CIVIL PRACTICE &

PROCEDURE

Prescription
& Costs

S
 LECTURES 6

 Prescription (General)
 The Prescription Act, 68 of 1969.
 All prescriptions from 1 December 1970.
 If required period expired prior to commencement of Act:

 Prescription Act 18 of 1943 applies.

 If prescription began to run under 1943 Act , and expired after

it’s repeal?

 1943 Act applies to period prior to repeal, 1969 Act to

remainder of the period.
 Acquisitive Prescription (Under the 1969 Act) – Chapter I of Act
 Section 1 - A party claiming acquisitive prescription of a movable or immovable object under this

Act, must allege and prove:

 Civil possession (i.e. as if he/she was the owner);

 Pienaar v Rabie 198 (3) SA 126 (A) at 134
 Minister van Landbou v Sonnendecker 1979 (2) SA 944 (A)
 Minnaar v Rautenbach [1999] 1 All SA 571 (NC)

 Possession for an uninterrupted period of 30 years, or for a period which, together with any

period for which the thing was possessed by any predecessors in title, constitutes an

uninterrupted period of 30 years;

 Cf Barker NO v Chadwick 1974 (1) SA 361 (D)

 That the possession was exercised openly;

 Cf Bisschop v Stafford 1974 (3) SA 1 (A)

 Adverse user
 Cf Swanepoel v Crown Mines Ltd 1954 (4) SA 596 (A)
1. Requirements:

Welgemoed v Coetzer and Others 1946 TPD 701 te 712-713:

"The authorities appear to lay down that the possession required of the claimant in prescription
is the full juristic possession - possessio civilis - the holding or detaining of the corporeal thing
with the intention of keeping it for oneself (Voet 41.2.1). Both the physical act of detention and
the mental state must concur (Voet 41.2.10); as to the latter, it is, I think, sufficient to quote Voet
(44.3.9, Krause's translation at 67)
'for the completion of the statutory prescription of the longest period of a third of a
century, the better opinion is that neither title nor good faith is required and that the only
consideration is rather, whether one has been in peaceful and continuous possession for
that space of time; or, and this holds good also for acquiring dominium of corporeal things, he
has as it were suffered no disturbance on the part of the true owner during the whole of the
period in which he had possession of another's property, with the C intention of holding the
thing as its own, and did not by any act recognise him as owner.'
The limited possessio naturalis of a lessee, commodatarius or the like, is not
sufficient, for each of these persons lacks the intention of acquiring and keeping the property for
himself.“

 Concepts of nec vi, nec clam, and nec precario was discussed in Bisschop v Stafford
(supra):

"For present purposes nec vi may be understood as 'peaceably', and nec clam as 'openly' - 'so
patent that the owner, with the exercise of reasonable care, would have observed it‘.
Nec precario 'does not mean without permission or without consent in the wide sense... but
"not by virtue of a precarious consent" or in other words "not by virtue of a revocable
permission" or "not on sufferance"‘, a precarium being 'something of which the use is granted at
the request of the grantee for so long as the grantor is willing to allow him to have it‘ (Malan v
 Acquisitive Prescription (Under the 1969 Act)
 Prescription must be pleaded specifically! Chapter 1 of Act
 State land?
 As from 28 June 1971, state land is not capable of being acquired by any

persons by means of prescription.

 Servitudes (Chapter II of Act):
 Sections 6 to 9.
 Principles relating to acquisition of servitudes by prescription are very similar

to those relating to acquisition of ownership.

 Obvious difference: Instead of proving possession, must show that claimant

has exercised the rights and powers that a person who has such a right to a

servitude, is entitled to exercise.

 Involuntary loss of possession – Section 2
 prescription shall not be interrupted by involuntary loss of possession if possession is
regained at any time by means of legal proceedings instituted within six months after such
loss for the purpose of regaining possession, or if possession is lawfully regained in any
other way within one year after such loss.

