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Citation: 102 S. African L.J. 385 1985 Content downloaded/printed from HeinOnline (http://heinonline.org) Thu Jun 13 09:11:27 2013 -- Your use of this HeinOnline PDF indicates your acceptance of HeinOnline's Terms and Conditions of the license agreement available at http://heinonline.org/HOL/License -- The search text of this PDF is generated from uncorrected OCR text. -- To obtain permission to use this article beyond the scope of your HeinOnline license, please use: https://www.copyright.com/ccc/basicSearch.do? &operation=go&searchType=0 &lastSearch=simple&all=on&titleOrStdNo=0038-2388

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limit for fulfilment of the condition, a condition which has been ostensibly inserted for the purchaser's benefit, cannot by itself be conclusive as to that common intention. ME
RIVALLAND*

PLEADING PRESCRIPTION

The case of Cordier v Cordier 1984 (4) SA 524 (C) involved a rather confusing series of events, both legal and factual. It is of some interest, however, because the court considered certain procedural difficulties relating to the pleading of prescription. What happened, briefly, was this: On 9 March 1978 the plaintiff bought a truck under a hire-purchase agreement, and during November 1978 the defendant agreed to take over the plaintiff's obligations and make the necessary payments to the Trust Bank, to which the agreement had been discounted by the seller. Payments were to be at six-monthly intervals. In March 1979 the first instalment was paid (late) by the defendant to the bank; thereafter no further payments were received, and the bank cancelled the hirepurchase agreement on 6 November 1979. As a result of this the plaintiff had to pay the bank the sum of R4 900, and he accordingly instituted action against the defendant for this amount on 14 June 1982. Part of the confusion arose because the plaintiff thought the instalments were to consist of an amount of R1 650, whereas in fact they consisted only of R1 453,89. It was also specified in the further particulars that the defendant had failed to make the March payment timeously, thus leading to the plaintiff's damages. The plaintiff sought to amend his pleadings to make it clear that he was relying on the failure to make the September payment. A series of objections to this amendment was raised by the defendant, the only one of substance being that the amendment would introduce a prescribed claim. There are, therefore, two aspects of interest: (a) whether the claim had in fact prescribed, and (b) whether it is permissible to raise the issue of prescription by way of objection to an amendment. The prescription issue The contention of the defendant (see at 531G-H) was that summons had originally been issued in June 1982 in respect of a cause of action that had arisen in March 1979, and which had therefore prescribed. 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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1983, would be to substitute a cause of action that had arisen in September 1979, which would also have prescribed. Baker J, in the course of highlighting a number of inaccuracies in the pleadings and submissions, stated:
'The March 1979 instalment was irrelevant to the plaintiff's cause of action. It was so much history. His cause of action rests upon the non-payment of the September 1979 instalment followed by Trust Bank's cancellation, and demand made on plaintiff to pay R4 900' (at 530E-F);

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

and
'An error in the . . . [defendant's] contention is the statement that plaintiff is relying on the March 1979 breach of contract. He is doing nothing of the sort. I have already said that reference to the March payment is surplusage' (at 532D-E).

It is respectfully submitted that this is a correct analysis of the situation; the plaintiff's claim was for damages as a result of breach of contract, and the breach of contract which led to the damages occurred only in September 1979. Any reference to March 1979 (and it is unfortunately very difficult to determine from the report what was actually stated in the particulars of claim) would therefore have to be regarded either as surplusage or made in error. Yet his lordship went on to hold:
'When the summons and statement of claim were served on defendant's attorneys on 14 June 1982 the debt relied upon had been prescribed for three months' (at 532E-F).

Relying on various authorities, the court held that where an amendment introduces an additional alternative claim, the service of the original summons does not interrupt prescription (at 532G-H); this principle was extended by the court to the substitution of a different cause of action for the original one (at 533A). It seems, however (and I say this somewhat diffidently, not being fully in the picture), that in the instant case neither of these scenarios was involved. There was clearly no question of an additional cause of action, and it is submitted that there was in fact no substitution. The plaintiff relied all along on a breach of contract giving rise to a claim for damages, and that claim prescribed on 6 November 1982 (at 533E-F). If this is the case, the summons (although perhaps incorrectly 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 be considered whether it was permissible at all' to raise the question of prescription at this stage of the proceedings. In this connection the court was faced with the decision in Rand

