COURT OF NAMIBIA, MAIN DIVISION, WINDHOEK
NO. I 3744/2014
the matter between:
citation: Shambo v Amukugo (I 3744-2014)
 NAHCMD 244 (9 October 2015)
1 September 2015
9 October 2015
PRESCRIPTION – Provisions of the Prescription Act 1969 i.e.
ss 14 and 15 – interruption of prescription by acknowledgment
of liability; judicial interruption of period of prescription and the
application of the continuous wrong argument in relation to an
alleged fraud and its effect on the running of prescription
plaintiff sued the defendant for N$ 75 000 allegedly given to the
defendant following an alleged misrepresentation made by the latter
to the former that the latter was properly authorized by the Ondangwa
Town Council to sell land to members of the public. This
misrepresentation induced the plaintiff to pay over the sum claimed
to the defendant, which the latter despite demand failed to pay back.
Held that a summons issued in the Magistrate’s Court did not
interrupt prescription because the amount claimed and the cause of
action as well as the dates of the relevant transactions did not have
any bearing on the present action. Held that prescription was
interrupted by acknowledgement of liability but the period when
prescription started running afresh showed that the claim was
prescribed. Held further that the fraud alleged in the instant case
constituted a single choate transaction and that the argument
relating to continuous wrong did not apply to the case at hand. The
special plea of prescription upheld with costs.
defendant’s special plea of prescription is upheld with costs.
ON SPECIAL PLEA OF PRESCRIPTION
The question confronting this court, and in need of an answer is
whether a plea of prescription raised by the defendant should serve
to non-suit the plaintiff in the present action proceedings.
The facts giving rise to the question may be briefly summarized as
follows: The plaintiff sues the defendant for payment of an amount of
N$ 75 000.00 an amount he alleges is due to him from the defendant.
The indebtedness alleged to arise from an alleged representation made
by the defendant to the plaintiff that she was authorized to alienate
property on behalf of the Ondangwa Town Council, for whom she worked
in the capacity of Town Planner. Part of her duties, it was
understood, was to deal with members of the public and to render
advice to them on which plots were up for sale to members of the
The plaintiff avers that acting on a representation made to him by
the defendant in her aforesaid capacity, he parted with the amount
claimed which he allegedly handed over to the defendant for the
purchasing of a plot in the said Council. It is further averred that
when the defendant made this representation she well knew that same
was false and further knew that the plaintiff would rely on her said
representation to his prejudice. It is further averred that having
ascertained that the said representation, the plaintiff has been
unsuccessful in his attempts to have the defendant refund the money,
hence the issuance of the summons.
In response to these averrals, the defendant filed a special plea,
alleging in the main that the summons was issued more than three
years after the event allegedly giving rise to the claim is alleged
to have arisen. The defendant also pleaded over on the merits but it
is no necessary at this juncture to deal with the averrals in the
defendant’s plea, as the live issue, for the moment, is whether
the plea of prescription is good and should in this case avail the
In the special plea, the defendant alleges that on the plaintiff’s
version, the event giving rise to the claim took place “during
2009” and that the summons was served on the defendant on 12
November 2014, a period, which it is averred, is more than three
years and falls foul of the provisions of the Prescription Act
The plaintiff, in his heads of argument claims that the running of
period of prescription was interrupted by two events, namely, an
acknowledgment of debt signed by the defendant in favour of the
plaintiff and also a summons issued by the plaintiff against the
defendant, which was tenable at the Windhoek Magistrate’s
Court. I intend to first consider whether indeed these two events, in
the present circumstances did serve, as alleged, to interrupt the
period of prescription as alleged.
interruption of prescription
I intend to commence with the effect of the summons issued in the
Magistrate’s Court as aforesaid. But before I do so, it is
important to have regard to the relevant provisions of the Act, being
s 15 (1), which has the following rendering:
The running of prescription shall, subject to the provisions of
subsection (2), be interrupted by the service on the debtor of any
process whereby the creditor claims payment of the debt.’
