Automated Summary
Key Facts
In Case No. 11525/2022, the Applicant (Passenger Rail Agency of South Africa) sought to join the 3rd Respondent (Khuthele Projects (Pty) Ltd) as a 3rd Defendant in the main action (Case No. 26388/2019) against AECOM SA (Pty) Ltd and others. The 3rd Respondent opposed the joinder, arguing the Applicant's claim against it had prescribed under the Prescription Act (No. 68 of 1969). The Court dismissed the joinder application, finding the claim against the 3rd Respondent was time-barred as it would not serve a purpose to join them after prescription had expired on 12 April 2022.
Transaction Type
Consultancy Agreement
Issues
- The court examined if it could address prescription based on the 3rd Respondent's Answering Affidavit under Section 17 of the Prescription Act. The Applicant argued the court should not consider prescription mero motu, but the court held that prescription was properly raised by the 3rd Respondent and concluded the claim had prescribed, dismissing the joinder application accordingly.
- The court determined whether the joinder application to add the third respondent as a defendant was valid given the claim had prescribed. The Applicant argued the claim arose no later than April 2019, making the 12 February 2022 joinder application within the three-year prescription period. The 3rd Respondent opposed, asserting the claim prescribed on 12 April 2022, and the court dismissed the joinder application as it did not interrupt the prescription period.
- The court assessed if the joinder application on 12 February 2022 interrupted the three-year prescription period starting from when the claim became due. The Applicant contended the claim against the 3rd Respondent became due in April 2019, but the court found the joinder application did not interrupt prescription, as it was not filed in time to serve amended documents before the prescription period ended on 12 April 2022.
Holdings
The court dismissed the Applicant's joinder application to include the 3rd Respondent as a 3rd Defendant, finding that the claim against the 3rd Respondent had prescribed under the Prescription Act. The court held that instituting a joinder application does not interrupt prescription and that the Applicant's claim became due no later than 12 April 2019, rendering the 12 February 2022 joinder application outside the three-year prescription period. The Applicant was also ordered to pay the 3rd Respondent's costs on a party and party scale.
Remedies
- The Applicant is ordered to pay the 3rd Respondent's costs on a party and party scale
- The joinder application is dismissed
Legal Principles
The court applied Sections 10 and 11 of the Prescription Act (No. 68 of 1969) to determine that a claim prescribes three years after the cause of action arises. It also relied on case law (Nativa Manufacturing v Key Max, Peter Taylor v Bell Estates) to establish that instituting a joinder application does not interrupt the prescription period. Section 17 of the Prescription Act was cited to confirm courts cannot raise prescription mero motu unless properly invoked in pleadings like an Answering Affidavit. The judgment concluded the Applicant's claim against the 3rd Respondent had prescribed as the joinder application was filed after the three-year deadline.
Precedent Name
- Njongi v Member of Executive Council, Department of Welfare, Eastern Cape
- Peter Taylor and Associates v Bell Estates (Pty) Ltd and Another
- Nativa Manufacturing (Pty) Ltd v Key Max Investments 125 (Pty) Ltd and Others
Cited Statute
Prescription Act
Judge Name
C M RIP
Passage Text
- 1. A Court shall not of its own motion take notice of prescription; 2. A party to litigation invokes prescription, shall do so in the relevant document filed of record in the proceedings; provided that a Court may allow prescription to be raised at any stage of proceedings.
- [44] In the circumstances, there is merit in Marce's defence that Nativa's claim against it has prescribed and that the joinder of Marce as the Third Defendant would serve no purpose. It follows that the joinder application must be dismissed.
- 1. The joinder application is dismissed; 2. The Applicant is ordered to pay the 3rd Respondent's costs on a party and party scale.