Staple-Machine Leasing (Pty) Ltd v ICI (SA) Ltd 1977 (3) SA 199 (W),

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where Viljoen J had refused to consider a similar objection to an amendment, holding that [tihe proper way to raise this issue of prescription is to do so by way of a special plea' (at 202F-G). This attitude has been entrenched in Union & SWA Insurance Co Ltd v Hoosein 1982 (2) SA 481 (W), where it was held that prescription cannot be raised by way of exception (at 482G-H), and has also been expressed in the Eastern Cape in Shield Insurance Co Ltd v Zervoudakis 1967 (4) SA 735 (E). To a certain extent this attitude may have been encouraged by the old Prescription Act 18 of 1943, which required that prescription had to 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 Ensor NO & another 1981 (1) SA 1190 (N) and Lipschitz v Dechamps Textiles GmbH & another 1978 (4) SA 427 (C), which had both interpreted the new Act, and concluded:
'It seems clear, therefore, that at least two divisions of the Supreme Court hold the view (correctly, with respect) that a special plea is not the only procedural device that can be used to raise the defence of prescription' (at 535G-H).

The dictum to the contrary in the Rand Staple-Machine case was therefore not approved (at 535H). In order to bring some finality to this dispute it is perhaps necessary to go back a little further. In Holmes v Schoch 1910 TPD 700 Bristowe

J held:
'There is no doubt that the defence of prescription ought to be pleaded. But in this case, though it was not pleaded as a defence, it was pleaded as an exception, and inasmuch as the point is one of law I do not think we ought to hold that the objection is fatal to the appellant' (at 705). /

In Cassimjee v Cassimjee 1947 (3) SA 701 (N) an exception raising prescription was upheld, as it was purely a matter of law that was involved. The court in Walsh NO v Scholtz 1968 (2) SA 222 (GW) came to a similar conclusion, although perhaps a little more reluctantly:
'In 'n geval waar al die feite voor die hof is en die vraag of verjaring ingetree het of nie bloot op 'n regsargument berus, soos in Cassimjee se saak blykbaar die geval was, kan daar vir 'n party eintlik geen sin in wees om beswaar te maak dat die verweer van verjaring by wyse van eksepsie in plaas van 'n spesiale pleit geopper is nie' (at 225B-C).

The courts which have rejected the notion that prescription may be raised by exception have in general been unable to cite any authority for their conclusion. The reason for reluctance to uphold exceptions of this nature is, however, clear; the plaintiff may have a number of counters to the defence of prescription and it would be unfair to prejudge 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's case. It may be, on the other hand, that plaintiff is able to allege and prove an

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acknowledgement of liability by the defendant ... or a waiver of the defence, or some other counterblast to defendant's assertion that plaintiff's new claim is prescribed. 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 where prescription is raised by exception (see my comment in (1984) 3 Civil Justice Quarterly 354 at 355n10). It is also submitted that the time has come to adopt a uniform approach to the question of the pleading of prescription. The preponderance ofjudicial authority is in favour of prescription's being able to be raised by any procedural means, provided that the general requirements for that procedure are complied with; it seems that this is the only logical approach. If the question of prescription turns only on a point of law and appears ex facie the pleadings, then an exception should be permitted; if such a claim has unarguably prescribed, an amendment introducing it should be refused. As a counterbalance to this, however, it must be acknowledged that in the vast majority of cases the court will be unable at this sort of stage in the proceedings to say unequivocally that the claim has prescribed, and the party raising this sort of objection always takes a risk. Nevertheless, this should not be allowed to obscure the true position, which demands that a party be permitted to adopt the cheapest and most expeditious method for settling his dispute. Thus far only the Transvaal and Eastern Cape courts have adopted a contrary approach; it is submitted that the attitude expressed in Cordier is preferable and will, it is to be hoped, become the standard in future.
ANDREW BECK*

THE ELEMENTS OF INIURIA

Boswell & others v Union Club of South Africa (Durban) 1985 (2) SA 162 (D) illustrates the cloud of mysticism surrounding the elements of delict in South African law. Assuming the correctness of the decision, the actio iniuriarum appears to be, or to have become, an action embracing different torts to which different principles are applicable. The plaintiffs were members of the defendant club. They claimed 'damages' on the basis that the general committee of the club had impaired their dignity and reputation and that its actions had caused them to lose the enjoyment, facilities and privileges of membership of the club (at 163E-F).
* Associate Professor of Law, University of Bophuthatswana.