Wolfgang Lisse v Minister of Health and Social Welfare
the Supreme Court, in dealing with the subject of interruption had
this to say at para :
African courts have long accepted that in order for prescription to
be interrupted as contemplated in s 15 of the Prescription Act there
must be a right enforceable against the debtor instituting legal
proceedings for the enforcement of that right ‘or substantially
the same right.’
this case, the Supreme Court had to grapple with the decision whether
the launch of review proceedings, which preceded a claim for damages
and were successful, served to interrupt prescription and the court
came with a resounding answer in the affirmative.
The summons issued by the plaintiff in the Magistrate’s Court
was, no doubt between the two protagonists. The claim was by the
present plaintiff against the defendant, claiming payment of an
amount of N$ 15 000. The claim was instituted, it would appear, on
simple summons and there were, as a result, no averments stated as to
the basis of the claim and the circumstances in which the amount
claimed came to be owing to the plaintiff.
Crucially, and the above notwithstanding, the simple summons reflects
in respect of the said claim that, ‘The Plaintiff’s claim
against the Defendant is for payment of the sum/balance of N$ 15 000,
in respect of monies lent and advanced to the Defendant by the
Plaintiff, at the special instance and request of the Defendant on 2
August 2010.’ The question is whether the proceedings at the
Magistrate’s Court were launched to enforce the same or
substantially the same right?
My answer is in the negative and I say so primarily on the following
grounds. First, the amount claimed is different. Whereas the amount
claimed was N$ 15 000 before the Magistrate’s Court, the one
serving before this Court is for N$ 75 000, which amount is about
four times more than that claimed in the lower court. It must be
mentioned that it cannot be said that the amount has increased over
time, all things being equal.
Second, the causes of action are as far as East is from the West. In
the lower court, the amount claimed was in respect of monies lent and
advanced, yet the claim before this court is based on fraudulent
misrepresentation. The causes of action, thus seen cannot, on the
most benevolent of interpretations, be said to be consanguineal or
related at all so as to say a possibility exists that the right
sought to be vindicated was the same or substantially similar. One
claim may well be said to be from Mars, while the other from Jupiter.
Last, but by no means least, the dates when the said causes of action
arose, ineluctably show and spell doom to any consideration that one
may have entertained that these were enforcement proceedings of the
same or similar right. In the claim before the lower court, as will
be evident from what I quoted above, the claim is alleged to have
arisen on 2 August 2010. The averrals in the instant claim allege
that the transaction giving rise to the claim took place ‘around
2009’. It therefore becomes clear that the proceedings before
the Magistrate’s Court took place later, although they appear
to have been prosecuted earlier than the present claim.
On any construction, I can only come to what I consider an inexorable
conclusion that the claims pursued before the Magistrate’s
Court and this court are different and for that reason I am of the
view that the issuance of the summons before the Magistrate’s
Court did not in the peculiar circumstances of this case serve to
interrupt prescription. The fact, harped upon by the plaintiff’s
counsel in argument, that the judgment in the Magistrate’s
Court was only issued on 4 July 2014 does not, in my respectful view
assist the plaintiff at all. It is irrelevant, regard being had to
the conclusion I came to regarding the judicial interruption of the
period of prescription alleged.
prescription as a result of acknowledgment of liability
I now turn to consider Ms. Nguasena’s argument that the
acknowledgment of liability signed by the defendant also served to
interrupt prescription in this case. Does this argument have any
merit? The acknowledgment of liability referred to is a document
signed by the defendant and dated 2 August 2010. It is a document in
manuscript in which the defendant stated, ‘I will pay the N$15
000 after six month (sic) to Mr. Shambo’. It then bears
the defendant’s name and signature.
The one curious feature of this letter is that the defendant
undertakes to pay an amount of N$ 15 000. The acknowledgment is in
response to and written on the top of a letter written in manuscript
by the plaintiff to the defendant claiming an unstated balance owing.
