Court name
High Court
Case name
Kamwi v Trustco Group International Ltd and Others
Media neutral citation
[2011] NAHC 361
Judge
Corbett AJ



















NOT
REPORTABLE






CASE
NO. I 3235/2010





IN
THE HIGH COURT OF NAMIBIA





In
the matter between:


















ALEX MABUKU
KAMWI



PLAINTIFF














and





TRUSTCO
GROUP INTERNATIONAL LTD

…....................................
1st
DEFENDANT


MAX
HAMATA

….................................................................................
2nd
DEFENDANT


FREE
PRESS (PTY) LTD
….................................................................3rd
DEFENDANT





CORAM:
CORBETT, A.J





Heard
on: 9 November 2011


Delivered
on: 15 December 2011


______________________________________________________________


JUDGMENT






CORBETT, A.J: .







[1] The plaintiff initially instituted
action against a journalist, Tileni Mongudhi and the Informanté
newspaper claiming that he had been defamed by certain articles
written and published by them. The articles complained of appeared in
the Informanté newspaper on 26 October and 9 November 2006.
The action was withdrawn and removed from the roll. It is common
cause that the Informanté newspaper is not a legal entity. The
plaintiff then instituted this action against the current defendants
claiming N$800,000.00 for defamation against the owner, editor and
publisher of the Informanté newspaper. It amounts to exactly
the same cause of action but against other parties.







Special plea







[2] The defendants take the point by
way of special plea that the plaintiff’s claim for defamation
has become prescribed.







[3] It is unclear from the Court file
as to when the present action was instituted, but it was either late
September or early October 2010 since the defendants delivered a
notice of intention to defend on 15 October 2010. Mr Dicks, who
appeared on behalf of the defendants, contends that the plaintiff
knew about the offending articles as early as 10 November 2006, and
through a simple process of enquiry would be aware of the author and
the publisher thereof. He contends that since the summons in casu
was issued some three years and ten months after the debt became due,
the claim has accordingly become prescribed. The plaintiff, who
appeared in person, seeks to counter this argument, by way of his
heads of argument and further oral argument at the hearing of this
matter, that he only had knowledge of the identity of the “proper
debtors
” much later and less than three years prior to
issuing summons.







[4] The Prescription Act, No. 68 of
1969, as amended (“the Act”), in terms of section 10 (1)
read together with section 11 thereof, provides that a debt of this
nature would prescribe within a period of 3 years.







Knowledge by exercising reasonable
care







[5] Critical to the facts of this
case, is section 12 of the Act relating to the time when prescription
begins to run, which states:







(1)
Subject to the provisions of subsections (2) and (3), prescription
shall commence to run as soon as the debt is due.
















  1. A
    debt which does not arise from contract shall not be deemed to be
    due until the creditor has 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.








[6] In this regard Diemont JA in the
case of
Gericke v Sack
said: 1







The
Act merely requires the creditor to seek such knowledge by the
exercise of reasonable care; she is not required to issue summons -
she is given a generous three years in which to institute
proceedings. All that she is called on to do is to ask one question
to establish identity and not to be content to play a purely passive
role. If she could have acquired this knowledge by acting diligently,
her inertia, ineptitude or indifference will not excuse her delay. A
creditor who fails to exercise the reasonable care prescribed by the
Act must pay the penalty for he is then deemed to acquire the
knowledge necessary for the debt to become due and for prescription
to begin to run.







[7] Section 12 (3) of the Act thus
aims to achieve a balance between these two opposing interests and
ensures that negligent, rather than innocent, inaction is penalized.
2
Accordingly, the yardstick to be used
in determining the standard of care required of the creditor, is –
3







“…to
do no more than that which could be expected, in the circumstances,
of a reasonable man.








[8] The knowledge which is required,
is the minimum to enable a creditor to institute action. In
Drennan
Maud and Partners v Pennington Town Board
the
Court decided as follows:
4







Section
12 (3) of the Act provides that a creditor shall be deemed to have
the required knowledge ‘if he could have acquired it by
exercising reasonable care’. In my view the requirement
‘exercising reasonable care’ requires diligence not only
in the ascertainment of the facts underlying a debt, but also in
relation to
the
evaluation and significance of those facts.

This
means that the creditor is deemed to have the requisite knowledge if
a reasonable person in his position would have deduced the identity
of the debtor and facts from which the debt arises.







[9] The court file in the earlier
action brought by the plaintiff was made available at the hearing of
the special plea. It was evident that the summons in that matter,
although dated 10 November 2006, was issued on 5 December 2006. The
plaintiff was accordingly aware of the publication of the offending
articles during November 2006. Mr Dicks contends that the owner of
the newspaper and the editor are stated in the newspaper. This may
well be the case but there was no evidence before me to this effect.











[10] The plaintiff submitted that he
had no knowledge of the identity of the present debtors until around
February 2008 when he saw the discovery affidavit of the second
defendant, the then editor of the Informanté newspaper, but
still did not have the identity of the owner and printer of the
Informanté newspaper. He claims that he only had knowledge of
the identity of the owner on 16 July 2009 and knowledge of the
printer on 21 August 2010.