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On 21 July 1981 the plaintiffs were initially suspended from membership of the club until 30 July 1981 (at 165). Subsequently, on 30 July, they were again suspended, and finally, on that day, expelled (at 165C). Apparently the plaintiffs received a letter on 31 July (at 163C), which resulted from a meeting held on 30July (at 1651). In the letter they were informed that the committee had called upon them to resign their membership of the club and, on non-compliance within 14 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 and the subsequent suspension and expulsion on 30 July 1981 constituted an aggression of the plaintiff's [sic] dignity and reputation involving . . . the imputation that they had been guilty of conduct unbecoming a gentleman or likely to reflect discredit on the club' (at 165C-D). Three requisites to found an action of iniuria were identified (at 1641-J) with reference to earlier decisions: '(1) animus; (2) an aggression on the plaintiff; and (3) a wrongful act.' The order in which these requisites are stated could be reconciled with the teleological reasoning found in Welzel's final-conduct doctrine. (SeeJ R du Plessis 'Hans Welzel's Final-conduct DoctrineAn Importation from West Germany We Could Well Do Without' (1984) 101 SALJ 301; C R Snyman 'The Attack on German Criminal Legal Theory-A Retort' (1985) 102 SALJ 120.) Because this was obviously not intended, that order is not desirable when applying the accepted principles of South African law. Accordingly, the first finding of the court was that the second requisite had been complied with (at 165C-D) and the other two requisites had to be decided subsequently. This approach is in accordance with the principle that such an initial finding raises presumptions of unlawfulness and animus iniuriandi, burdening the defendant with an onus (in the form of a 'weerleggingslas') to rebut the presumptions. (See the quotation from Borgin v De Villiers & another 1980 (3) SA 556 (A) at 167C-E, and see Joubert & others v Venter 1985 (1) SA 654 (A) at 6951-697G, where the court strongly expresses an obiter view in favour of a full burden of proof.) It is submitted that the requirement of 'an aggression on the plaintiff' could rather be stated as 'harm to personality interests of the plaintiff'. Because this requirement does not predetermine the issue of unlawfulness, it should also be noted that it does not involve the question whether the 'rights' of the plaintiff have been affected. Here it is only the interests of the plaintiff that are at stake, regardless of the balance of interests determining the extent of his rights in a particular situation. (See J Neethling Persoonlikheidsreg (1979) 27-30, 69-71.) Accordingly, the term 'prima facie defamatory [publication]' has been used to indicate this requirement with regard to defamation. (See Borgin v De Villiers (supra) at 571E-F.)

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Traditionally the specific personality interests concerned determine whether 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 court explicitly categorized the action in this case as not based on defamation (at 167G-J). Obviously the action was based on facts at least involving what is traditionally identified as defamation. Throughout the decision it is quite clear that the complaints of the plaintiffs were to a great extent directed against the harm done to their reputations (at 163E, 164D), and at 165C the court explicitly found their reputations to have been harmed. With regard to the remarks by the court in discussing the issues of damages and costs, it is also clear that the defamation element was not overlooked. It was specifically stated that the amount of the damages was affected by the harm done to the reputation of the plaintiffs and their standing in the community (at 169G-H). The harm to their reputation was also explicitly borne in mind when the order with regard to costs was considered (at 169H-I). The attempt in the judgment to distinguish this case completely from 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 (at 165D-H, 166H, 167E). Non-compliance with the rules of natural justice seems to have been incorporated by the court into the concept of unconstitutional conduct (at 165G, 166G), or, alternatively, these rules might in this instance have been enacted into the constitution of the club. Although there might often be a limited measure of acceptability in such an approach, it tends to obscure the issue that really has to be decided. The question is not whether the members have been expelled from the club in an unconstitutional manner but whether the consequential harm to their personality interests is unlawful under the circumstances. It is quite conceivable that an unconstitutional expulsion, even accompanied by a seriously defamatory and insulting innuendo, might for the purposes of an action based on that insult and defamation be justified. Such an expulsion will remain 'unlawful' in the sense that the plaintiffs could avail themselves of certain remedies. However, as far as defamation or another form of iniuria is concerned, there could nevertheless be a valid defence ofjustification. An example would be a case where the accompanying innuendo is the truth and the publication of it is in the public interest. Whereas the facts implied by the innuendo might not warrant an expulsion in the particular instance, the unconstitutionality of the expulsion will not necessarily exclude all defences justifying the publication of those facts. ('Justification' is used here in the general sense of 'excluding unlawfulness'.)

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