REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA
LIMPOPO DIVISION, POLOKWANE

(1)	REPORTABLE:YES/NO
(2)	OF INTEREST TO OTHER JUDGES: YES/NO
(3)	REVISED

							CASE NUMBER: 535/2019

In the matter between: 
LESIBA MICHAEL MAPHETO 				   APPLICANT
			 	     
AND  

SAMUEL MAMABOLO				               1ST RESPONDENT
RAHLABA SAMUEL					    2ND RESPONDENT
MINISTER OF POLICE					    3RD RESPONDENT

									________________
JUDGEMENT
												
KGANYAGO J 
       	
[1] 	The applicant brought a spoliation application seeking an order that he be restored possession of a certain Tipper Truck with registration numbers FHM 670 GP by the first respondent. The first and second respondents are opposing the applicant’s application. The respondents have raised a point in limine of prescription against the applicants claim.
[2]	 The background facts are that the applicant was employed by his uncle who was renting out his trucks to construction companies. His uncle gave him one of the trucks of which he transferred it into his names. However, that truck remained being rented out by his uncle to the other construction companies. His uncle passed away on the 31st December 2004 and was buried during January 2005.
[3] 	After the passing of his uncle there was a dispute about the ownership of the Tipper Truck. The applicant was called by Midrand SAPS informing him that the second respondent has opened a criminal case against him alleging that he had stolen her vehicle. On the 13th May 2006 he took the truck to the SAPS Midrand where it was taken and parked with stolen vehicles for safekeeping until the matter was resolved. 
[4] 	On the 18th May 2006 he went back to Midrand SAPS to enquire about the Tipper Truck and was told that it was not registered in their books and the truck was no longer there. He tried without success to resolve the matter with the SAPS.  
[5] 	On the 5th February 2007 he employed the services of Motsile Attorneys to assist him. Unfortunately, Mr Motsile passed away before the matter was resolved. He had to retrieve the file from the Law Society in Pretoria. On the 30th June 2011 he appointed Sebuyi Attorneys to take over the matter. However, he terminated the services of Sebuyi Attorneys as he could not afford their fees.
[6] 	On the 7th June 2012 he opened a criminal case and reported the truck as stolen at Midrand SAPS. The SAPS did not make any progress with his case. On the 22nd July 2018 he saw the truck parked inside a yard at Turfloop Location. He took the pictures of the truck and went to report the matter at Midrand SAPS. He was told to go and report the matter at the nearest SAPS.
[7] 	The applicant went to Mankweng SAPS. He together with the vehicle theft unit based in Polokwane went to the premises where the truck was parked. On arrival at the premises, the first respondent introduced himself as the owner of the premises and told them that he had bought the entire estate of his uncle, including the truck from the second respondent. He also told them that the truck was not yet registered into his names as he was still paying the purchase price in instalments and was also awaiting a police clearance as the truck has been circulated as stolen. The police officers then advised him to go the civil route in order to retrieve the truck, hence the present application.     
[8] 	The respondents’ in their point in limine of prescription are stating that the 	cause of action in this matter arose during 1999 if not 2006 when the truck was 	taken away from the applicant allegedly by the second respondent through 	the assistance of the police. The respondents are submitting that the three year                    	period have   lapsed before the applicant launched his application.
[9] 	The applicant’s counsel in this court submitted that the applicant had located the truck inside the yard in Turfloop Location on the 22nd July 2018. It is the applicant’s contention that the debt does not arise from the contract and could therefore not be deemed to be due until the creditor, (in this instance the applicant) had knowledge of the identity of the debtor, (first respondent) and of the facts from which the debt arose (the location of the truck).
[10] 	In terms of Section 12(1) of the Prescription Act (the Act), prescription shall commence to run as soon as the debt becomes due. Section 12 (3) of the Act provides that the 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 a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care.  
[11] 	In Price Waterhouse Coppers INC and Others v National Potato Co-operative Ltd & Another the court said
	“…In a line of cases commencing with Drennan Maud & Pathers v Pennington Town Board this court has consistently held that all that is required is knowledge of the minimum facts required to institute action. It is unnecessary for the claimant to be aware of the legal consequences of those facts. Where the claimant does not have actual knowledge of those facts, but could by the exercise of reasonable care have acquired that knowledge, that is equivalent to actual knowledge”.
[12] 	As per the applicant’s version, he took the truck to the SAPS Midrand after he was requested to do so by the police. The truck was kept with other stolen vehicles at the SAPS Midrand. The SAPS Midrand had a legal duty to keep the truck safe until the dispute relating to it was resolved. The truck disappeared whilst in the hands of SAPS Midrand and they could not tell the applicant as to what happened to the truck.

