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SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA

IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

CASE NO:  19825/14

In the matter between:

MOEKETSI GILBERT MOKAU                                                                                               Plaintiff

and

ESKOM HOLDINGS SOC LTD                                                                                              Defendant

J U D G M E N T

KEIGHTLEY, AJ:

[1] Tragedy struck the plaintiff in this matter, Moeketsi Gilbert Mokau (“Mr Mokau”), when he was a young boy of […..] years of age.  He is now an adult of [……..].

[2] In his particulars of claim, Mr Mokau avers that on 27 March 2004, being the day of the incident, he climbed a tree and came into contact with high voltage power lines running above it.  The incident happened in the Segothodi School area, Phuthaditjhaba, QwaQwa.

[3] Mr Mokau suffered severe electrical burn injuries as a result of the incident.  Unfortunately, these led to the amputation of his left arm and his right leg.

[4] Mr Mokau sues the defendant, Eskom Holdings SOC Ltd (“Eskom”), being the owner of the power cable in question, on the basis of Eskom’s alleged negligence in various respects.  The total quantum of Mr Mokau’s claim is R17 050 000. 00.

[5] In addition to denying liability on the merits, Eskom raised a special plea of prescription in response to Mr Mokau’s claim.  At the commencement of the trial the parties agreed on a separation of issues on the basis that the special plea would be dealt with as a separate and preliminary issue.  It is pa[.....]tly convenient to both parties and to the court that the matter be dealt with on this basis.  I have included a direction to this effect in my order.

[6] The special plea of prescription is straightforward in its terms.  It is pleaded as follows:

[6.1]                Mr Mokau was born on [……].

[6.2]                At the time of the incident, which occurred on 27 March 2004, he was [.....] years and [.....] months old.

[6.3]                Mr Mokau became an adult when he turned [……] on [……..] 2011.  This was by virtue of the coming into operation of section 17 of the Children’s Act 38 of 2005, on 1 July 2007.

[6.4]                The ordinary period of prescription for a debt of this nature is three years under the Prescription Act (“the Act”).[1]  In this case, but for Mr Mokau’s age, his claim would have prescribed on 26 March 2007.

[6.5]                However, section 13(1) of the Act makes provision for creditors who are minors.  It provides that-

“If-

(a)        the creditor is a minor … ;

…and

(i)        the relevant period of prescription would, but for the provisions of this sub-section be completed before or on, or within one year after, the day on which the relevant impediment referred to in paragraph (a) … has ceased to exist,

the period of prescription shall not be completed before a year has elapsed after the day referred to in paragraph (i).” (emphasis added)

[6.6]                But for the impediment of Mr Mokau’s minority, the period of prescription in respect of his claim would have been completed before the date on which he attained majority.

[6.7]                This means that in terms of section 13(1)(a) and (i), the period of prescription was completed a year after the day on which Mr Mokau became an adult, i.e. a year after [.....] 2011.

[6.8]                In the circumstances, Eskom pleads that Mr Mokau’s claim prescribed on 3 June 2012.

[6.9]                Summons in the action was served only on 3 June 2014, two years after the claim had already prescribed.  Eskom accordingly pleads that Mr Mokau’s claim falls to be dismissed on this basis.

[7] Mr Mokau filed a replication to the special plea in which he:

[7.1]                Admitted the factual averments regarding the dates of the relevant events set out in the special plea.

[7.2]                However, he denied that his claim had prescribed, placing reliance on section 12(3) of the Act, which provides that:

“[A] debt shall not be deemed to be due until the creditor has the knowledge of the identity of the debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care.”

[7.3]                Mr Mokau averred that he only became aware of his right to sue for and claim damages against Eskom in April 2014 when he met with his present attorney.

[7.4]                He averred further that he only became aware of the extent of the claim that he had against Eskom for purposes of finalising the summons in June 2014.

[7.5]                On this basis he contended that his claim had not prescribed, and that the special plea should be dismissed.

