REPUBLIC OF NAMIBIA

IN THE HIGH COURT OF NAMIBIA, NORTHERN LOCAL DIVISION, OSHAKATI

JUDGMENT

Case no: I 95/2015

In the matter between:

ERADIUS MOKAXWA PLAINTIFF

and

LIKIUS IIKELA DEFENDANT

Neutral citation: Eradius Mokaxwa v Iikela (I 95/2015) [2016] NAHCNLD 03 (29

January 2016)

Coram: CHEDA J

Heard: 19 October 2015; 16 November 2015

Delivered: 29 January 2016

Flynote: A special plea does not deal with merits but brings to light prevailing
circumstances which are not apparent which if proved have the effect of halting an
action by plaintiff. A debt as defined under the Prescription Act 68 of 1969 has a
general and wide meaning which includes a vindicatio.

Summary: Plaintiff and defendant entered into a verbal contract wherein they were
agreed to swap cars. This did not materialise. Plaintiff however fulfilled his part of
the contract but defendant did not. Defendant was in possession of Plaintiff’s motor
vehicle. Plaintiff instituted proceedings against defendant to recover the said motor
 2

vehicle but this was after the expiry of three years to which defendant raised a
special plea. The special plea was upheld.

ORDER

The special plea is upheld and plaintiff’s claim is dismissed with costs.

JUDGMENT

CHEDA J:

[1] This is an application for a special plea. Plaintiff issued summons out of this
court wherein he demanded the return of his motor vehicle being a white BMW 316
series Registration no. N 15179 SH valued at N$36000-00 which was in possession
of the defendant alternatively payment of its equivalent value. This action was
defended by a notice to defend filed on the 28 May 2015.

[2] The background of this claim is that the two parties entered into a verbal
agreement in April 2009 which agreement consisted of the following express and/or
implied terms;
a) that defendant would deliver a BMW 316 series whose particulars are
stated (supra);
b) that defendant would deliver a Mazda Bakkie owned by the defendant;
c) that ownership of the said vehicles would pass on the date of delivery and
that plaintiff would pay the sum of N$17000-00 being a top-up for the value of
the Bakkie.

[3] It is not clear what happened thereafter, but, however, it is not in dispute that
defendant took delivery of the BMW motor vehicle. The parties were subsequently
locked up in some dispute as to the fulfilment of some terms and conditions of their
 3

contract. It is this dispute which has led to the issuance of summons and the matter
being heard by this court.

[4] Defendant through his legal practitioner Mr. Greyling filed a special plea for
exception on the basis that the plaintiff’s claim is prescribed in terms of the
Prescription Act 68 of Act 1969 of which sections 10 (1) and 11 determine the
relevant law applicable in matters where a lapse of a period of three years has
occurred.

[5] In our law a special plea is raised with an aim of setting up a special defense
which has the effect of delaying the proceedings, abate or quash the action
altogether. Therefore, a special plea does not deal with the merits, but, brings to
light some not so apparent prevailing circumstances which have an effect of halting
the action kicked in by plaintiff. A special plea has the following ingredients as
requirements:

a) it will not appear ex facie the declaration;

b) it must be established by the introduction of fresh facts from outside the
declaration; and
c) that these facts must be established by evidence in the usual way.

[6] There is a difference between a special plea and an exception as the former
is hinged on the factors that are not apparent on the declaration while the later deals
with what does not appears on the face of the declaration and the excipient is thus
confined within the four corners of the declaration. He, cannot rely on any evidence
that is outside the declaration. In Herbestein and our Van Winsen, The Civil Practice
of the Superior Courts in SA 3rd ed at p 32 the learned authors state:

“the essential difference between a special plea and an exception is that in the case
of the latter the excipient is confined to the four corners of the declaration. The
defence which he raises on exception must appear from the declaration itself; he
must accept as true the allegations contained therein and he may not introduce any
fresh matter. Special pleas, on the other hand, do not appear ex facie the
declaration. If they did then the exception procedure would have to be followed.
Special pleas have to be established by the introduction of fresh facts from outside
 4

the circumference of the declaration and these facts have to be established by

evidence in the usual way.”
See also Viljoen v Federated Trust Ltd 1971 (1) SA 750 at 760.