[13] 	The applicant became aware that the truck has disappeared during May 2006. He also had knowledge that the truck disappeared in the hands of the SAPS Midrand. The applicant therefore knew the identity of the persons who were responsible for the disappearance of his truck. As at May 2006 the applicant could have instituted action against the third respondent as the truck disappeared in the hands of the SAPS who were supposed to keep the truck safe and were also unable to tell him how it disappeared. Even after the truck was parked with other stolen vehicles, the applicant was given a wrong case number by inspector Malapane. When applicant brought it to the attention of inspector Malapane that the case number was wrong, he promised to fix it but never did that. When the applicant followed up the matter with the seniors in the SAPS, it was confirmed to him that the case number given to him by inspector Malapane was indeed wrong. 
[14]	 Inspector Malapane when he took the truck for safe keeping was acting 	within the course and scope of his employment. The mere fact that he had 	brought it to the attention of inspector Malapane that the case number 	wasincorrect 	and he promised to fix it, but did not do so, and also that the truck 	disappeared whilst in the safekeeping of the SAPS Midrand, was sufficient 	enough to hold the 	third respondent liable for the disappearance of the truck 	since inspector Malapane was acting within the course and scope of his 	employment when he took the truck for safekeeping.
[15]	The applicant had the required knowledge and minimum facts required to 	institute action as at May 2006, but he failed to do so. From 2006 up to 2018 it 	is a long period of time which has expired despite the applicant having the 	identity of the person whom he 	could have instituted action against. The 	applicant has explained the steps that he took in trying to locate the truck up 	the 7th June 2012. From there he seemed to have given up to ever 	recovering the truck in question. Even from 2012 to 2018 it is still more 	than 3 years.
[16]	I am alive to the fact that in this application the applicant is seeking a 	spoliation order against the facts that came to his knowledge on the 22nd July 	2018. The facts of the 22nd July 2018 does not take away when cause of 	action arose and also when he had actual knowledge of the minimum facts 	required to institute action. In my view, the cause of action arose during May 	2006, and by then the applicant had minimum facts required to institute 	action, and the identity of the persons that he could have instituted action 	against. Under the circumstances, I am satisfied that there is merit in the 	respondents’ point in limine of prescription. 
[17]	 In the result I make the following order:
	17.1 The respondents’ point in limine of prescription is upheld with costs on 		party and party scale. 

____________________________________________
MF KGANYAGO J
JUDGE OF HIGH COURT OF SOUTH AFRICA, LIMPOPO DIVISION, POLOKWANE

APPEARANCE:
 FOR THE APPLICANT              : ADV. SA NKOANA
INSTRUCTED BY  	                    : SEGALA SESHIBE ATTORNEYS
					111 IBAZELO SECTION
					CORNER MAMBO & JULIUS NYERERE 					STREET, TEMBISA
					 		  
 FOR THE RESPONDENT		: ADV. TW BABEDI
INSTRUCTED BY   			: MPHO MOKHITHI INC ATTORNEYS 
						  42 SCHOEMAN STREET
						  POLOKWANE  		
DATE OF HEARING   		:  06 NOVEMBER 2019
DATE OF JUDGEMENT 		:  12TH DECEMBER 2019