JUDGMENT. 1 I am required to decide the disputes disclosed by the defendant's. special plea of prescription raised in defence to the plaintiffs claim.

Transcription

1 IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, PRETORIA CASE NO: 5664/2011 In the matter between: EDWARD THOMPSON Plaintiff and CITY OF TSHWANE METROPOLITAN MUNICIPALITY Defendant JUDGMENT Tuchten J: 1 I am required to decide the disputes disclosed by the defendant's special plea of prescription raised in defence to the plaintiffs claim. The plaintiff claims to have driven his motor vehicle into a pothole on Stormvoel Road (the road) at about 03h30 on 21 June 2010 and to have suffered severe injuries as a result of the accident. He decided to sue the organ of state which he believed had the responsibility of maintaining the road. He claims that the responsible organ neglected to maintain the road properly. 2 The place where the alleged incident took place was just west of

2 where the road intersects with Hans Coverdale Road in Koedoespoort, Pretoria. The alleged scene therefore falls within the geographical area of jurisdiction of the defendant (the Municipality). But for reasons not explained, the plaintiff instituted his action against the province of Gauteng (the Province) and not the Municipality. In the action against the Province, the plaintiff claimed monetary damages for the injuries allegedly caused by the accident. 3 The Province denied in its plea that it was responsible for the maintenance of the road. The Province decided to make its denial even clearer; so by notice of intention to amend dated 20 November 2012, it gave notice that it would raise a special plea of misjoinder and pleaded specifically that the road was not under the control of the Province but under the control of the Municipality. The Province's attorney wrote a letter dated 21 November 2012 to the plaintiff s attorney in which he pertinently drew attention to the nub of the amendment and invited the plaintiff to withdraw his action against the Province. 4 The plaintiff s attorney seems to have appreciated the force of the argument raised by the Province s attorney. But instead of withdrawing the action against the Province and suing the Municipality, he embarked on a tortuous campaign which he no doubt hoped would put the plaintiff on the right procedural track. 5 By notice of motion dated 9 May 2013, the plaintiff brought an interlocutory application in which he applied for an order to join the Municipality as second defendant in the action and to direct that all

3 pleadings filed of record be served in the Municipality within 10 days of the order in question, with costs reserved. 6 The application for joinder was served on the Municipality by the sheriff and was granted as prayed on 18 June The Municipality gave notice of intention to defend the action. On 23 July 2013 the plaintiff served on the Municipality a notice of amendment. The effect of this notice of amendment was to convert the action against the Province into an action against the Municipality. The Municipality did not object to the amendment. 7 By notice dated 12 July 2013, the plaintiff then withdrew its action against the Province. On 26 July 2013, the plaintiff delivered, by serving and filing, his amended pages in which he alleged, as I have said, that the Municipality was liable for the damages suffered by the plaintiff. 8 By notice of motion dated 21 January 2014, the plaintiff brought yet another interlocutory application under the present case number in which the plaintiff sought condonation for the late service on the Municipality of a notice under s 3(4)(a) of the Institution of Legal Proceedings against Certain Organs of State Act 1 and certain consequential relief. 9 In paragraph 4 of the plaintiff's affidavit in support of the condonation application, the plaintiff said that the sole purpose of the condonation 1 40 of2002

4 application was to get "consent from the [Municipality] as per Section 3(4)(a read with Section 4(b)(i)-(iii) of the... Act." The plaintiff pointed out that a court was empowered to grant condonation if satisfied that the debt had not been extinguished by prescription, good cause existed for the failure by the creditor and the organ of state was not unreasonably prejudiced by the failure. The plaintiff then said, in relation to prescription: This matter has not become prescribed seeing as the accident occurred on the 21st of June 2010 and Summons was issued on the 01st of February 2011, served on the [Municipality} on the 13th April 2011 and joined the [Municipality]to this action on or about 18 June 2013, before the three year time for prescription Condonation was granted as prayed by this court on 13 March Counsel for the defendant accepted during argument that the delivery of these amended pages alleging the liability of the Municipality for the damages claimed by the plaintiff was the process whereby the plaintiff claimed payment of the debt said to be owed to him by the Municipality. The question, however, is whether the delivery of the amended pages effectively interrupted prescription. Peter Taylor & Associates v Bell Estates (Pty) Ltd and Another 3 is authority binding on me that service of an application to join a defendant is not, by itself, a process whereby the creditor claims payment of the debt. That was accepted on both sides of the 2 The reasoning in this paragraph is wrong. See the Peter Taylor case, infra.

