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IN THE HIGH COURT OF SOUTH AFRICA

(EASTERN CAPE DIVISION) CASE NO: 408/2001

In the matter between

M. MAKOBA

vs

J.J. VAN TONDER

JUDGMENT

PICKERING J:

This is an appeal against the decision of the magistrate, Graaff Reinet, dismissing a special plea of prescription.

On 27 October 1995, on the road between Graaff Reinet and Jansenville, a collision occurred between plaintiff's motor vehicle CEB 4053 and a motor vehicle driven at the time by one Ivan Makoba. In consequence of the collision the said Makoba (hereinafter referred to as "the deceased") was killed and plaintiff's motor vehicle was damaged. On 8 May 1996 plaintiff lodged a claim against the estate of the deceased for payment of damages in an amount of R89 030,84 in respect of the damage occasioned to his vehicle in the collision. On 16 May 1996 Martha Makoba, the widow of the deceased, was duly appointed as executrix under letter of executorship No 4028/95/2. On 7 November 1996 Mrs. Makoba appointed Legatus Trust (Pty) Ltd ("Legatus Trust") under special power of attorney to administer the deceased's estate on her behalf.

On 7 March 1997 Legatus Trust addressed a "Report to Creditors" in terms of s 34 of the Administration of Estates Act No 66 of 1965. In this report the following is stated:

“We have been appointed as Executors by the Master of the Supreme Court, Eastern Cape Division by virtue of Letters of Executorship number 4028/95/2 dated 16 May 1996 in favour of Ronald Hermann Meyeridicks in his capacity as nominee of Legatus Trust (Pty) Ltd, to attend to the finalisation of the above estate."

The report further advised creditors that the estate was insolvent.

It is common cause that attempts were thereafter made to settle plaintiff's claim. These were unsuccessful. Eventually, on 22 October 1998, plaintiff issued summons against Legatus Trust (Pty) Ltd as the sole defendant, citing it in "hul hoedanigheid as eksekuteurs van wyle Ivan Solomon Makoba, uit hoofde van eksekuteurs brief 4028/95/2 gedateer 16 Mei 1996 uitgereik deur die Meester van die Hoe Hof, Oos Kaap." In the summons plaintiff now claimed damages in the amount of R57286,84. On 26 October 1998 plaintiff was advised in writing by Legatus Trust that its claim against the estate was formally rejected.

On 17 December 1998 Legatus Trust filed a plea to plaintiff's particulars of claim in which it denied that it was the executor of the deceased estate. At some stage hereafter plaintiff ascertained that Mrs. Makoba was in fact the duly appointed executrix. Accordingly, on 13 April 1999, plaintiff filed a notice of amendment in terms whereof he indicated his intention to apply for an amendment to his particulars of claim in the following terms:

(1) Deur die deurhaling van paragraaf 2 daarvan en die vervanging daarvan met die volgende:

"Die verweerder is MARTHA MAKOBA, 'n volwasse vrou van Milfordstraat 41, Kaapstad, wat hierin gesiteer en gedagvaar word in haar hoedanigheid as eksekuteur van boedel wyle IVAN SOLOMAN MAKOBA, uit hoofde van eksekuteurs brief no 4028/95/2 gedateer 16 Mei 1996 uitgereik deur die Meester van die Hoe Hof, Grahamstad."

(2) Deur die deurhaling van die woorde "LEGATOS TRUST (EDMS) BPK N.O." waar dit ook al voorkom, en die vervanging daarvan met die woorde "MARTHA MAKOBA N.O."

Legatus Trust objected to the proposed amendment on the basis that Mrs. Makoba was not a party to the action and that she could accordingly not be substituted as defendant in the place of Legatus Trust. This objection obviously gave plaintiff some food for thought because it was only in April 2000, after an opposed application by plaintiff for the postponement of the trial, that plaintiff filed an application for the joinder of Mrs. Makoba to the action as second defendant. I should mention that the transcript of the application for a postponement has been included in the record of appeal and runs from pages 56 to 87. It was obviously entirely unnecessary to include these pages in the record.

There was no objection to the application for joinder and Mrs. Makoba was thereafter joined as second defendant.