The letter alleges that the plaintiff agreed to withdraw a case of
theft and fraud against the defendant on the understanding that the
defendant would reimburse the plaintiff his money in full. It is not
clear how much the said outstanding balance is as the plaintiff’s
letter does not state the amount.
Section 14 of the Act reads as follows:
The running of prescription shall be interrupted by an express or
tacit acknowledgment of liability by the debtor.
If the running of prescription is interrupted as contemplated in
subsection (1), prescription shall commence to run afresh from the
day on which the interruption takes place or, if at the time of the
interruption or at any time thereafter the parties postpone the due
date of the debt, from the date upon which the debt again becomes
It is important to note that in terms of this section, whose terms it
must be mentioned are couched in peremptory language, prescription is
interrupted by acknowledgement of liability either expressly or
tacitly, which imports acknowledgement of liability indirectly. In
this regard, it must be further mentioned, the prescription commences
running from the date of interruption or if the parties postpose the
due date of the debt, from such date chosen.
The learned author Saner,
states the following regarding acknowledgment serving as an
interruptus in the running of prescription:
interrupt prescription an acknowledgment by the debtor must amount to
an admission that the debt is in existence and that he is liable
am of the considered view that the letter I have quoted above does
meet the requirements of being an acknowledgment as the defendant
specifically admitted owing the debt to the defendant and further
made a promise to pay. The only issue that might serve to create a
doubt is the amount that the defendant admitted to pay i.e. N$ 15
000, which appears to be the same figure claimed in the Magistrate’s
On the balance, I hold that the acknowledgment in this case was in
respect of the claim in question and this is so in my view from the
contents of the plaintiff’s letter where he states, “The
case of theft and fraud (sic) was withdrawn on your request in
order to receive my money in full. I was patient and fulfilled your
request to withdraw the case on the 3rd August 2010. I
waited for 459 days for my money, but I never received a cent as
promised.’ This, in my view shows indubitably that the amount
claimed by the plaintiff which the defendant acknowledges owing was
in relation to a case of theft and fraud and the present claim,
generally speaking, falls into that category.
That the amount the defendant agreed to pay does not tally with the
extent of the claim should not, in my view serve to non-suit the
plaintiff for the reason that the plaintiff did not, in his letter
claim N$ 15 000 but it is the defendant who undertook to pay that
amount. I should also add that from the opening paragraph of this
letter by the defendant, it would appear that the defendant had
earlier admitted liability in the presence of two witnesses in
writing, namely the defendant’s uncle and another person. This
may yet be another instance of acknowledgment of debt but on which no
claim is laid and I cannot, in the circumstances, have regard to same
for purposes of any interruption occasioned thereby, which according
to the plaintiff’s letter ran into some 459 days.
I am of the view that the acknowledgment in this case did serve to
interrupt prescription. It would appear to me that the debt became
due six months from the date of acknowledgment, which is 2 February
2011. I say so because the defendant wrote the letter of
acknowledgment on 2 August 2010 and stated that she would pay the
amount in question six months from that date. Six months in this
scenario postpones the due date of payment to 2 February 2011. This
is in line with the provisions of s 14 (2) quoted above.
In view of this computation, read together with the provisions of s
14 (2) that prescription again began to run afresh from 2 February
2011. The period of three years from 2 February 2011, takes us to 2
February 2014. It is evident that the summons in this case was issued
on 3 November 2014, which is a period in excess of three years,
resulting in the conclusion, which I have reached that the claim had
prescribed by the time the summons was issued.
It will be seen that there were two forms of interruptions that were
claimed by the plaintiff to have interrupted the running of
prescription, namely a judicial interruption, being the service of
process in the Magistrate’s Court, which I held did not hold.
The last is interruption by acknowledgment of liability, which I have
found holds but will not avail the plaintiff for reasons canvassed in
the immediately preceding paragraph.
