Flynote: CIVIL PROCEDURE Special plea of prescription STATUTE The – – – Prescription Act 68 of 1969 acquisitive prescription meaning of the – – word ‘debt’ as employed in the Prescription Act. Summary: The plaintiff sued the defendant for an order compelling her to sign documents of transfer of landed property that the plaintiff’s husband had purchased from the defendant in around 1996. In addition to pleading over on the merits, the defendant raised a special plea of prescription, alleging that the for, arose more than 20 ‘debt’ sued years ago and that the claim had prescribed three years from the purchase of plaintiff’s the property. It was argued that the plaintiff ought to be non-suited therefor. Held the plaintiff did not have any right to acquisitive prescription in this matter as she – had no title to the property in question. Held that the claim was not a within the proper meaning to be ascribed – plaintiff’s ‘debt’ to the word. It was further held that the word debt must be given a narrow meaning, related to payment of something that is owed or due such as money, goods or services. Held further that the meaning of debt as extended in case law, ostensibly following the – decision of the South African case of Desai v Rajendra Desai, to include an obligation to do something or to refrain from doing something was an incorrect reading of the judgment in Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd. Held further that the application of a wide meaning to the word in cases of – ‘debt’ prescription has the potential to exclude the rights of persons to access courts, hence the need to apply a restricted meaning. The special plea was accordingly dismissed with costs. ORDER
Flynote: CIVIL PROCEDURE – Special plea of prescription – STATUTE – The Prescription Act 68 of 1969 – acquisitive prescription – meaning of the word ‘debt’ as employed in the Prescription Act. Summary: The plaintiff sued the defendant for an order compelling her to sign documents of transfer of landed property that the plaintiff’s husband had purchased from the defendant in around 1996. In addition to pleading over on the merits, the defendant raised a special plea of prescription, alleging that the ‘debt’ sued for, arose more than 20 years ago and that the plaintiff’s claim had prescribed three years from the purchase of the property. It was argued that the plaintiff ought to be non-suited therefor. Held – the plaintiff did not have any right to acquisitive prescription in this matter as she had no title to the property in question. Held – that the plaintiff’s claim was not a ‘debt’ within the proper meaning to be ascribed to the word. It was further held that the word debt must be given a narrow meaning, related to payment of something that is owed or due such as money, goods or services. Held further – that the meaning of debt as extended in case law, ostensibly following the decision of the South African case of Desai v Rajendra Desai, to include an obligation to do something or to refrain from doing something was an incorrect reading of the judgment in Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd. Held further – that the application of a wide meaning to the word ‘debt’ in cases of prescription has the potential to exclude the rights of persons to access courts, hence the need to apply a restricted meaning. The special plea was accordingly dismissed with costs. ORDER