On 6 November 2000 plaintiff filed a notice of intention to amend its particulars of claim to reflect the fact that Legatus Trust was now sued as first defendant and Mrs. Makoba as second defendant. This amendment was opposed by both defendants on the basis that it introduced a new cause of action which had prescribed. In my view the opposition to the application for this amendment was ill conceived. Once second defendant had been joined as such, the pleadings obviously had to be amended in order to reflect this position. The amendment followed thereon as a matter of course. The arguments addressed to the Court in opposition to the amendment should have been addressed in opposition to the joinder of Mrs. Makoba. That joinder, however, was, as I have said, not opposed.

In the result a great deal of time and expense was wasted, to say nothing of the fact that once again the record on appeal has been unnecessarily burdened by the inclusion of pages of transcript which are now entirely irrelevant to the decision of this appeal.

The amendment sought was granted by the Magistrate whereafter Mrs. Makoba, as second defendant, filed, together with her plea over, a special plea in which she alleged that plaintiff's claim against her had prescribed. The relevant portion thereof reads as follows:

"3. Eiser se eis is (sic) teen tweede verweerder het opeisbaar geword op

3.1 27 October 1995;

3.2 In die alternatief, op 16 Mei 1996, synde die datum waarop tweede verweerder aangestel is deur die Meester van die Hooggeregshof to Grahamstad, kragtens eksekuteursbrief no 4028/95/2, as die eksekutriese in die boedel van die oorledene (die "boedel").

4.1 Op of omtrent 8 Mei 1996 het eiser `n eis teen tweede verweerder ingedien vir die verhaal van skade aan eiser se voertuig met registrasie CEB 4053, welke skade na bewering spruit uit die botsing.

4.2 Die eis is ingedien by eerste verweerder, synde tweede verweerder se behoorlik gemagtigde agent belas met die bereddering van die boedel namens tweede verweerder.

5. Op of omtrent 26 Oktober 1998 het tweede verweerder eiser se voormelde eis formeel van die hand gewys.

6.1 Die toepaslike verjaringstermyn ten opsigte van eiser se eis teen tweede verweerderes sou, as dit nie vir die bepalings van Artikel 13 (1)(g), saamgelees met Artikel 13 (1)(i) van die Verjaringswet, Wet 68 van 1969, was nie, op 28 Oktober 1998, of in die alternatief op 17 Mei 1999 voltooi gewees het.

6.2 Die gemelde datums, naamlik 28 Oktober 1998 en 17 Mei 1999, is binne een jaar na 26 Oktober 1998.

7. In die vooropstelling het eiser se eis teen tweede verweerder op 27 Oktober 1999 verjaar, synde een jaar na 26 Oktober 1998.

8. Tweede verweerder is eers op 9 Mei 2000 deur eiser as party tot die geding gevoeg."

Legatus Trust filed an amended plea again denying that it was the executor of the estate. In a "reply" thereto plaintiff pleaded that "first defendant represented to plaintiff that it was indeed the executor as was set out in plaintiff's particulars of claim, that plaintiff acted thereupon to its detriment and that first defendant is stopped (sic) from relying on the tone (sic) facts and is held liable as if is (sic) representation were true."

Eventually, on 21 November 2000, argument on the second defendant's special plea was heard and the special plea was dismissed by the magistrate, hence the present appeal by Mrs. Makoba. At the commencement of the proceedings on 21 November 2000 it was placed on record that plaintiff was withdrawing his action against Legatus Trust. This being so it is surprising to say the least that, together with Mrs. Makoba, Legatus Trust noted an appeal against the magistrate's judgment and that it was only on 20 February 2002 that Legatus Trust withdrew such appeal.

There is one further aspect which must be mentioned before I turn to consider the merits of the appeal. The magistrate's judgment against which the present appeal has been noted appears twice in the record, once at pages 46 - 50 and again at pages 153 - 159. This is a quite unacceptable duplication and a running up of unnecessary costs.

It was only on 22 February 2002 that Mrs. Makoba's attorneys of record, who were not the attorneys responsible for the preparation of the appeal record and to whom no fault can be apportioned in this regard, advised the Registrar that the appeal record was burdened with irrelevant pages and that the best that they could do at this stage was to "get consent from the respondent to advise the presiding Judges about the relevant pages to this appeal."

