MANYANE MANYANE
Former SABC chief operations officer Hlaudi Motsoeneng and nine former executives are fighting tooth and nail to prevent the public broadcaster from claiming more than R2 million paid to more than 50 “music legends”.
This was after the SABC and Special Investigating Unit (SIU) launched an appeal against the Special Tribunal ruling favoured Motsoeneng and other executives.
The money was paid between October 2016 and February 2017, and each “music legend” received R50 000.
However, the tribunal recently said an order that Motsoeneng and the executives should pay back an amount of R2.5 million to the SABC has become prescribed. This means that the debt has been erased and the SABC no longer has the right to demand repayment.
The debt became prescribed in September 2020 and the SIU only launched the application in January 2021 - three years later.
The Gauteng High Court heard the matter virtually on Wednesday.
The SABC and the SIU wanted the court to determine when the prescription commenced to run for the monetary claim sought and whether the SIU was a “representative applicant” whose claim was prescribed as it has for the SABC.
Both SABC and SIU, the applicants in the matter, argued that the debt was purportedly not due and the prescription did not commence to run. They added that a debt does not become due until the administrative decision has been set aside and thus a complete set of facts can only exist once such an administrative decision has been set aside.
Motsoeneng, through his attorney, Nikiwe Nyathi, told the court that the applicants' argument seeks to emphasise that the alleged debt did not become due “until a court sets aside the administrative decision in question”, or until it became aware of the legal rights that follow.
Nyathi said the courts have dealt with this proposition in multiple case law. He said the position adopted by the applicants was plainly incorrect.
She said section 12(1) of the Prescription Act makes provision for the general rule, that is that prescription commences to run as soon as the debt is due.
However, this is subject to two exceptions:
The first exception, in subsection (2), is that the prescription does not commence to run against a creditor if the debtor wilfully prevents him or her “from coming to know of the existence of the debt” until he (i.e. the creditor) “becomes aware of the existence of the debt”.
Nyathi said this exception does not apply to the applicants’ case and thus no reliance can be placed thereon.
The second exception, in subsection (3), is that a debt is “not deemed to be due until the creditor knows” two things: Knowledge of the identity of the debtor, and knowledge “of the facts from which the debt arose”. Nyathi said this exception, however, is subject to a proviso in subsection (3). The proviso reads: “Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care”.
“If a debtor delivers a special plea of prescription and the creditor seeks to meet it by saying prescription did not run because, before a certain date, he did not know the identity of the debtor or of the facts from which the debt arose, the debtor can come back and say: but you could have acquired that knowledge if you had exercised reasonable care but you failed to exercise such care and, therefore, prescription did commence to run before that date,” said Nyathi.
“The applicants have not, at any stage in these proceedings, stated that they did not have knowledge of the respondents (whom they are seeking payment from) and it is clear in the forensic report that they knew the facts on which they would rely. Any purported lack of knowledge is not an issue before this court. The proviso applies to the applicants who had, through the forensic report of August 3, 2017, exercised such reasonable care to acquire the knowledge of the facts and the debtors. The applicants are thus deemed to know the debt from August 3, 2017,” said Nyathi, adding that even the second exception does not apply to the applicants.
She added that the applicants' defence against prescription was plainly not permissible, saying the maximum period for the institution of the proceedings for the monetary claim was three years from the date of the payments.
“Accordingly, and in the application of the authorities above, the appellants were aware of both the identity of the debtor and the facts from which the debt arose when the forensic report was produced on August 3, 2017, and at the very latest by September 14, 2017.
“From August 3 and at the latest on September 14, 2017, the prescription period started running in respect of the debt arising from the payments made to the music legends. Consequently, the debt became prescribed (at the latest) on September 13, 2020. The appellants only launched this application in January 2021, over three years after this date.”
Nyathi said the monetary claim sought by the SABC and SIU was incompetent and could not be adjudicated on in application proceedings.
“In law, a monetary claim can only be sought when fraud or mala fides have tainted the exercise of the administrative powers of a functionary, in which event a court may grant such a finding. On the applicants' own admission, none of the respondents benefited from the Music Legends project. The promotion and implementation of the legends project was for the benefit of the SABC and therefore occurred without fraud or mala fides,” she said.