[8] The legal principles applicable in cases where a plaintiff places reliance on section 12(3) of the Act in defence of a special plea of prescription are well established.

[9] As far as the onus is concerned, this rests on the defendant who raises a plea of prescription.  Recently, in the matter of Macleod v Kweyiya,[2] the Supreme Court of Appeal confirmed that this is in accordance with well-established principles:

“This court has repeatedly stated that a defendant bears the full evidentiary burden to prove a plea of prescription, including the date on which a plaintiff obtained actual or constructive knowledge.”[3]

[10] The court went on to point out that the evidentiary burden shifts to the plaintiff once the defendant has established a prima facie case.[4]  It is recognised that the burden on the defendant to prove something that falls within the plaintiff’s peculiar knowledge may present difficulties for the defendant. However, the law takes cognisance of this.  As was stated in Gericke v Sack:[5]

“(I)t will at times be difficult for a debtor who pleads prescription to establish the date on which the creditor first learned his identity or, for that matter, when he learned the date on which the delict had been committed.  But that difficulty must not be exaggerated. It is a difficulty which faces litigants in a variety of cases and may cause hardship — but hard cases, notoriously, do not make good law. It is not a principle of our law that the onus of proof of a fact lies on the party who has peculiar or intimate knowledge or means of knowledge of that fact. The incidence of the burden of proof cannot be altered merely because the facts happen to be within the knowledge of the other party. See R v Cohen, 1933 T.P.D. 128. However, the Courts take cognisance of the handicap under which a litigant may labour where facts are within the exclusive knowledge of his opponent and they have in consequence held, as was pointed out by INNES J., in Union Government (Minister of Railways) v Sykes, 1913 A.D. 156 at p. 173, that less evidence will suffice to establish a prima facie case where the matter is peculiarly within the knowledge of the opposite party than would under other circumstances be required.

'But the fact that less evidence may suffice does not alter the onus which rests on the respondent in this case.’”

[11] In summary, then, the legal position is as follows.  The defendant bears the overall onus of establishing that the plaintiff’s claim has prescribed.  This includes the onus of establishing, in a case like the present, that the plaintiff acquired the requisite knowledge, yet failed to institute the claim within the prescriptive period.   If the defendant’s evidence is sufficient to establish a prima facie case in this regard, bearing in mind that less evidence than normal may suffice, then the evidentiary burden shifts to the plaintiff to provide evidence in rebuttal.  As will become apparent shortly, this latter principle bears significance for the present case.

[12] It is important to bear in mind that it is the evidentiary burden, and not the onus, that may shift from the defendant.  In its true sense, the onus determines which party will fail on a given issue if, after hearing all of the evidence, the court is left in doubt.[6]  In other words, it is the duty resting on a particular litigant of finally satisfying the court that he or she is entitled to succeed in his or her claim, or defence.[7]  Although the evidentiary burden may shift between the parties, the onus does not.

[13] In the matter before me, both parties accept and rely on these established principles in support of their respective positions.  The result of this is that as is so often the case in disputes like the present, the difficulty lies in applying these principles to the relevant facts.

[14] At the commencement of the hearing, Mr Redding for Eskom indicated that he did not intend calling any witnesses in support of Eskom’s case.  After considering his client’s position, Mr Machaba, for Mr Mokau, advised me that he would follow suit.  Consequently, both parties closed their cases and the matter was argued on the basis solely of oral argument, with reference to the pleadings.

[15] The result of this turn of events is that the case before me rests on a narrow issue, viz. whether or not Eskom has established a prima facie case that the claim has prescribed, including a prima facie case that Mr Mokau had the requisite knowledge to support his claim, yet failed to do so.

