102 s african lj 385

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Citation: 102 S. African L.J. 385 1985

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RECENT CASES 385limit for fulfilment of the condition, a condition which has beenostensibly inserted for the purchaser's benefit, cannot by itself beconclusive as to that common intention.

M E RIVALLAND*

PLEADING PRESCRIPTIONThe case of Cordier v Cordier 1984 (4) SA 524 (C) involved a rather

confusing series of events, both legal and factual. It is of someinterest, however, because the court considered certain proceduraldifficulties relating to the pleading of prescription.

What happened, briefly, was this: On 9 March 1978 the plaintiffbought a truck under a hire-purchase agreement, and duringNovember 1978 the defendant agreed to take over the plaintiff'sobligations and make the necessary payments to the Trust Bank, towhich the agreement had been discounted by the seller. Paymentswere to be at six-monthly intervals. In March 1979 the firstinstalment was paid (late) by the defendant to the bank; thereafter nofurther payments were received, and the bank cancelled the hire-purchase agreement on 6 November 1979. As a result of this theplaintiff had to pay the bank the sum of R4 900, and he accordinglyinstituted action against the defendant for this amount on 14 June1982.

Part of the confusion arose because the plaintiff thought theinstalments were to consist of an amount of R1 650, whereas in factthey consisted only of R1 453,89. It was also specified in the furtherparticulars that the defendant had failed to make the March paymenttimeously, thus leading to the plaintiff's damages. The plaintiffsought to amend his pleadings to make it clear that he was relying onthe failure to make the September payment.

A series of objections to this amendment was raised by thedefendant, the only one of substance being that the amendmentwould introduce a prescribed claim. There are, therefore, two aspectsof interest: (a) whether the claim had in fact prescribed, and (b)whether it is permissible to raise the issue of prescription by way ofobjection to an amendment.The prescription issue

The contention of the defendant (see at 531G-H) was thatsummons had originally been issued in June 1982 in respect of a causeof action that had arisen in March 1979, and which had thereforeprescribed. The effect of the amendment, originally applied for in

* Advocate of the Supreme Court of South Africa and of the High Court of Lesotho.

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386 THE SOUTH AFRICAN LAW JOURNAL1983, would be to substitute a cause of action that had arisen inSeptember 1979, which would also have prescribed.

Baker J, in the course of highlighting a number of inaccuracies inthe pleadings and submissions, stated:

'The March 1979 instalment was irrelevant to the plaintiff's cause of action. It wasso much history. His cause of action rests upon the non-payment of the September1979 instalment followed by Trust Bank's cancellation, and demand made onplaintiff to pay R4 900' (at 530E-F);

and'... the cause of action upon proper analysis did not include any late or inadequatepayment in March 1979' (at 5311);

and 'An error in the . . . [defendant's] contention is the statement that plaintiff isrelying on the March 1979 breach of contract. He is doing nothing of the sort. Ihave already said that reference to the March payment is surplusage' (at 532D-E).It is respectfully submitted that this is a correct analysis of thesituation; the plaintiff's claim was for damages as a result of breach of

contract, and the breach of contract which led to the damagesoccurred only in September 1979. Any reference to March 1979 (andit is unfortunately very difficult to determine from the report whatwas actually stated in the particulars of claim) would therefore haveto be regarded either as surplusage or made in error. Yet his lordshipwent on to hold:

'When the summons and statement of claim were served on defendant's attorneyson 14 June 1982 the debt relied upon had been prescribed for three months' (at532E-F).Relying on various authorities, the court held that where an

amendment introduces an additional alternative claim, the service ofthe original summons does not interrupt prescription (at 532G-H);this principle was extended by the court to the substitution of adifferent cause of action for the original one (at 533A). It seems,however (and I say this somewhat diffidently, not being fully in thepicture), that in the instant case neither of these scenarios wasinvolved. There was clearly no question of an additional cause ofaction, and it is submitted that there was in fact no substitution. Theplaintiff relied all along on a breach of contract giving rise to a claimfor damages, and that claim prescribed on 6 November 1982 (at533E-F). If this is the case, the summons (although perhapsincorrectly worded) was in fact served in time.The procedural issue

Although the court found that the claim had apparently prescribed,this did not dispose of the matter finally, for it still had to beconsidered whether it was permissible at all' to raise the question ofprescription at this stage of the proceedings.

In this connection the court was faced with the decision in RandStaple-Machine Leasing (Pty) Ltd v ICI (SA) Ltd 1977 (3) SA 199 (W),


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RECENT CASES 387where Viljoen J had refused to consider a similar objection to anamendment, holding that [tihe proper way to raise this issue ofprescription is to do so by way of a special plea' (at 202F-G). Thisattitude has been entrenched in Union & SWA Insurance Co Ltd vHoosein 1982 (2) SA 481 (W), where it was held that prescriptioncannot be raised by way of exception (at 482G-H), and has also beenexpressed in the Eastern Cape in Shield InsuranceCo Ltd v Zervoudakis1967 (4) SA 735 (E).