Unfortunately this communication reached the court too late to be of assistance to us.

It has been stated time and time again by the Courts that in preparing a record for appeal the appellant must restrict the record to what is necessary (Government of the Republic of South Africa v Maskam Boukontrakteurs (Edms) Bpk 1984 (1) SA 680 (A) at 692 - 693; Commissioner for Inland Revenue v Manganese Metal Co (Pty) Ltd 1996 (3) SA 591 (T) at 616 A - F.) It unfortunately appears that in this matter the appellant's attorney tasked with the proper preparation of the record did not properly apply his mind thereto.

I turn now to consider the merits of the matter. I will, for the sake of convenience, refer hereinafter to appellant as defendant and respondent as plaintiff.

Defendant's case was, in essence, that her joinder (as second defendant) in the action amounted to the institution of a new cause of action against her and that such action had prescribed. The magistrate, in dismissing the special plea, relied, inter alia, upon the provisions of Section 13 (1)(g) and (i) of the Prescription Act no 68 of 1969 ("The Act"). He found, with reference to Kilroe­Daley v Barclays National Bank Ltd [1984] ZASCA 90; 1984 (4) SA 609 (A) that the impediment referred to therein ceased to exist when the plaintiff's claim against the deceased estate was rejected on 26 October 1998. Although this finding was not attacked on appeal by the defendant, Mrs. Potgieter, who appeared at the hearing of the appeal for plaintiff, submitted that the magistrate had erred in this regard and that the "impediment" would in fact only cease to exist once the Master of the High Court had finally rejected the plaintiff's claim. As the Master had not yet done so the impediment was still in existence and the plaintiff's claim had therefore not yet become prescribed. Because this point was only raised for the first time during the course of argument Mr. Koekemoer, who appeared for defendant, was somewhat taken by surprise and was obviously not in a position to offer any comprehensive argument in response thereto. In the light of this, and in the light of the view which I in any event take of the merits of the appeal as a whole, it does not seem to me in the circumstances to be desirable or necessary to determine this issue.

The magistrate found further that plaintiff only became aware of the identity of the actual executor of the estate, namely the defendant, when Legatus Trust filed its plea on 8 December 1998 and that plaintiff's claim therefore only became prescribed on 7 December 2001. I should mention that Legatus Trust in fact filed its plea on 19 December 1998 and that, on the magistrate's view of the matter the claim therefore only became prescribed on 18 December 2001.

It was argued before the magistrate on behalf of defendant, with reference to the provisions of s 12 (3) of the Act, that had the plaintiff exercised reasonable care he could have acquired knowledge of the identity of the correct executor prior to the institution by him of his action against Legatus Trust. This argument was rejected by the magistrate.

At the hearing of the appeal Mrs. Potgieter, apart from supporting the judgment of the magistrate with regard to the application of the provisions of s 12 (3), raised two further points. The first can quickly be disposed of. In this regard she submitted that the provisions of s 12 (2) of the Act were applicable to the matter. S 12 (2) provides:

"If the debtor willfully prevents the creditor from coming to know of the existence of the debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt."

Mrs. Potgieter submitted that knowledge of the "existence of the debt" included knowledge of the identity of the actual debtor and that plaintiff could not be deemed to have known of the existence of the debt before he had knowledge of the identity of the actual debtor.

In my view there is no merit in this submission. Obviously, as a matter of logic, if the creditor is unaware of the existence of the debt he will also be unaware of the identity of the debtor. As far as the creditor is concerned there is no debtor because there is no debt. In my view, however, s 12 (2) is clearly not intended to apply to the situation where the creditor is aware of the existence of the debt, as in the present matter. That situation is catered for by the provisions of s 12 (3). The case of Jacobs v Adonis 1996 (4) SA 246 (C) relied upon by Mrs. Potgieter is, in my view, clearly distinguishable on the facts in this regard.