[16] Eskom’s case rests on the submission that a prima facie case can be inferred from an application of the established legal principles to the common cause facts and the pleadings of this case.  The effect of such an inference, says Eskom, is that the evidentiary burden shifted to Mr Mokau to show that he did not have the knowledge to support his claim until April 2014, and that in terms of section 12(3), his claim has not prescribed.  Eskom submits further that the effect of Mr Mokau’s election not to present evidence in support of his case is that Mr Mokau has failed to meet the evidentiary burden resting on him.  Therefore, Eskom’s prima facie case stands. Accordingly, so the argument goes, Eskom must be found to have satisfied the onus resting on it to establish that the claim has prescribed.

[17] Mr Mokau’s opposition to Eskom’s case rests on two fundamental assertions.  First, it is submitted on behalf of Mr Mokau that Eskom bears both the onus and an evidentiary burden.  It is submitted that the effect of this is that Eskom must produce evidence to establish even a prima facie case for prescription.  Eskom’s failure to do so is fatal to its case and, for this reason alone, so I understand the argument to run, Eskom’s plea of prescription must fail.

[18] The second assertion advanced on behalf of Mr Mokau is that even if Eskom’s failure to adduce evidence is not in itself fatal, the facts of the case do not support the inference Eskom requests the court to draw.  In other words, the facts do not establish a prima facie case that Mr Mokau had the requisite knowledge to institute his claim on or before 3 June 2012. Consequently, there was no shifting of an evidentiary burden of rebuttal onto Mr Mokau.  In these circumstances, it is submitted that no adverse inference can be drawn from his failure to adduce evidence.  In this regard, Mr Machaba placed substantial reliance on the Mcleod case, which, he submitted, should guide my approach in this matter.

[19] It is apparent from these two opposing approaches that the key issue for me to determine is whether Eskom has succeeded in making out a prima facie case for prescription.  It seems to me that if I find that it has done so, then it must follow that given the absence of any evidence in rebuttal by Mr Mokau, Eskom’s plea of prescription will succeed.  On the other hand, if I find that Eskom has failed to establish a prima facie case, that is the end of the matter, and I must dismiss the special plea.

[20] I turn then to consider whether Eskom has established a prima facie case for prescription.  It is important to note that there is no dispute between the parties that, but for Mr Mokau’s reliance on section 12(3) of the Act, his claim would have prescribed on 3 June 2012.  In other words, there is no dispute about the impact of Mr Mokau’s minority on his case.  Although he was a minor until [.....] 2011, Mr Mokau accepts that, save for the application of section 12(3), his claim would have prescribed a year after this date.  His case is that the effect of section 12(3) is that the prescription period only commenced running at the earliest in April 2014, when he acquired knowledge of his claim from his lawyers.

[21] Consequently, the critical question that arises is whether Eskom has established a prima facie case that, despite Mr Mokau’s assertions to the contrary, he did have the requisite knowledge to enable him to institute his claim on or before 3 June 2012, being the termination date of the prescriptive period laid down in section 13(1)(a) and (i) of the Act.

[22] This requires consideration of the principles governing the question of when a debt begins to run for purposes of prescription.  It also requires consideration of the level of knowledge the law deems sufficient for the prescriptive period in respect of a claim to commence running.

[23] For purposes of prescription, a “debt” means a claim in the broad sense.[8]  It begins to run when the entire set of facts that a creditor must prove to succeed in his or her claim is in place.  In other words, the relevant prescriptive period commences running when everything has happened which would entitle the creditor to institute an action to pursue his or her claim.[9]

[24] Section 12(3) of the Act introduces a departure from the ordinary rules of prescription in order to deal with the extraordinary situation of a creditor who does not have knowledge of the identity of the debtor or of the facts giving rise to his or her claim.   In that case, even though the relevant factual events have occurred to establish a claim, if the creditor lacks the necessary knowledge, the prescriptive period will not begin to run.

