relationship between SGRL, Salisbury
and the various persons who owned the portions of land making up the reserve.
Parties may cooperate with each other to enhance their individual businesses.
Such cooperation does not mean they are partners.
[23] Following the implementation of the heads in May 2008, Cook and
Morrison ceased to be associated with the Fox parties save that each continued to

hold 25 per cent of Hesber. The relationship between Cook and Morrison in
relation to the ecotourism business was as 50:50 shareholders of SGRL. In regard
to the portion of land belonging to Seabush, their relationship was again as 50:50
shareholders of that company. SGRL had the right to operate the camps on land
belonging to or controlled by the Fox parties in return for a monthly fee. That was
an ordinary contract for use between SGRL and the Fox parties.
[24] Accordingly, when the exit agreement was concluded in August 2010 the
relationship between Cook and Morrison in connection with the business operated
and property owned by SGRL and Seabush was one of co-shareholding, not
partnership. There was also no partnership between them and the Fox parties. The
exit agreement was merely an arrangement by which the plaintiff would dispose
of his shares in SGRL and Seabush to Morrison and receive a subdivided portion
of land belonging to Seabush.
[25] Cook thus failed to plead allegations disclosing the existence of a
partnership between himself and Morrison. In view of this conclusion it is
unnecessary to decide whether an obligation arising from a contract by which a
partnership is terminated is a debt arising ‘out of the partnership relationship’ for
purposes of s 13(1)(d).
Third point – date of cancellation
[26] Cook’s counsel rightly conceded that if the first point were unsound,
prescription in respect of the ‘debts’ owed by Morrison began to run from the date
on which Cook elected to cancel the exit agreement. If that date was 29
September 2010, the rejection of Cook’s second point would mean that the debts
prescribed about six months before summons was served. To escape this
conclusion Cook’s counsel placed emphasis on the alternative allegation that the
exit agreement was only cancelled when summons was issued. Particularly since

the defendants denied the cancellation of the agreement, a court could only
determine the commencement date of prescription after hearing evidence and
deciding when the agreement was cancelled.
[27] Regarding the defendant’s denial, it is right to add that the defendants
amplified their denial by pleading that Cook was not entitled to cancel the
agreement, Cook himself being the person who was in breach of his obligations.
In the light of this amplification, the defendants were not necessarily disputing
that Cook had purported to cancel the exit agreement on 29 September 2010 but
nothing turns on this.

[28] In the present case the defendants, who denied the existence of any valid
claims on the merits, asked the trial court to adjudicate the special plea of
prescription on the assumption that Cook’s pleaded facts were correct. Where
inconsistent facts are pleaded in the alternative, both facts cannot simultaneously
be assumed to be correct. Although Cook’s counsel resisted the characterisation of
the relevant paragraph of the particulars of claim as comprising a primary and an
alternative allegation, the long-standing conventions of pleading would so regard
it. The first allegation represents the pleader’s primary case, the alternative a
fallback position if he fails on the primary case. If the other party admits the
primary allegation, that disposes of the issue – the alternative falls away. An
admission of the alternative allegation, by contrast, will not do so.

[29] There is thus much to be said for the proposition that when the
prescription of the alleged debts came to be tested on the assumption that Cook’s
allegations were correct, the trial court and full court were entitled, in the absence
of an abandonment by Cook of his primary case, to confine their attention to that
case and to disregard the alternative. The defendants were effectively saying:
‘Although we deny the merits of your claims altogether, we are willing to admit,

for purposes of prescription only, your primary case.’ If the defendants had not
advanced a defence on the merits, had admitted Cook’s primary case and pleaded
only a defence of prescription, Cook could not have escaped the consequences of
his primary case by pointing to the existence of an alternative. I do not see why it
should be different where a plaintiff’s primary case is assumed to be true for
purposes of prescription.

[30] It is, however, unnecessary to express a final opinion on this point. Even if
it were not strictly correct to disregard the alternative, it by no means follows that
an injustice has been done to Cook. Here I digress to considerations relating to
special circumstances rather than prospects of success. First, Cook has not alleged
in his application for special leave that he did not cancel the agreement on 29
September 2010 and that he has thus unjustly been denied the opportunity to run a
case based on a cancellation as at April 2014. Second, an acceptance by Cook that
he only cancelled the agreement in April 2014 would have presented him with
significant difficulties. Although the statement that a party must exercise an
election to cancel within a reasonable time may not be technically accurate, a
lengthy delay in exercising the election may nonetheless, and usually will, lead to
a conclusion that the party waived the right, ie elected not to cancel (Mahabeer v
Sharma NO & another 1985 (3) SA 729 (A) at 736D-I). In the present case, Cook
would need to explain a delay of three and a half years. Third, it is doubtful that a
party may cancel an agreement for non-performance of obligations which have
prescribed by the time the election is exercised. A cancellation as at April 2014
might thus simply attract a different plea of prescription, namely that the
obligations, the non-performance of which constituted the breach or repudiation,
had prescribed before Cook elected to cancel.

[31] To sum up. There are no reasonable prospects of success in an appeal
challenging the finding that, on Cook’s primary case, the debts sought to be

enforced prescribed before summons was served. While there is an argument to be
made that the courts below erred in not taking into account the alternative case,
Cook’s prospects of success on that point case can at best be described as modest.
In assessing whether special circumstances exist, we may take into account the
absence of any evidence in the application for special leave to suggest that the
alternative case represents a realistic and plausible one rather than a mere
theoretical possibility.

[32] The proposed appeal does not raise a substantial point of law. The
characterisation of the defendants’ alleged obligations as ‘debts’ does not fall
within any penumbra of uncertainty which Makate might be thought to have
created. The requirements for the existence of a partnership are trite, their
application to the facts alleged in the particulars of claim straightforward.

[33] Apart from prospects of success, which Cook in his application
optimistically described as ‘extremely good’, the only other factor relating to
special circumstances which he alleged was that it would be ‘a terrible injustice’
to him if he were not permitted to pursue his claims; Morrison’s behaviour had
been ‘unconscionable’ – he had ‘retained everything for himself and left me with
nothing’. I accept that Cook feels aggrieved. Most cases are regarded by the
litigants themselves as very important. This is not in itself a special circumstance.
Something beyond the natural interest which every litigant has in his case is
needed. Although Cook’s monetary claims are substantial, we know nothing of
their relative importance to him.

[34] While it may seem unjust (on Cook’s case) for the defendants to have been
substantially benefited without making the promised counter-performance, this is
a result inherent in the law of prescription. The fact is that Cook had three years,
as from 29 September 2010, to launch proceedings. We do not know why he

waited three and a half years. The law tolerates the extinction of debts through
prescription because of the public interest in finality.

[35] Accordingly, to any limited extent that Cook’s prospects of success might
rise to the level of being ‘reasonable’, there are no special circumstances which
make it just to permit a second appeal.

[36] The following order is made:
The application for special leave to appeal is dismissed with costs, including the
costs of two counsel where employed.

____________________
O L Rogers
Acting Judge of Appeal

APPEARANCES
For Applicant
J J Gauntlett QC SC (with him K Hopkins)

Instructed by

Dentons South Africa, Sandton

Claude Reid, Bloemfontein

For Respondents
R Stockwell SC (with him A J Venter)

Instructed by

Murray van Rensburg Inc, Johannesburg

E G Cooper Majiedt Inc, Bloemfontein