The second point taken by Mrs. Potgieter was that from the outset the citation of Legatus Trust as the executor of the deceased estate was a case of misdescription and that the subsequent joinder of defendant and the amendment of the particulars of claim to reflect the fact that she was the executrix sought merely to rectify this misdescription and did not involve the substitution of one persona for another as defendant. In this regard Mrs. Potgieter referred to Boland Bank Ltd v Roup Wacks, Kaminer and Kriger 1989 (3) SA 912 (C). In that matter the plaintiff, Boland Bank Ltd, purporting to act in its capacity as executor in a deceased estate, instituted action for payment by defendant of an amount allegedly due to the deceased estate. Boland Bank then sought to amend its summons by substituting, for the description of plaintiff, one Jordaan as the nominee of Boland Bank in his capacity as executor as the deceased estate. The application for an amendment was dismissed by the magistrate and it was argued on appeal that the magistrate's judgment was correct inasmuch as Boland Bank and Jordaan were two separate and distinct personae; that this was not merely a case of misdescription; and that the amendment sought to introduce a new plaintiff. In dealing with this argument Friedman J, with whom Berman J concurred, stated at 914 B - D:

"I do not agree that the amendment involves the substitution of one persona for another as plaintiff. From the beginning the action was one by the executor in the estate of the late Anne Tobias. Boland Bank did not purport to sue in its personal capacity: it sued in its capacity as executor in the deceased estate. This was a misdescription of the plaintiff; the correct plaintiff was Jordaan who had been nominated by the bank in terms of s 16 of the Administration of Estates Act 66 of 1965, and to whom the Master had, pursuant to such nomination, issued letters of administration. The amendment sought to rectify the misdescription by substituting the name of Jordaan for that of the bank as executor. In this respect the application for amendment is similar to those in Yu Kwam v President Insurance Co Ltd 1963 (1) SA 66 (T); Schnellen v Rondalia Assurance Corporation of SA Ltd 1969 (1) SA 517 (NV) and Samente v Minister of Police and Another 1978 (4) SA 632 (E)."

It was further argued that the estate was not a legal persona _.but merely an aggregate of assets and liabilities the power of dealing with which rested with the executor who was the only person who could institute proceedings on behalf of the estate. It was submitted therefore that the proceedings instituted by Boland Bank Ltd were a nullity and could only become valid when Jordaan, who was in fact the executor, became a party to them. The introduction of Jordaan amounted, so it was submitted, to the substitution of an entirely new plaintiff, the existing one being a different entity.

Friedman J, with regard to this argument, stated as follows as 914 G - H:

"Accepting that a deceased's estate is not a legal persona and that only the executor can sue or be sued on its behalf, it is clear that in the present case the action was one in which the executor was in fact purporting to sue on behalf of the estate. It was, in other words, a representative action and did not differ, in principle, from the cases referred to above in which the plaintiff, who mistakenly thought he was the correct person to act in a representative capacity, was replaced by the person who was in fact the correct person."

In my view the principles espoused by Friedman J in the Boland Bank case supra are applicable to the present matter. Plaintiff lodged a claim against the deceased's estate. He then instituted action against the persona whom he believed was the correct person to act in a representative capacity on behalf of the estate. He was mistaken in this regard inasmuch as he cited as defendant the agent of the executrix and not the executrix herself. He then sought merely to correct that mistake by citing as the defendant the actual executrix. All that the magistrate did, by granting an order for the joinder of defendant and by granting the subsequent amendment to reflect the fact of her joinder, was to correct what was no more than a misdescription of the actual representative of the estate. This was not, in my view, a case of substituting one defendant for another. (Compare Mutsi v Santam Versekerinqsmaatskappy en `n ander 1963 (3) SA 11 (O)). The action was at all times one in which plaintiff was purporting to sue Legatus Trust as representative of the estate. As in the Boland Bank Ltd case supra, the possibility of defendant being prejudiced through being deprived of the opportunity of pleading prescription does not arise.

In Devonia Shipping Ltd v M V Luis (Yeoman Shipping Co Ltd intervening) 1994 (2) SA 363 (C) Rose Innes J stated at 369 G - I:

"The risk of prejudice will usually be less in the case where the correct party has been incorrectly named and the amendment is sought to correct a misnomer, than in a case where it is sought to substitute a different party. The criteria in both cases is prejudice which cannot be remedied by an order as to costs and there is no difference in principle between the two cases..."