5 argument, so the crucial date is 26 July 2013, when, as I have said, the plaintiff delivered its amended pages. That date was three years, one month and five calendar days after the date of the accident. 12 Under s 11(d) of the Prescription Act, 4 the applicable period of prescription in this case is three years. In a special plea, the Municipality pleaded prescription as a defence. The Municipality specifically pleaded that the debt, for prescription purposes, became due on the date of the alleged accident. That case was not pursued during argument. Instead, the Municipality relied on its case in this regard pleaded in the alternative: that... the plaintiff could, with the exercise of reasonable care, have acquired knowledge of the defendant's identity and the facts from which the debt arose by 25 July July 2010 is the day before the plaintiffs amended pages were delivered. The consequence of this allegation is that the Municipality had to prove that the plaintiff, by exercising reasonable care, could have acquired knowledge that the Municipality was his Prescription Act debtor by 25 July 2010 at the latest. 14 The plaintiff replicated to the Municipality's special plea. The replication raised wo answers to the prescription defence: firstly, that the prescription defence had already been considered or ruled upon or adjudicated upon in the plaintiffs favour by the court which granted the condonation; and, secondly and in the alternative, that the SA 312 SCA 4 68 of 1969

6 plaintiff, having exercised reasonable care, had only acquired knowledge of the identity of the Municipality as the plaintiffs debtor on about 21 November I do not think that the res judicata or issue estoppel answer is a good one but I need not decide the point and shall merely assume against the plaintiff that the answer is bad. I shall proceed immediately to the alternative answer to the prescription defence. 16 The allegations which I have quoted or summarised in paragraphs 12 and 14 above raised the question when the debt claimed by the plaintiff became due. This is because s 12(1) of the Prescription Act provides: Subject to the provisions of subsections (2), (3), and (4), prescription shall commence to run as soon as the debt is due. 17 Section 12(3) is directly relevant to the present enquiry: A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care. 18 The question is therefore when the plaintiff could, by the exercise of reasonable care, have acquired knowledge that the Municipality was his debtor. That is because it is accepted by counsel for the

7 Municipality that it is only on this date that the debt became due and that the three year period prescribed by s 11(d) began to run. 19 Much emphasis was laid by counsel for the Municipality on what was submitted to be the negligent manner in which the plaintiff, or rather his attorney, went about the case. I need not deal with these submissions because as counsel correctly submitted, the enquiry is an objective one. Once it is accepted, as it is in this case, that the plaintiff himself did not know until late in the day that he should have sued the Municipality rather than the Province, then the question is when a reasonable person in the position of the plaintiff ought to have become aware that the Municipality was his true debtor. That the plaintiff, or his attorney, could have brought his action against the Municipality within three years of the accident and thereby avoided the present prescription inquiry, is irrelevant. 20 Counsel for the Municipality correctly accepted that the Municipality bore the onus to prove the date upon which the debt had become due. In an attempt to discharge this onus, the Municipality called two of its officials to give evidence. The first witness was Mr Havenga, the manager of the region tasked with maintaining the municipal roads within that region. The road fell within Mr Havenga's region. The second witness was Mr Molekoa, the head of the unit responsible for dealing with delictual claims against the Municipality. The plaintiff closed his case without calling any witnesses 21 Both Mr Havenga and Mr Molekoa impressed me as honest and

8 reliable witnesses. They both appeared to me to be conscientious public servants, conscious of their duties toward the Municipality and the public. 22 It appeared from their evidence that the question of which organ of state owns, and therefore bears responsibility for, the maintenance of, roads within the geographical jurisdiction of the Municipality is not entirely simple and straightforward. There are, I was told, at least four relevant categories of roads: national, provincial, municipal and private. As a general rule, roads with an M code are municipal roads and are the responsibility of and owned by the Municipality. In a development where roads are created but not transferred to the Municipality, those roads so created would be private. National roads are owned and maintained by Sanral, the South African National Roads Association Limited. Kroutes (conventional double lane roads) and R roads (eg the R55) are generally owned by the Province. 23 But that is not always the case. It may be that part of an M road is incorporated into a K route but retains its M code number. Then it could belong to the Province. Sanral is obliged to maintain an alternative, non-tolled route in addition to its toll route to a specific destination. Then the maintenance of the designated alternative route becomes the responsibility of Sanral while retaining its M, K or R coding. 24 So the prudent would-be litigant will not assume, because a road is