 Completion of prescription postponed in certain circumstances – Section 3

 minor / insane, / person under curatorship / is prevented from interrupting prescription
 the person in favour of whom the prescription is running is
• outside the Republic / is married to the person against whom the prescription is running/ is a member
of the governing body of a juristic person against whom the prescription is running.
 the period of prescription would, be completed before or on, or within three years after,
the day on which the relevant impediment referred to in paragraph (a) or (b) has ceased to
exist,
THEN
prescription shall not be completed before the expiration of a period of three years
after the day referred to in paragraph (c).

 Judicial interruption of prescription – Section 4

 interrupted by the service on the possessor of the thing in question of any process
whereby any person claims ownership in that thing.
 Interruption shall lapse if person claiming ownership does not successfully prosecute his
claim to final judgment or if he abandons the judgment or the judgment is set aside
 Extinctive Prescription (Under the 1969 Act)

 Chapter III of Act provides for extinction of debts by prescription, specifically S.10

 Effect of prescription:

 A debt is extinguished after lapse of period applicable in respect of debt;

 Debt cannot be revived, even i.c.o. interruption of prescription by

acknowledgment of liability, unless this amounts to a new undertaking.

 Lipschitz v Dechamps Textiles GmbH 1978 (4) SA 427 (C)

 A prescribed debt cannot be set off against any claim.

 BUT: Payment of a prescribed debt is valid, and cannot be reclaimed.

 Procedure: A court may not of its own motion take notice of prescription. (Section

17)

 In action proceedings: Raised by way of plea or special plea (not exception).

• Why? Because the Plaintiff may have valid answer (eg. Delay / interruption)

• Murray & Roberts Construction (Cape) (Pty) Ltd v Upington Municipality 1984 (1) SA 571 (A)
 A Debtor (and presumably a Creditor) may raise by way of action, or application for

a declaratory order, the question of whether a debt has prescribed.

 Can also be raised by 3rd party who has a real interest in the claim (eg. Surety)

 Debt is extinguished:

 A debt is anything that is owed or due;

 Debt can be money, goods or services obliged to render to another;

 Includes debts to state or of statutory origin.

 When does prescription start to run? See Section 12

 The person who raises prescription must allege and prove date of inception of period of

prescription;

 General rule: Prescription begins to run as soon as debt is due;

 Must be immediately claimable in legal proceedings – must be required to perform immediately.

 Debts (ex contractu, ex delicto or other) are not deemed due until creditor has knowledge of

identity of debtor and facts giving rise to debts. (reasonable care to acquire knowledge)
 Person raising prescription must prove date on which Creditor acquired knowledge.

 Or should have known had he taken reasonable care.

 Period of prescription: (Section 11)

 General rule: 3 years

 Exception 1 – 30 years

 Debts secured by mortgage bonds

 Judgment debts

 Debts iro taxation or levies

 Debts owed to state (share of profits iro right to mine minerals or other

substances.

 Exception 2: All other debts to state – 15 years.

 Exception 3: Debts arising from negotiable instruments / notarial contracts – 6

years.

 Exception 4: Claim for contribution ito Apportionment of damages Act.

 DELAY IN PERIOD OF PRESCRIPTION:
• Onus on creditor to allege and prove prescription was delayed in circumstances

• See Section 13 for circumstances where completion of prescription can be delayed

• Eg. Minor / under curatorship

• Van Staden v Venter 1992 (1) SA 552 (A)

 INTERRUPTION OF PRESCRIPTION BY AOD – Section 14:

 Onus on creditor to allege and prove either of the following:

 Express or tacit acknowledgment of liability by Debtor or his/her agent; OR

 Service on Debtor of any process whereby Creditor claims payment of debt.

 Effect of an amendment if it introduces another cause of action that might have been

already prescribed?

See: Cordier v Cordier 1984 (4) SA 524 (C)

Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd 2004 (3) SA

160 (SCA)
 Costs

 GENERAL:

Purpose of costs award is to indemnify successful party for expense he/she unjustly had
to incur by instituting or defending matter.

 FIXED RULES FOR AWARDING COSTS?

• General principle: Successful party entitled to costs.

• BUT basic rule = remains in the discretion of the court. Thus no fixed common law
principles or rules.

• Should be an order that is just in the circumstances.