As was stated in Rosner v Lydia Swanepoel Trust 1998 (2) SA 123 (W) at 127 H the approach of Rose Innes J is "eminently practical and sensible, eschewing technicality and correcting procedural mistakes as cheaply as is possible."

In the present matter the magistrate expressed grave reservations as to the conduct of Legatus Trust especially having regard to the letter of 7 March 1999 written by it to the creditors. Whilst I am satisfied that there is no evidence that in writing the aforesaid letter Legatus Trust deliberately set out to deceive plaintiff as to the identity of the actual executor its actions thereafter, once action had been instituted against it as executor, leave, in my view, much to be desired. One would have expected Legatus Trust, who was after all the duly appointed agent of defendant, immediately to have advised plaintiff upon service of the summons upon it that defendant and not itself was in fact the actual executor, instead of adopting the technical and obstructive approach it did.

In any event, Legatus Trust was the duly appointed agent of defendant and, in these circumstances, there can be no question whatsoever of any prejudice having been occasioned to defendant by the correction of the misdescription of the executor.

I am satisfied therefore that on this point alone the appeal falls to be dismissed

In the event, however, that I may be wrong in coming to this conclusion I turn to deal with the further point which was argued before us, namely whether or not the magistrate was correct in his application of the provisions of s 12 (3) of the Act.

S 12 (3) provides as follows:

"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."

In Drennan Maud and Partners v Pennington Town Board [1998] ZASCA 29; 1998 (3) SA 200 (SCA) Olivier JA stated with regard to s 12 (3) of the Act as follows at 209 F - G:

"Section 12 (3) of the Act provides that a creditor shall be deemed to have the required knowledge 'if he could have acquired it by exercising reasonable care.' In my view, the requirement `exercising reasonable care' requires diligence not only in the ascertainment -of the facts underlying the debt but also in relation to the evaluation and significance of those facts. This means that the creditor is deemed to have the requisite knowledge if a reasonable person in his position would have deduced the identity of the debtor and the facts from which the debt arises."

See too Administrator, Cape v Olpin 1996 (1) SA 569 (C).

Mr. Koekemoer submitted that a reasonable person in the position of plaintiff would indeed have deduced the identity of the defendant prior to the institution of his action against Legatus Trust. I am, however, not persuaded by anything he has urged upon us that the magistrate erred in coming to the conclusion he did in this regard. In my view it would not be expected of a lay person in the position of plaintiff, armed as he was with the letter of 7 March 1999 from Legatus Trust, to inquire any further into the issue as to whether or not Legatus Trust might be precluded by the provisions of s 16 of the Administration of Estates Act No 66 of 1965 from being appointed as executor. Any reasonable person in the position of plaintiff would, in my view, have accepted at face value what was stated in that letter more especially when it is borne in mind that such letter was in fact a formal communication by the "executor" to the creditors of the estate. In these circumstances plaintiff's failure to make any inquiries from the Master's office as to the correct identity of the executor cannot be said to be unreasonable and Plaintiff's conduct, in my view, did not fall below that expected of a reasonable person.

I should mention that Mr. Koekemoer, correctly in my view, did not seek to contend that any failure on the part of plaintiff's attorney to ascertain the true identity of the executor should be imputed to plaintiff.

In Jacobs v Adonis supra Foxcroft J stated with regard to an identical argument as follows at 251 J:

"I see no reason to hold that the reference to the word `creditor' in the section should be extended to be read as `... if he or his agent could have acquired it by exercising reasonable care."'

I respectfully agree. Compare too Basson v Bester 1952 (3) SA 578 (C).

In all the circumstances I am satisfied that defendant, upon whom the onus rested to establish her special plea of prescription, failed to discharge that onus and that the magistrate was correct in dismissing the special plea.

________________________

J.W'PICKERING

JUDGE OF THE HIGH COURT

I agree,

Accordingly the appeal is dismissed with costs.

__________________________

N. GOSO

ACTING JUDGE OF THE HIGH COURT

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