[25] It is well established that section 12(3) does not envisage that a creditor must have full and comprehensive knowledge of the debtor and of the claim before the prescriptive period will begin to run.  On the contrary, it is sufficient if the debtor has knowledge of the minimum or material facts necessary to support the claim, even though he or she may not be aware of the full ex[.....]t of his or her legal rights. The prescriptive period will not be postponed in terms of section 12(3) to enable the creditor to gather evidence or to solicit expert opinions. [10]

[26] The nature of Mr Mokau’s claim appears from his particulars of claim.  In short, he pleads that he suffered extensive burns and other injuries when he came into contact with overhead power supply cables while he was climbing a tree.  He received immediate medical treatment, including hospitalisation for a month.  While he was hospitalised he underwent an amputation of an arm and a leg.  This occurred during 2004.  The incident caused him pain and suffering, disablement and disfigurement and a loss of amenities of life.  He will require ongoing medical and related treatment to deal with his injuries.

[27] Mr Mokau seeks delictual damages from Eskom as the owner and controller of the power cables responsible for the incident.

[28] These, then, are the minimum or material facts necessary to establish Mr Mokau’s claim.  It seems to me that, given the nature of the incident and of Mr Mokau’s claim, in the ordinary course, these facts would have been apparent from the time the incident happened, or within a relatively short period thereafter.  Mr Mokau’s injuries and their cause were clearly identifiable.  Boys should not be placed in danger by overhanging power cables when they carry out traditional boyish pursuits, like climbing trees.  If they are placed in danger, and suffer harm as a result, then common sense dictates that the power supplier, Eskom, may have a case to answer.

[29] Are these pleaded facts sufficient, as Eskom contends, to establish a prima facie case that Mr Mokau, or his guardian while he was a minor, had knowledge of his claim and of the identity of the debtor to enable him to institute proceedings on or before 3 June 2012?

[30] Mr Mokau submits that it is not sufficient.  More is required of Eskom to establish a prima facie case of knowledge.  It cannot rely on the case as pleaded.  It is obliged to present evidence to establish that Mr Mokau had the requisite knowledge that would have allowed him to institute his claim by 3 June 2012.  Without that evidence, it is submitted that Eskom’s defence of prescription falls at the first hurdle.

[31] I accept that there may be many cases where it will be fatal for a defendant relying on a plea of prescription to fail to put up evidence to support its case.  Prescription is invariably raised as a special plea, rather than by way of an exception.  This is precisely because it is a defence that is fact-based, and provision must be made to determine the relevant facts.

[32] However, in my view, this does not mean that a defendant invariably is required to produce evidence in order to meet the evidentiary burden resting on him or her to establish a prima facie case for prescription.  It also does not mean that in the absence of evidence on behalf of a defendant, the plea of prescription of necessity must fail.  Whether evidence is required to meet the evidentiary burden of establishing a prima facie case of prescription, and the consequences of not doing so, will depend on the facts of each case.

[33] In the present case, as I indicated earlier, the material facts supporting a claim against Eskom, as pleaded in the particulars of claim, are of such a nature as to be overtly apparent in the ordinary course from the time that the incident giving rise to the alleged delict occurred.    In this regard, the facts of the case are quite unlike those that arose in Mcleod.  In that case, the alleged delict was the negligent settlement of a damages claim by the defendant, an attorney who had acted on behalf of the plaintiff, through her guardian, when the plaintiff was a young child.  As a result of the settlement, the plaintiff received a substantial under-recovery in damages.  The plaintiff averred that she had no reason to suspect that there had been any negligence on behalf of the defendant in reaching the settlement with her guardian until many years later, when she fortuitously came across more information about how the settlement had been reached.  It was this information that indicated to the plaintiff, for the first time, that the defendant may have been negligent in his settlement of her earlier claim.

[34] Unlike the present case, the material facts of the claim in Mcleod where inherently covert until later information brought them to light.  They would not have been apparent to the plaintiff when the alleged delict was committed.   Some new knowledge was required to dislodge the plaintiff’s reasonable belief that the settlement was appropriate and properly protected her interests.[11]  For this reason, the court in that case concluded that the defendant had failed to establish a prima facie case for prescription.  It held that there was no case for the plaintiff to rebut, and no adverse inference could be drawn from her failure to lead any evidence in rebuttal.[12]

[35] In my view, there are material differences in the facts of the Macleod case, and those of the case before me.  These differences demonstrate that Mr Mokau’s reliance on the Mcleod case is misplaced.