To a certain extent this attitude may have been encouraged by theold Prescription Act 18 of 1943, which required that prescription hadto be raised in the pleadings; the new Act (68 of 1969), however,requires only that it be raised in the relevant document filed of record(s 17(2)).

Baker J referred to the cases of George Singh & Co v EnsorNO &another1981 (1) SA 1190 (N) and Lipschitz v Dechamps Textiles GmbH& another 1978 (4) SA 427 (C), which had both interpreted the newAct, and concluded:

'It seems clear, therefore, that at least two divisions of the Supreme Court hold theview (correctly, with respect) that a special plea is not the only procedural devicethat can be used to raise the defence of prescription' (at 535G-H).The dictum to the contrary in the Rand Staple-Machine case wastherefore not approved (at 535H).

In order to bring some finality to this dispute it is perhaps necessaryto go back a little further. In Holmes v Schoch 1910 TPD 700 BristoweJ held:'There is no doubt that the defence of prescription ought to be pleaded. But in thiscase, though it was not pleaded as a defence, it was pleaded as an exception, andinasmuch as the point is one of law I do not think we ought to hold that theobjection is fatal to the appellant' (at 705). /In Cassimjee v Cassimjee 1947 (3) SA 701 (N) an exception raisingprescription was upheld, as it was purely a matter of law that wasinvolved. The court in Walsh NO v Scholtz 1968 (2) SA 222 (GW)came to a similar conclusion, although perhaps a little morereluctantly:'In 'n geval waar al die feite voor die hof is en die vraag of verjaring ingetree hetof nie bloot op 'n regsargument berus, soos in Cassimjee se saak blykbaar die gevalwas, kan daar vir 'n party eintlik geen sin in wees om beswaar te maak dat dieverweer van verjaring by wyse van eksepsie in plaas van 'n spesiale pleit geopper isnie' (a t 225B-C).

The courts which have rejected the notion that prescription may beraised by exception have in general been unable to cite any authorityfor their conclusion. The reason for reluctance to uphold exceptionsof this nature is, however, clear; the plaintiff may have a number ofcounters to the defence of prescription and it would be unfair toprejudge his case at the exception stage. This was recognized in Walsh(at 224D) and in Cordier:

'. .. it is only possible, not definite, that prescription is the full answer to plaintiff'scase. It may be, on the other hand, that plaintiff is able to allege and prove an


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Jz%5 THE SOUTH AFRICAN LAW JOURNALacknowledgement of liability by the defendant ... or a waiver of the defence, orsome other counterblast to defendant's assertion that plaintiff's new claim isprescribed. The grant of the amendment will leave it open to plaintiff to do so,whereas its refusal will leave plaintiff no option but to appeal' (at 535H-).It is submitted, with respect, that this is a correct statement of the

law, and that it applies with equal force to the situations whereprescription is raised by exception (see my comment in (1984) 3 CivilJustice Quarterly 354 at 355n10). It is also submitted that the time hascome to adopt a uniform approach to the question of the pleading ofprescription. The preponderance ofjudicial authority is in favour ofprescription's being able to be raised by any procedural means,provided that the general requirements for that procedure arecomplied with; it seems that this is the only logical approach. If thequestion of prescription turns only on a point of law and appears exfacie the pleadings, then an exception should be permitted; if such aclaim has unarguably prescribed, an amendment introducing itshould be refused. As a counterbalance to this, however, it must beacknowledged that in the vast majority of cases the court will beunable at this sort of stage in the proceedings to say unequivocallythat the claim has prescribed, and the party raising this sort ofobjection always takes a risk. Nevertheless, this should not beallowed to obscure the true position, which demands that a party bepermitted to adopt the cheapest and most expeditious method forsettling his dispute.

Thus far only the Transvaal and Eastern Cape courts have adopteda contrary approach; it is submitted that the attitude expressed inCordieris preferable and will, it is to be hoped, become the standardin future.

ANDREW BECK*

THE ELEMENTS OF INIURIABoswell & others v Union Club of South Africa (Durban) 1985 (2) SA

162 (D) illustrates the cloud of mysticism surrounding the elementsof delict in South African law. Assuming the correctness of thedecision, the actio iniuriarum appears to be, or to have become, anaction embracing different torts to which different principles areapplicable.

The plaintiffs were members of the defendant club. They claimed'damages' on the basis that the general committee of the club hadimpaired their dignity and reputation and that its actions had causedthem to lose the enjoyment, facilities and privileges of membership ofthe club (at 163E-F).

* Associate Professor of Law, University of Bophuthatswana.


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RECENT CASES 389On 21 July 1981 the plaintiffs were initially suspended from

membership of the club until 30 July 1981 (at 165). Subsequently, on30 July, they were again suspended, and finally, on that day, expelled(at 165C). Apparently the plaintiffs received a letter on 31 July (at163C), which resulted from a meeting held on 30July (at 1651). In theletter they were informed that the committee had called upon them toresign their membership of the club and, on non-compliance within14 days, they would be struck off the list of members (at 163C-D).This apparently led to their (forced) resignation (at 1621-J).

