---

IN THE HIGH COURT OF SOUTH AFRICA

NATAL PROVINCIAL DIVISION

2246/2002

ELIZABETH ANNE DOMINY PLAINTIFF

versus

THE EMNAMBITHI-LADYSMITH MUNICIPALITY DEFENDANT

RESERVED JUDGMENT

Delivered on: 24 November 2006

NTSHANGASE, J

Introduction

1. The plaintiff instituted an action and served a summons upon the defendant on 26 June 2002 for the recovery of delictual damages for injuries sustained on 20 June 2000 as a result of falling down an inspection manhole, an occurrence which the plaintiff attributes to the negligence of the Colenso/Nkanyezi Local Council to which the defendant was the successor in title, vested in the matter with the same rights and liabilities that the Colenso/Nkanyezi Local Council had.

2. The defendant filed a plea on the merits denying negligence, alternatively alleging contributory negligence on the part of the plaintiff, and a special plea in which it contended that the plaintiff’s claim had become prescribed as the summons was served upon it outside of 24 months. In that regard the defendant relies on section 2(1)(c) of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act No. 94 of 1970 (“the Act”). Section 2(1)(c) of the Act provided that no legal proceedings in respect of any debt could be instituted against an administration, local authority or officer after the lapse of a period of 24 months as from the day on which the debt became due.

3. In a replication the plaintiff, relying on section 2(2)(c) of the Act averred in essence that she had no knowledge of the identity of the debtor and the debt could not be regarded as due before the first day on which she had such knowledge or before the first day on which she could, by the exercise of reasonable care, have acquired such knowledge, whichever would be the earlier day. She averred that she was able to acquire such knowledge by the exercise of reasonable care only on 11 August 2000 and was therefore not precluded in terms of section 2(1)(c) from recovering from the defendant as her claim had not become prescribed.

4. The parties agreed, and the court ordered, a separation of issues in terms of Rule 33(4) of the Rules of Court for the matter to proceed only on issues raised in the special plea as read together with the plaintiff’s replication.

The plaintiff’s and defendant’s cases

5. It is not in dispute that the defendant was a local authority as defined in Section 1 of the Act. It is also not in dispute that the cause of action arose on 20 June 2000. On 20 June 2000 the plaintiff and Mr AMB Creighton from whom the plaintiff was to take over as Town Clerk inspected the Colenso Water Purification Works where the plaintiff fell into the manhole causing her to sustain injuries. She was hospitalised. According to the evidence of Mr Creighton, given for purposes of determination of the special plea, the plaintiff knew that she was to be appointed as Town Clerk of Colenso. Umsekeli provided management capacity to Colenso which had its own Council. There was to be an amalgamation with Emnambithi.

6. The plaintiff testified not only that she had no knowledge of the identity of her debtor but also that she was, as a result of her injuries, not in a position to ascertain who was liable to pay her for damages sustained as a result of the injuries. Under cross-examination the plaintiff however confirmed that she was to be a Town Clerk of Colenso. She also stated that when Mr Creighton took her on an orientation visit to the water works, she knew that it was Colenso water works that they were inspecting and that the employees that they saw would have been employees of Colenso. She stated also that if someone were to ask her who it was that had failed to close the manhole into which she fell, her answer would have been that it was the Colenso employees. Under re-examination though, she stated that she did not know who was responsible for maintenance. She said also Umsekeli controlled the water works.

7. Clearly it behoved the plaintiff to make such enquiries as would have been necessary to ascertain the identity of her debtor. As to how the debt arose, she knew; she had fallen into the manhole and suffered injuries. In regard to the identity of her debtor, all that was required of the plaintiff was for her to have the basic, the minimum facts at her disposal in the critical period of the 20^th June to the 26^th June 2000 to enable her to serve the summons on the defendant. If she had such facts but failed to serve the summons, prescription would, over that critical period, have begun to run. In dealing with section 12(3) of the Prescription Act 68 of 1969 which contained provisions identical to section 2(2)(c) of the Act, Schutz JA, in Nedcor v Regering van die Republiek van Suid-Afrika 2001(1) SA987(A) at 995-996A stated:

“Hou mens dit alles in gedagte bestaan daar geen dwingende rede waarom ʼn skuldeiser volkome oor alle aspekte van sy beoogde litigasie ingelig moet wees alvorens verjaring begin loop nie. Die skuldenaar se belange moet immers ook in ag geneem word.”

