Flynote: CIVIL PROCEDURE – Special plea of prescription – STATUTE – The Prescription Act 68 of 1969 – acquisitive prescription – meaning of the word ‘debt’ as employed in the Prescription Act. Summary: The plaintiff sued the defendant for an order compelling her to sign documents of transfer of landed property that the plaintiff’s husband had purchased from the defendant in around 1996. In addition to pleading over on the merits, the defendant raised a special plea of prescription, alleging that the ‘debt’ sued for, arose more than 20 years ago and that the plaintiff’s claim had prescribed three years from the purchase of the property. It was argued that the plaintiff ought to be non-suited therefor. Held – the plaintiff did not have any right to acquisitive prescription in this matter as she had no title to the property in question. Held – that the plaintiff’s claim was not a ‘debt’ within the proper meaning to be ascribed to the word. It was further held that the word debt must be given a narrow meaning, related to payment of something that is owed or due such as money, goods or services. Held further – that the meaning of debt as extended in case law, ostensibly following the decision of the South African case of Desai v Rajendra Desai, to include an obligation to do something or to refrain from doing something was an incorrect reading of the judgment in Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd. Held further – that the application of a wide meaning to the word ‘debt’ in cases of prescription has the potential to exclude the rights of persons to access courts, hence the need to apply a restricted meaning. The special plea was accordingly dismissed with costs. ORDER
[24] Desai, to which Mr. Muluti referred and relied upon in his heads of argument, has recently come for trenchant criticism by the Constitutional Court of South Africa as having unduly extended the meaning of debt in a manner that is impermissible and more importantly, in one that is not supported by the decision in Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd, (Escom) on which it purported to rely for the extended meaning. [25] In Makate v Vodacom (Pty) Ltd, the Constitutional Court reasoned as follows on this matter at p 34 para 85-86: ‘[85] The absence of any explanation for so broad a construction of the word “debt” is significant because it is inconsistent with earlier decisions of the same Court that gave the word a more circumscribed meaning. In Escom the Appellate Division said that the word “debt” in the Prescription Act should be given the meaning ascribed to it in the Shorter Oxford Dictionary, namely: “1. Something owed or due: something (as money or goods or service) which one person is under an obligation to pay or render to another. 2. A liability or obligation to pay or render something; the condition of being so obligated.’ Escom was cited and followed in subsequent cases. It was also cited as authority for the proposition in Desai NO. [86] It is unclear whether the Court in Desai intended to extend the meaning of the word “debt” beyond the meaning given to it in Escom. If it did, it does not appear that this followed either from any submissions made to the Court by the parties or any issue arising in the case. Nor, if that was the intention, did the Court give consideration to the constitutional imperatives in regard to the interpretation of statutes in section 39 of the Constitution.’ [26] At para 93, the Constitutional Court concluded the treatise in the following manner on the wide meaning it found had been impermissibly given to the word “debt” by Desai: ‘To the extent that Desai went beyond what was said in Escom it was decided in error. There is nothing in Escom that remotely suggests that “debt” includes every obligation to do something or refrain from doing something apart from payment or delivery. It follows that the trial Court attached an incorrect meaning to the word “debt”. A debt contemplated in section 10 of the