I now turn to the last argument raised by the plaintiff in applying
for the dismissal of the special plea. The argument is that a fraud,
that the defendant is alleged to have perpetrated on the plaintiff
does not constitute a single debt within the meaning of the Act. For
that reason, it was contended, there is no precise date from which
the debt must be reckoned to run as the fraud or its effects continue
to haunt the plaintiff as long as the amount claimed remains unpaid.
Is this argument sustainable?
In support of this contention, reliance was placed on the case of
Sinclair Barnett and Others v The Minister of Land Affairs and
that case, the court held that certain types of conduct which are of
a continuing nature do not qualify to be regarded as a debt within
the meaning of the Act. The court expressed itself in this regard as
follows at page 9 para  of the cyclostyled judgment:
from this premise, the answer to the prescription defence is, in my
view, to be found in the concept which has become well-recognised in
the context of prescription, namely that of a continuous wrong. In
accordance with this concept, a distinction is drawn between a
single, completed wrongful act – with or without continuing
injurious effects, such as a blow to the head – on the one
hand, and a continuous wrong in the course of being committed, on the
other. While the former gives rise to a single debt, the approach
with regard to a continuous wrong is essentially that it results in a
series of debts arising from moment to moment, as long as the
wrongful conduct endures.”
In dealing with what constitutes a continuous wrong, the court, at
para  said:
Slomowitz (at 331) this court accepted the description of a
continuous wrong as one which ‘is still in the course of being
committed and is not wholly past’.
would appear to me that whether the doctrine applies, will have to
depend on the peculiar circumstances of the case at hand. The case
does not say that every type of fraud is a continuous wrong. What
this court has to determine is whether the issue giving rise to the
debt is continuing; still in the course of being perpetrated to
constitute a new wrong, and in a sense, thus inchoate. In the Barnett
case, it is quite understandable on the facts why the court held
that the wrongful acts continued and that the special plea of
prescription would not hold. In that case, the appellants were, even
at the time of the judgment, still occupying the disputed property
illegally and as such, the illegality continued with each passing day
and the effects of prescription could not kick in, in the natural
I have, in the course of my research, come across the judgment of
this court in Ongopolo
Mining Ltd v Uris Safari Lodge And Others.
court considered the ‘continuous wrong argument’ and came
to a view, in relation to a fraud in the registration of immovable
property that was the basis of the claim in that case, which was
summed up in the following language at para :
conclusion I come to is that the alleged fraud giving rise to the
present claim is capable of being construed as a single act which
occurred on 28 October 2002 when the Farm was transferred to the
agree entirely with the finding of the learned Judge President in
that case and hold that his reasoning resonates and actually applies
to the instant case.
By parity of reasoning, I therefore come to the view that in the
instant case, there is nothing to suggest that the fraud was inchoate
and continues to be perpetrated. It would seem that it was
consummated in 2009 and resulted in the plaintiff taking legal
action, which included reporting a criminal case, which he appears to
have later withdrew. Unlike in the Barnett case, I find
nothing, as the learned Judge President also did not find in the
Ongopolo case that the fraud was a continuous wrong which
endures and still in the course of being committed. I should
also mention that there was no indication either that if the harm is
not being committed now, it however continued for some time after the
year alleged and then stopped at some date which would serve to
affect the operation of prescription.
I accordingly come to the conclusion that the continuous wrong
argument does not apply in the instant case and is not in any shape
or form supported by the facts. I conclude that the continuous wrong
argument does not avail the plaintiff in the circumstances of this
case and I accordingly refuse to uphold same.
In the premises, I come to the conclusion that the special plea of
prescription is good and it serves, in the circumstances to non-suit
the plaintiff. The defendant’s special plea of prescription is
therefor upheld with costs.
by AngulaCo. Inc.
by LorentzAngula Inc.
in South African Law, Lexis
Nexis, July, 2008 at p 3-19.
2014 (1) NR 290 (HC) per Damaseb JP.