9 geographically within Tshwane, that the road is owned by Tshwane. He will make enquiries to establish the position. The repositories of this rather arcane knowledge are the organs of state themselves. Private individuals, such as engineers will also acquire such knowledge but the most sensible way to establish the ownership of a road is to ask the authorities themselves. This can be done by physically going to an office and asking for the information. But then you run the risk that the clerk with whom you deal inadvertently gives incorrect information and you do not have a record of the enquiry. 25 So by far the best way for a prospective litigant to establish the ownership of a road is to address a written enquiry to an organ of state. In the case of the Municipality, there is a well developed bureaucratic system whereby such enquiries are received, processed and answered. 26 The only example given in the evidence of such an enquiry was one handled by Mr Havenga himself in relation to the very road at issue in this case. There is no reason, however, to think that the manner in which this enquiry was dealt with is significantly different from the norm. 27 On 7 February 2013, Mr Havenga sent an to Ms Buitendag, the deputy director: land acquisition and design support in the Gauteng government. Mr Havenga asked in the if Ms Buitendag could confirm the status of the road from the N1 to Watloo Road. Ms Buitendag responded the following day by that the road was

10 under the control of the Municipality. 28 Mr Havenga's evidence was that he had been sure that the road was the responsibility of the Municipality but that the system in place required that the Province be consulted in order to confirm that Mr Havenga's impression was correct. In fact the road was identified for future development as a K route (K16). Mr Havenga explained that such development might never take place but until that time, although the road was the responsibility of the Municipality, the Province had rights in relation to development within the road reserve, ie development potentially prejudicial to the potential K route. 29 On 25 March 2013, Mr Havenga copied his to Ms Buitendag and Ms Buitendag's reply to Mr De Villiers of the Municipality's legal department. The string in which these s were located led Mr Havenga to conclude that the initial enquiry to him, Mr Havenga, was precipitated by an enquiry as to the status of the road submitted to the Municipality's legal department, perhaps by a member of the public. 30 For reasons which Mr Havenga could not explain, Mr Havenga had taken more than a month and a half to complete the process probably initiated by the initial enquiry to the Municipality's legal department. 31 The significance of this evidence, to my mind, is that it shows that a

11 person making such an enquiry might receive a reply at least as late as a month and a half after the initial enquiry to the Municipality's legal department. 32 Rather surprisingly, there was no evidence that the plaintiff was so incapacitated by his injuries that he was precluded for a period by the nature of his injuries from placing the matter in the hands of his attorney. I must therefore evaluate his case as if he had been in a good physical and mental condition immediately after the accident. On that basis, which is more than fair to the Municipality, a reasonable person would have needed at least a week to arrange a consultation with his attorney and a reasonable attorney would have formulated and forward to the Municipality an appropriate enquiry within another week. Allowing the Municipality a month and a half to reply to the notional reasonable attorney, that would have meant that the Prescription Act creditor would have been expected, if he had gone the route of asking the Municipality to advise on the status of the road, to have acquired the requisite factual knowledge contemplated by s 12(4) within no less than two months after the accident. 33 But is this the right enquiry? After all, there was no evidence from the plaintiff that he or his attorney had made any enquiries at all. The answer to this is that in the absence of actual knowledge (which counsel for the plaintiff conceded he had not established) the standard is that of the person exercising reasonable care. At this level, it matters not whether the plaintiff himself exercised

12 extraordinary diligence or displayed striking ineptitude in acquiring the requisite knowledge. The test is an objective one So I conclude that the enquiry I have formulated is the right one. But what about the alternative methods by which the plaintiff might have acquired the requisite knowledge? The stores of information available to the reasonable person are, broadly, reference materials such as internet resources and maps and those accessed through personal enquiries and written enquiries. The problem with reference materials accessed directly is that they may be wrong or out of date. The people who are likely to have up to date sources of information are, again broadly, government officials and members of the private sector. Interactive enquiry directed at another person can be oral or written. The problem with oral enquiry is that it provides no record and may be difficult to prove if there is later a dispute. An enquiry directed at a member of the private sector carries the risk that the information given might be wrong, resulting in the very problem that faced the plaintiff when he sued the wrong person. 35 This all leads me to conclude that a written enquiry to an organ of state burdened at some level with the duty to maintain roads in which it is explained that the enquirer needs the information for a possible court case and implies that the enquiry should therefore be taken seriously, is the 5 Leketi v T/pdi NO and Others [2010] 3 All SA 519 SCA

13 appropriate step a would-be plaintiff should take to establish the relevant fact from which this kind of debt arises. 36 From this it follows that the defendant has not proved that the plaintiff, by exercising reasonable care, would have established the identity of his Prescription Act debtor three years or more before the amended pages were delivered. I need not and do not find that this conclusion will set a standard for other plaintiffs who need to establish the identity of an owner of a road. I need not and do not, indeed cannot find that two months is the period applicable in other factual matrices. My finding is thus case specific. 37 The plea of prescription must fail. There is no reason why costs should not follow the result. I make the following order: The defendant's special plea of prescription is dismissed with costs. NB Tuchten Judge of the High Court 10 September 2018 ThompsonTshwane