The court found that'. . . the initial suspension on 21 July 1981 andthe subsequent suspension and expulsion on 30 July 1981 constitutedan aggression of the plaintiff's [sic] dignity and reputation involving. . . the imputation that they had been guilty of conduct unbecominga gentleman or likely to reflect discredit on the club' (at 165C-D).

Three requisites to found an action of iniuria were identified (at1641-J) with reference to earlier decisions: '(1) animus; (2) anaggression on the plaintiff; and (3) a wrongful act.'

The order in which these requisites are stated could be reconciledwith the teleological reasoning found in Welzel's final-conductdoctrine. (SeeJ R du Plessis 'Hans Welzel's Final-conduct Doctrine-An Importation from West Germany We Could Well Do Without'(1984) 101 SALJ 301; C R Snyman 'The Attack on German CriminalLegal Theory-A Retort' (1985) 102 SALJ 120.)

Because this was obviously not intended, that order is not desirablewhen applying the accepted principles of South African law.Accordingly, the first finding of the court was that the secondrequisite had been complied with (at 165C-D) and the other tworequisites had to be decided subsequently. This approach is inaccordance with the principle that such an initial finding raisespresumptions of unlawfulness and animus iniuriandi, burdening thedefendant with an onus (in the form of a 'weerleggingslas') to rebutthe presumptions. (See the quotation from Borgin v De Villiers &another 1980 (3) SA 556 (A) at 167C-E, and see Joubert & others vVenter 1985 (1) SA 654 (A) at 6951-697G, where the court stronglyexpresses an obiter view in favour of a full burden of proof.)

It is submitted that the requirement of 'an aggression on theplaintiff' could rather be stated as 'harm to personality interests of theplaintiff'. Because this requirement does not predetermine the issueof unlawfulness, it should also be noted that it does not involve thequestion whether the 'rights' of the plaintiff have been affected. Hereit is only the interests of the plaintiff that are at stake, regardless of thebalance of interests determining the extent of his rights in a particularsituation. (See J Neethling Persoonlikheidsreg (1979) 27-30, 69-71.)Accordingly, the term 'prima facie defamatory [publication]' hasbeen used to indicate this requirement with regard to defamation.(See Borgin v De Villiers (supra) at 571E-F.)


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.-U THE SOUTH AFRICAN LAW JOURNALTraditionally the specific personality interests concerned determinewhether the action is based on defamation, another iniuria, or both.(See Neethling op cit 39-52; DJ McQuoid-Mason The Law ofPrivacy

in South Africa (1978) 242-3.) It is rather curious that the courtexplicitly categorized the action in this case as not based on defamation(at 167G-J). Obviously the action was based on facts at leastinvolving what is traditionally identified as defamation. Throughoutthe decision it is quite clear that the complaints of the plaintiffs wereto a great extent directed against the harm done to their reputations(at 163E, 164D), and at 165C the court explicitly found theirreputations to have been harmed.

With regard to the remarks by the court in discussing the issues ofdamages and costs, it is also clear that the defamation element was notoverlooked. It was specifically stated that the amount of the damageswas affected by the harm done to the reputation of the plaintiffs andtheir standing in the community (at 169G-H). The harm to theirreputation was also explicitly borne in mind when the order withregard to costs was considered (at 169H-I).The attempt in the judgment to distinguish this case completelyfrom a case of defamation was, with respect, therefore unsuccessful.According to the judgment of the court, unlawfulness stands or

falls with the unconstitutional conduct of the disciplinary body (at165D-H, 166H, 167E). Non-compliance with the rules of naturaljustice seems to have been incorporated by the court into the conceptof unconstitutional conduct (at 165G, 166G), or, alternatively, theserules might in this instance have been enacted into the constitution ofthe club.

Although there might often be a limited measure of acceptability insuch an approach, it tends to obscure the issue that really has to bedecided. The question is not whether the members have beenexpelled from the club in an unconstitutional manner but whether theconsequential harm to their personality interests is unlawful under thecircumstances. It is quite conceivable that an unconstitutionalexpulsion, even accompanied by a seriously defamatory and insultinginnuendo, might for the purposes of an action based on that insultand defamation be justified.

Such an expulsion will remain 'unlawful' in the sense that theplaintiffs could avail themselves of certain remedies. However, as faras defamation or another form of iniuria is concerned, there couldnevertheless be a valid defence of ustification. An example would bea case where the accompanying innuendo is the truth and the publi-cation of it is in the public interest. Whereas the facts implied by theinnuendo might not warrant an expulsion in the particular instance,the unconstitutionality of the expulsion will not necessarily excludeall defences justifying the publication of those facts. ('Justification' isused here in the general sense of 'excluding unlawfulness'.)

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