[11] When these submissions were made
in Court by the plaintiff, the Court explained to him that should he
wish to rely on such allegations, he would need to be sworn in and
testify concerning these crucial issues as to the timing of his
knowledge. Despite being reminded of this fact more than once, the
plaintiff declined to testify to these alleged facts under oath, but
rather sought to rely on his submissions from the bar relating to
these dates. There was accordingly no evidence before Court as to
when exactly the plaintiff in fact had knowledge of the identity of
the defendants.







[12] A replication is necessary where
a party wishes to allege that prescription has been interrupted.
5
There has been some debate as to where
the onus lies where reliance is placed by the plaintiff on the
interruption of prescription. In the matter of
Yusaf
v Bailey and Others
6
the Court had to face a similar
problem, namely which party must bear the
onus
of proof which arises where the date
on which the defamation was first brought to the knowledge of the
claimant is in dispute. Vieyra J stated:
7







Counsel
told me that they could not find any decided cases dealing with this
point. There are however two reported cases dealing with the point.
The first is that of
Reid
v. van der Walt,
2
S. 285. Relying on
Voet,
47.10.21 and
Groenewegen’s
Note
6 to
Grotius
3.35.3,
the Court came to the conclusion that the
onus
of
pleading and proving that the plaintiff was aware of a slander rested
on the defendant. The other is
Holmes
v Salzmann,
1913
O.P.D. 111, in which the Court (Maasdorp, C.J.) came to the contrary
conclusion (see at p. 118). It was pointed out that the authorities
relied on in the earlier case did not bear out the inference drawn,
as indeed is the case. Moreover it would be contrary to principle to
cast an
onus
on
a defendant in relation to the facts so peculiarly within the
knowledge of the plaintiff. The earliest date from which the period
laid down in sec. 3 (2) (
b)
(i) of the Prescription Act, 18 of 1943, can run is the date of the
publication of the defamatory matter. In the vast majority of cases a
defendant would have no means of establishing exactly when the
plaintiff first learned of the defamation or ascertained the identity
of the parties responsible. The conclusion is that the
onus
must
lie on the plaintiff. I respectfully agree with the decision of the
Orange Free State Court.







[13] This approach was rejected by
Diemont, JA in the
Gericke v
Sack
matter where the
learned Judge of Appeal stated:
8







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 cognizance 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 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. Nor does it seem to me
that counsel can advance his argument by reliance on the rather
unusual manner in which the allegations relating to this issue were
pleaded. Mr Cloete pointed to the replication and argued that
it was the appellant who alleged that it was not until 17 February
1971 that she learned the identity of the respondent – she did
not content herself with a mere denial of the allegations contained
in the special plea; in so doing she attracted an onus.







That
submission is without substance; it overlooks the fact that it was
the respondent, not the appellant, who raised the question of
prescription. It was the respondent who challenged the appellant on
the issue that the claim for damages was prescribed – this he
did by way of a special plea five months after the plea on the merits
had been filed. The
onus
was clearly on the respondent to
establish this defence. He could not succeed if he could not prove
both the date of the inception and the date of the completion of the
period of prescription.







[14] In my view, this matter can be
distinguished from the Gericke v Sack case. The defendants, in
discharging the onus of establishing prescription, face no
replication or countervailing evidence tendered by the plaintiff that
prescription was interrupted on the dates claimed in argument. These
remain no more than unsubstantiated claims with no evidentiary weight
to be attached to them. By virtue of signing the original summons on
10 November 2006, I find that plaintiff was aware of the offending
articles sometime between their publication and that date. Armed with
a copy of the newspaper, it would, in my view, have been a simple and
quick investigative process to have ascertained the facts underlying
the debt and the identity of the debtors through exercising
reasonable care. Instead what the plaintiff did was to issue summons
against the author of the articles and the newspaper. These parties
were simply wrong suited. The issuing of summons in 2006 against
different parties did not interrupt prescription against the debtors
in this action. Section 15 of the Act, which provides for the
judicial interruption of prescription, has no application to the
facts of this matter.







[15] In the circumstances, I find that
the plaintiff’s claim has prescribed. The following order is
accordingly made:







1. The special plea of prescription is
upheld.







2. The plaintiff’s claim is
dismissed with costs, such costs to include the costs of one
instructing and one instructed counsel.











__________



CORBETT, A.J
























































ON
BEHALF OF THE PLAINTIFF
:





The
plaintiff in person











ON
BEHALF OF THE DEFENDANTS
:





Adv.
G Dicks





Instructed
by Engling, Stritter & Partners












11978
(1) SA 821 (A), at 830 C - D




2Minister
of Trade and Industry v Farocean Marine (Pty) Ltd, 2006 (6) SA 115
(C), at p. 125, para [35]




3Jacobs
v Adonis, 1996 (4) SA 246 (C), 253 B




41998
(3) SA 200 (SCA), at 209 F




5Butler
v Swain, 1960 (1) SA 527 (N), at 528 G


Hanson,
Thomkin and Finkelstein v D. B. N. Investments (Pty) Ltd, 1951 (3)
SA 769 (N), at 771 B – C


Naidoo v
Santam Insurance Ltd and Another, 1986 (1) SA 296 (N)




61964
(4) SA 117 (W)




7at
119 C - G




8at
827 D – 828 A