[36] The incident giving rise to Mr Mokau’s claim, as well as the injuries he suffered, were patently obvious from the time they occurred.  Logic dictates that his guardian and, subsequently, Mr Mokau himself when he reached adulthood on [.....] 2011, would have had sufficient knowledge to pursue a possible claim against the person responsible for the power cable.

[37] Of course, peculiar circumstances may have existed to force a departure from this logical inference.  Mr Mokau may have lived in complete rural isolation, without access to any form of social or legal assistance.  He may have been shunned by his guardian and been given none of the assistance required to pursue a possible claim.  However, this is all speculation.  The point is that whatever peculiar reasons there may have been for Mr Mokau to wait until April 2014 to seek legal advice, these reasons lay within Mr Mokau’s particular sphere of knowledge.

[38] In these circumstances, it is difficult to conceive of what evidence Eskom could have presented to establish more of a prima facie case than the case that already appeared from the particulars of claim.  The principle highlighted in Gericke v Sack, cited above, that less evidence than normal will be sufficient to establish a prima facie case where the matter is peculiarly within the knowledge of the opponent seems to me to be particularly appropriate in this case.

[39] Without evidence from Mr Mokau as to the reasons for him waiting for so long to approach a lawyer the court is left in the dark.

[40] In presenting Mr Mokau’s case in oral argument before me, Mr Macaba sought to rely on Mr Mokau’s responses to Eskom’s request for further particulars to Mr Mokau’s under rule 21 of the Uniform Rules of Court.  The responses indicated that Mr Mokau had not previously consulted, nor had he been approached by, other attorneys concerning his claim; his guardian had made inquiries with the police in an effort to report the incident but had not been offered any assistance or given any information; and Mr Mokau had been referred for legal advice to the offices of his present attorneys by a local doctor who practices in the area in which he resides.

[41] Mr Machaba submitted that these responses placed a duty on Eskom to lead evidence to contradict these responses in order to establish a prima facie case of knowledge on Mr Mokau’s part.

[42] One of the difficulties with this submission is that responses to a request for further particulars for purposes of trial under Rule 21 do not constitute pleadings. [13]   It is trite that they do not constitute evidence. They give an indication to an opposing party of the nature of the evidence the responder intends to lead at trial.  However, they do not take the place of evidence.  Where, as in a case like the present, the responding party elects not to lead that evidence, the responses on their own cannot serve to add ballast to the pleadings as they stand.  In other words, in my view, they can’t take Mr Mokau’s case in opposing the special plea further than it is set out in the replication.

[43] In any event, even if reference is had to the responses, they do not shed sufficient light on what the peculiar circumstances were that led to Mr Mokau to seek legal advice only in April 2014.  All that the responses show is that Mr Mokau first sought legal advice after a doctor referred him to his present attorneys.  The responses are significantly lacking in details of the dates when Mr Mokau’s guardian allegedly approached the police, and when he was allegedly advised by the doctor to consult his attorneys.  This paucity of detail is important in a case where, as I have already discussed, the material facts of the claim ordinarily would have been evident from the word go. 

[44] In my view, therefore, Mr Mokau’s responses to the request for further particulars do not have the effect of dislodging the case made out in the pleadings.

[45] Mr Mokau also sought to place reliance on the case of MEC for Education, KwaZulu-Natal v Shange. [14]  In Shange, the Supreme Court of Appeal found that there was an innocent explanation for the plaintiff’s delay in instituting delictual proceedings against the Department of Education for the injuries he suffered as a result of being hit in the eye by a teacher when the plaintiff was 15 years of age.  The court pointed to the fact that the plaintiff was a rural learner, and that he could not reasonably have been expected to know that not only the teacher, but also the department, could be held liable for his injuries.  It was only when he acquired this knowledge later that prescription would have commenced running in terms of section 12(3).[15]

[46] However, in Shange, the relevant facts explaining the plaintiff’s circumstances and the reasons for the delay in instituting his claim were pleaded and contained in evidence before the court.  The court did not have to speculate as to why the plaintiff had delayed.