[7] A special plea according to the learned authors is often referred to as a

peremptory exception in the sense that, if established, it renders the claim
permanently unenforceable.

[8] Plaintiff’s claim is based on the principle of rei vindicatio for the return of the
BMW alternatively payment in the sum of N$36000 being the value of the said motor
vehicle. This principle refers to the recovery of property by the owner from any
person in possession of it.

[9] Mr. Greyling for defendant has argued that the claim for rei vindication was
the basis of the summons that was issued during April 2009 and as such it is
prescribed. It is his view that the claim is in essence a vindication that constitutes a
debt and as such falls under the definition of debt under the Prescription Act,
hereinafter referred to as “the Act”.

[10] The issue that falls for determination in my opinion is whether or not the claim
lodged by plaintiff is a debt. According to the Chambers Dictionary, Chambers
Harrap Publishers Ltd 1993, a debt is described as “ debt… an amount owed by one
person to another; what one becomes liable to do or suffer; a state of obligation or
indebtedness; duty.” The word debt was defined in Evins v Shield Insurance Co Ltd
1979 (3) SA 1136 at 1141 F-G by King J who stated:

“the word “debt” in the Prescription Act must be given a wide and general meaning
denoting not only a debt sounding in money which is due, but also, for example, a
debt for the vindication of property.”

[11] The above definition in Chambers Dictionary in amplified by the finding

interpretation in Evins case. It is therefore clear that this seemingly general meaning
has showily found its way into our jurisprudence. The Act does not define the word
debt. However, it has been held on numerous occasions that the word debt now
enjoys a wide and general meaning and, it, therefore, includes an obligation to do or
refrain from doing something. This was the position adopted in Electicity Supply
 5

Commission v Stewarts and Lloyds of SA 1981 (3) SA 340 (A) at 344 F-G and Desai
NO v Desai 1996 (1) SA 141 (A) at 146 H-J. It should be borne in mind that the
issue of “a debt” under the Prescription Act is given the same interpretation in South
Africa as is in Namibia see, Levinton Wadson v De Klerk’s Trustee 1914 CPD685 at
691. The definition of debt was recently interrogated by our courts in Ongopolo
Mining Limited v !Uris Safari Lodge and Others 2014 (4) NR 290 (HC) where
Damaseb JP at para 39 extensively dealt with the meaning of debt under the
Prescription Act when he stated:

“The following principles can be distilled from an examination of the case law prior to
1990 as regards the meaning and proper scope of ‘a debt’ arising under s 10 of the
Prescription Act:
(a) the word ‘debt’ has a wide and general meaning and includes an obligation to do
something or to refrain from doing something;
(b) At the core of a ‘debt’ is a right and a corresponding obligation;
(c) The concept of ‘debt’ has a proprietary meaning;
(d) A debt does not only exist when the debtor is required to do something, as such a
construction is too limiting;
(e) The exercise of a right may call for no action on the part of the “debtor” but
merely to submit himself or herself to the exercise of the right;
(f) A debt assumes both a passive and active meaning.”

[12] From the authorities referred to above, it has become clear that our law has
embraced this wider and general meaning. I would like to add that a debt is an
obligation which remains hanging on the debtors head and will stubbornly cling on it
until it is removed by being made good by the debtor. Such obligation now gropes in
many aspects of the commercial world. Vindication not excepted.