Schutz JA explains the purpose of the provisions of the Act:

“Wat die Wet nastreef, is ʼn gulde middeweg tussen die onbillikheid, aan die een kant, dat ʼn potensiёle skuldenaar ʼn ewigheid na die plaasvind van die gewraakte gebeure skielik met hofverrigtinge bedreig word en die onbillikheid, aan die ander kant, dat ʼn potensiële skuldeiser sy aanspraak op regshulp bloot vanweë tydsverloop verbeur waar hy, sonder enige verwyt aan sy kant, nie oor die nodige inligting beskik om sodanige hofverrigtinge van stapel te stuur nie.” (See page 95 at para [9])

In the present case the plaintiff had the basic facts as she was about to take up employment with the defendant. She had met the defendant’s councillors and had been introduced to them. As has been indicated, she, in particular also knew that the employees of the water works would have been employees of Colenso. The plaintiff knew Colenso and, in that regard, Counsel for the defendant, in arguing for the acknowledgement of the sufficiency of such knowledge aptly referred to the passage in the judgment delivered by Diemont JA in Gericke v Sack 1978(1) SA 821(A) at 830A where he stated that “(i)n order to establish the identity of the person on whom service is to be effected, the Sheriff will require the name and address of the debtor …”, but that “(i)t may be that in some cases the debtor is so distinguished or notorious that no address is necessary, or in some cases that his name is so commonplace that a detailed address is called for.” To compare the position in that case with reference to the issue of the exercise of reasonable care in regard to the acquisition of knowledge of the identity of the debtor insofar as it applies in the present case, the observation of Diemont JA, at 831H to 832 would be apposite to quote. In that case, as was the position in the present case, it was stated that the appellant could “carry on a normal conversation and she was fully conscious and compos mentis”. The plaintiff in the present case was in conversation with her husband within the critical period which followed shortly after her injury and prior to midnight of 26 June 2000. In Abrahamse v East London Municipality and Another 1997(4) SA 613(SCA) at 634 Harms JA stated:

“I did not understand Counsel to dispute that it was very easy to determine which Municipality was in control of the burst pipe. A single call to the local authority would have sufficed.”

To the plaintiff in the present case, the telephone facility was not out of reach as she had in fact telephoned her husband within the critical period of 20 June to 26 June 2000.

8. I see no reason why the plaintiff would have needed to rely on a reckless assumption of who her debtor was when she could have enquired even from Mr Creighton about her debtor shortly after the injury and well within the critical period which followed after her injury. Mr Creighton had been with her at the time of her injury. The plaintiff’s conduct may be further assessed against the following dictum from Gericke supra at 832(A):

“Moreover … she could at any time later in the afternoon have asked her husband … to make enquires … It does not seem to me that this was asking too much of plaintiff or causing her any hardship. The act merely requires the creditor to seek such knowledge by the exercise of reasonable care; she is not required to issue summons – she is given a generous three years (in the present case two years) in which to institute proceedings. All that she is called on to do is to ask one question to establish the identity and not to be content to play a purely passive roll (sic). If she could have acquired this knowledge by acting diligently her inertia, ineptitude or indifference will not excuse her delay. The creditor who fails to exercise the reasonable care prescribed by the Act must pay the penalty for he is then deemed to have acquired the knowledge necessary for the debt to become due and for prescription to begin to run.”

9. In the process of assessment whether or not the plaintiff’s conduct was reasonable, I have taken into account the physical disabilities to which the plaintiff may have been subject at the relevant time and the consequences thereof [see Administrator, Cape Town v Olpin 1996(1) SA 569(C) at 579A]. I have also taken into account her mental condition and the pain reasonably expected to have been endured by her from her injuries at the relevant critical time, as well as the fact that she was rendered immobile and was hospitalised for a period beyond 26 June 2000, and that at that time she would have had a concerned pre-occupation about the prospects of regaining her health.

10. However it needs to be pointed out that section 2(2)(c) of the Act requires only the exercise of reasonable care by a creditor in acquiring knowledge of the identity of the debtor, and the conduct of the creditor has to be measured against reasonable prudence.

Conclusion

11. With due cognizance of all the circumstances of this case and all the factors relative to the plaintiff’s physical and mental condition at the critical time, I am satisfied that the defendant has discharged the onus to prove that over the period of the 20^th to the 26^th June 2000, the plaintiff did know her debtor; not only that, but also that the circumstances were such that the plaintiff, by the exercise of reasonable care, could have established the identity of her debtor over the stated period. By reason of her lack of prudence and inertia she allowed her claim to become prescribed.

Order

12. I accordingly make the following order:

1. The special plea is upheld.

2. The plaintiff’s claim is dismissed with costs.

Date of Hearing: 26 June 2006

Date of Judgment: 24 November 2006

Counsel for the plaintiff: Adv G M E Lotz

Instructed by: Tomlinson Mnguni James Inc.

Counsel for the defendant: Adv J F Mullins SC

Instructed by: Savage Jooste & Adams Inc

---