[47] For this reason, I cannot accept Mr Machaba’s request, on behalf of Mr Mokau, that I should reach the same conclusion that was reached in Shange.  The facts of the cases are different.  The only pleaded facts that are before me concerning Mr Mokau’s delay are to the effect that he did not know that he had a claim against Eskom until he consulted his attorney in April 2014.  There are no pleaded facts, and no evidence giving any indication of what peculiar circumstances led to Mr Mokau consulting a lawyer only at that stage.

[48] As I indicated earlier in my judgment, the narrow issue before me is whether Eskom has satisfied its burden of establishing a prima facie case that Mr Mokau had the requisite knowledge under section 12(3) of the Act to institute his claim on or before 3 June 2012.

[49] Eskom did not present any evidence in support of its case.  I am of the view that in the particular circumstances of the present case, this is not fatal to Eskom’s plea of prescription.

[50] From the facts relied on by Mr Mokau in his particulars of claim it is clear what incident gave rise to the claim, when it occurred, what caused it, who is liable, and what damages have been suffered by Mr Mokau.  The nature of the claim as pleaded is such that in the ordinary course knowledge of these material facts would have been available to Mr Mokau’s guardian, and to Mr Mokau from the time the incident occurred.

[51] From this it can be inferred, at a prima facie level at least, that Mr Mokau had the requisite knowledge to enable him to institute his claim within one year of him attaining his majority, i.e on or before 3 June 2012.  The bald averment in Mr Mokau’s replication, to the effect that he only acquired knowledge of his claim in April 2014 when he consulted his attorney, is insufficient to prevent this inference from being drawn.  If there were peculiar circumstances to explain Mr Mokau’s seeking legal advice so long after the fact, then Mr Mokau should have pleaded these facts, and placed the necessary evidence before the court.  He did not do so.

[52] I conclude, therefore, that Eskom has satisfied the burden resting on it to establish a prima facie case that Mr Mokau had the requisite knowledge, in terms of section 12(3) of the Act, to institute his claim on or before 3 June 2012.   Having done so, the evidentiary burden shifted to Mr Mokau to rebut Eskom’s prima facie case.  Mr Mokau presented no evidence in rebuttal.  Indeed, his opposition rested solely on the contention that Eskom had failed to make out a prima facie case.  This being so, Eskom’s prima facie case stands unchallenged, and must prevail.  Mr Mokau’s reliance on section 12(3), and his alleged absence of knowledge of his claim must be dismissed.

[53] As I indicated earlier, both parties accept that but for Mr Mokau’s reliance on section 12(3) in opposing the special plea of prescription, his claim would have prescribed on 3 June 2012.  It is common cause that summons was issued two years later, well outside the prescription period. 

[54] In the circumstances, I find that Eskom has satisfied the onus resting on it and is entitled to an order upholding its special plea of prescription.

[55] I make the following order:

1.         In terms of Rule 33(4), it is directed that the defendant’s special plea of prescription be determined as a separate question.

2.         The defendant’s special plea of prescription is upheld.

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

__________________________________________

                                                                            R  KEIGHTLEY

ACTING JUDGE OF THE HIGH COURT OF SOUTH AFRICA

GAUTENG LOCAL DIVISION, JOHANNESBURG

Date Heard:                                 10 June 2015

Date of Judgment:

Counsel for the Applicants:         A Redding SC         

Instructed by:                              Norton Rose Fulbright South Africa Inc

Counsel for Respondent:            T Machaba

Instructed by:                              Jerry Nkeli & Associates Inc

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