[13] Our courts are persuaded by the South Africa decisions of which in the matter
of Radebe v Government of the Republic of South Africa & Others 1995 (3) SA 787
at 804 B-C (N) where Booysen stated:

“While ‘debt’ is not defined in the Act, it has to be given a wide and general meaning.
(HMBMP Properties (Pty) Ltd v King 1981 (1) SA 906 (N) at 909 A-B.) There is no
reason why a claim for vindication of property movable or immovable should not be
included.”
 6

[14] It is clear from the authorities referred to above that there was a debt in
existence and such debt is governed by the established principles applicable thereto
as laid down, supra. Such debt remains as an obligation until its discharge by the
debtor.

[15] Ms. Shailemo for plaintiff applied for condonation for non-compliance with
rules regarding the late filing of her papers. She stated that she could not file her
papers timeously as her father passed away. This reason is absolutely accepted by
the court and Mr. Greyling also saw sense in it and did not oppose. This therefore
merits sufficient reason to warrant the granting of condonation. In addition, thereto,
the delay and the degree of delay is reasonably short.

[16] With regards to the merits it was her argument that an obligation for specific
performance is not a debt for the purposes of the Act. She referred the court to the
matter of Staegemann v Langenhaven & others 2011 (5) SA 648 (wcc). The
principle laid down in that case dealt with a fraudulent transaction which is not the
case in casu, or at least it is not so alleged.

[17] I am tempted to delve into this issue further and state that even if there was
fraud which resulted in the possession of the car, the said fraud is a single act which
constitutes plaintiff’s cause of action and does not amount to a continuous wrong
which would have interrupted the prescription period.

[18] Above all, South Africa authorities are merely persuasive, one has to,
therefore, be highly persuaded to follow them and that this court can do so in the
absence of authorities from its own jurisdiction. The correct legal position in this
jurisdiction was adopted in Ongopolo Mining Limited (supra) wherein, it was stated
that an obligation to or not to do something is a debt for the purposes of the Act
under discussion

[19] It admits of no doubt that defendant is in possession of plaintiff’s motor vehicle

and has been in that possession since April 2009. Again it admits of no doubt that
the agreement fell through. In light of this development plaintiff was within his right
to take corrective legal steps to assert his rights in the said motor vehicle which he
did not do.
 7

[20] Prescription of a debt begins to run from the time the creditor has knowledge
of the problems in the contract. It is at that time that he/she should take positive
steps to enforce its rights. Plaintiff did not act timeously to assert his rights in this
matter.

[21] The test which is applied to the creditor’s action or omission is that of a
reasonable man. He must be judged on the steps which a reasonable man would
have taken or how reasonable his conduct is, see Leketi v Tladi N.O. 2007 (6) SA
313 (SCA). I do not agree with Ms. Shailemo that this claim is not a debt as
envisaged in the Prescription Act. In her argument she referred me to the cases of
Circuit Breakers Industries Ltd v Numsa Obo Hadobe & others (JR 1958/08
ZALCJHB 286 (1 November2013) and Staegemann v Langenhaven & Others 2011
(5) SA 648 (WCC) . These cases have already been extensively interrogated by this
court wherein it disagreed with their decisions. I have equally examined them and I
am highly persuaded by our own decisions which are at total variance with the South
Africa authorities which remain persuasive in the absence of our own authorities.
The most recent decision is that of Ongopolo Mining Limited (supra).

[22] In casu the prescription period started running from in April 2009 and there is
no evidence of its interruption and in light of that the only conclusion is that
defendant’s argument is on firm ground. The law does not come to the assistance of
the sluggish, but, to the assertive.

[23] This claim being one for vindication qualifies as a debt within the meaning of
debt in the Prescription Act and the current binding authorities.

[24] In the result this is the order:

The special plea is upheld and plaintiff’s claim is dismissed with costs.
 8

--------------------------------
M Cheda
Judge
 9

APPEARANCES

PLAINTIFF: T. Shailemo
Of Inonge Mainga Attorneys, Oshakati

DEFENDANT: J. Greyling (Jnr)

Of Jan Greyling and Associates, Oshakati