Habib and Another v Ethekwini Municipality 2020 (1) SA 580 (KZD)

/ / 2020, Prescription raised by way of exception


The two trustees of the Ismail Habib Family Trust (“the Plaintiffs”), instituted action against the Defendant, the eThekwini Municipality, in respect of rates and penalties (“the debt”) that they had paid to the Defendant. The debt was owed to the Defendant by a previous owner of the immovable property, which the Plaintiffs had purchased.

The Constitutional Court had handed down a judgment, in a different matter, declaring that a municipality could not compel someone in the Plaintiffs’ position to pay the debt owed by a prior owner. Upon realising this, the Plaintiff instituted the aforementioned claim for the return of what it paid in the sum of R3 781 107.

The Plaintiffs alleged that they had paid the debt under duress by the municipality, after receiving threats relating to the discontinuation of services and legal action.

The Defendant excepted to the Plaintiffs particulars of claim on the basis that the facts pleaded therein did not disclose a cause of action and did not establish that the Plaintiffs’ claim was still in effect; in other words, that it had not prescribed. Subsequently, the Plaintiffs delivered a notice in terms of Rule 30 (2)(b) of the Uniform Rules of Court claiming that the exception was an irregular step insofar as prescription must be raised as a plea or special plea and not by way of exception. After the Defendant failed to withdraw their exception, the Plaintiffs launched an application, in terms of Rule 30 (1), for an order setting aside the exception as an irregular step.

The Plaintiffs submitted that, if the exception were to be dismissed on its merits, there would be no need to decide the application in terms of Rule The Defendant however, contended that the application, brought by the Plaintiff, was inappropriate, unnecessary and resulted in the incurrence of excessive costs. The Defendant further submitted that the Plaintiff should be held liable for the costs of the application. When deciding an exception, on its merits, the court held that an excipient must show that the pleading is excipiable on every interpretation that can reasonably be attached to it.


Upon consideration of the arguments put forward by the Plaintiff and Defendant, the court held as follows: –

1. The court used the analogy “if the action was undefended, a court would have had no difficulty in granting a default judgement on the particulars of claim”. However, the particulars of claim in the present case lack the necessary averments to sustain the cause of action. The Plaintiffs’ application, in terms of Uniform Rule 30, was dismissed with costs; and

2. the exception raised by the Defendant, on the basis that the Plaintiffs particulars of claim did contain sufficient averments to sustain a cause of action, contrary to the allegation made by the Defendant, was also dismissed with costs.


The correct way of raising the issue of prescription, in action proceedings, is by way of a plea or a special plea and not by way of an exception. However, when prescription is raised by way of an exception, courts will examine whether or not the averments are excipiable and whether or not they are sufficient to sustain a cause of action, before merely dismissing the exception as an irregular step.

Written by Jordan Dias and Alisha Naik

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