 GENERAL CONSIDERATIONS:

• Only courts with jurisdictions re the merits has jurisdiction iro costs;
• Court has discretion (basic rule), which must be judicially exercised (not arbitrarily);
• Exercise of court’s discretion – see:
De Villiers v De Villiers 1965 (2) SA 884 (C) 890
• General rule: Costs follow event – thus successful party entitled to costs
 Court further has a discretion on which scale to allow costs

 Court can even under certain circumstances deprive a successful

party of costs:
• Unconscionable or excessive demands/ claims
• Nominal damages
• Failure to limit or curtail proceedings
• Unjustified use of motion proceedings / failure to except
• Misconduct (giving false evidence, dishonesty in pleadings, attempts
to bribe, misleading court, recklessly charging fraud, bad faith
conduct, etc.)
• Vexatious action or defence
• Causing unnecessary litigation
• Reasonable conduct by unsuccessful litigant
• Negligence of successful party
• Where a party only achieves technical success
• Conduct of legal practitioners (irresponsible)
• Eg. Burdens court with unnecessary papers etc
• Disregard for rules
 DIFFERENT TYPES OF COST SCALES

Party and party costs vs Attorney and client costs

Distinction: An attorney is entitled to remuneration for his services

whether he succeeds or not. If he succeeds, part of his costs are paid
by the unsuccessful party and these are party and party costs. The
balance constitutes attorney and client costs payable by his client.

 Attorney and client costs

DEFINITION:

What an attorney can recover from his own client for professional
services rendered and disbursements incurred on behalf of client,
whatever the outcome of the proceedings.

The object of such a cost order is to reimburse a successful party and /

or disapproval of the conduct of the other party.
• In special circumstances only
• Or by agreement, then court will confirm same
• Aim: to discourage frivolous, vexatious, malicious or reckless
litigation
• Dishonesty, fraud, or other acts of misconduct
• Litigant’s contemptuous attitude towards court
• Sometimes if delay or postponement is unnecessarily caused by
litigant
• Grave defect relating to proceedings
• Deplorable attitude during proceedings

 Attorney and own client costs

• “intermediate category of taxation”?

• An award on attorney and own client scale is in reality no more
than an indication to the Taxing Master that he should attempt to
be more generous to the winning party than would otherwise have
been the case when applying the relevant tariff. It is not
generically different from the attorney and client scale.
 Party and party costs

• That costs / fees/ disbursements that can recovered from the

unsuccessful party.
• Prescribed – fee tariffs / scales in court rules.
• Costs incurred in litigation, not the costs incurred in putting the
winner in a position to litigate
• “costs” or “taxed costs” = party and party costs

 Costs de bonis propriis

• Only applicable where party acts in representative capacity

• Must be good reasons for such an order, such as improper or
unreasonable conduct or lack of bona fides
• Where there is a material departure from the responsibility of office
• Eg.: Executors / Trustees / Attorneys
• Professional negligence/ dishonesty / wilfulness
• Can also extend to directors, liquidators, administrators
RULES FOR THE COURT’S GUIDANCE WHEN MAKING A COSTS
ORDER

 General rule: successful party entitled to costs

 Successful grant for indulgence, costs generally do not follow the
event
 Who was successful: Court looks to the substance of the judgment
and not merely its form
 Court has the power to deprive a successful litigant of a portion or
all of its costs, in proper case, and even order him to pay a portion
or all of the other party’s costs
 Court may order losing party to pay costs on party and party or
attorney and client scale
 Court may order that a person in a representative capacity pay
costs de bonis propriis.
TYPES OF ORDERS A COURT COULD MAKE:

 Costs in the action

 Costs in the cause
 No order as to costs
 Each party to pay their own costs
 Costs of the day
 Costs of postponement
 Costs to stand over
 Taxed costs
 Wasted costs.
 TAXATION

 Draw up a Bill of Costs in accordance to cost order.

 Obtain date and give notice of taxation, with copy of the Bill.

 Taxation Master will tax bill in accordance with order.

 Both parties are allowed to be present and to dispute items charged

– do they fall under the scale granted, is the amount within the
allowed limits etc.

 Master’s decision must be recorded and can be taken on review if

disputed.

 Different tariffs: litigious / non-litigious matters.

 Tariffs must be followed and applied.