Cell C has won a court case in which it argued the City of Cape Town was three days late in issuing summons for a claim for almost R2 million in damages it allegedly caused to the city’s stadium in 2015.
The Mother City wanted Cell C to pay it almost R2 million after alleging the mobile network operator caused damage to the Cape Town Station during the installation of a new tower.
The mobile operator told ITWeb it was “pleased and satisfied that the law has taken its course with due process, and the outcome reflects that”.
Luthando Tyhalibongo, the city’s spokesperson, told ITWeb that “the city is studying the judgement and looking at its options”.
Testimony during the court case from the city’s lawyer, Andre van Greunen, indicated he instructed the Sheriff of the High Court, on 9 November 2018, to serve summons no later than 18 November 2018. He said he did this to avoid any potential claim expiring based on prescription.
“Van Greunen testified that he made this request out of an abundance of caution as he knew the plaintiff discovered the damage on the 18th of November 2015 and he wanted to prevent any possible argument on prescription. He emphasised that the plaintiff did not know who caused the damage on 18 November 2015,” the judgement reads.
However, the Sheriff failed to comply and Van Greunen’s deadline, which was exactly three years after the city discovered the damage, expired. Summons was then delivered on 21 November 2018.
The Prescription Act states that if a creditor hasn't taken steps to recover the debt, such as sending a summons, within a certain period, the debt is considered prescribed. Although the debt still exists in theory, the creditor cannot legally force payment through the courts.
In terms of the law, the only debt that doesn’t prescribe in three years is that which is owed to the state (15 years) as well as mortgages, municipal accounts, or money owed to the South African Revenue Service, which effectively goes away after 30 years.
The defeated claim arose after the stadium was damaged by an unknown company following the city giving Cell C – South Africa’s fourth-largest mobile network operator – permission to install infrastructure at the stadium in October 2015.
During the construction of the tower, the city claims that Cell C, against which its main claim was lodged, caused “extensive damage to the external façade of the stadium which was caused by a metal panel which had dislodged… and which fell on or through the façade,” the judgement read.
Among the city’s allegations regarding the panel was that it wasn’t sufficiently secured.
Cell C’s installation team included contractors from Huawei, with its attorney calling on Oliver Masiyakurima, an engineer responsible for the network provision, to testify. Masiyakurima told the court that Cell C was the only company on site when the alleged incident occurred, based on stadium entry logs.
Yet, Masiyakurima’s report concluded that “there was no conclusive proof in respect of who was responsible for the damage”.
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