Court dismisses JNG Express loan recovery bid

Mpho Mokwape | Tuesday October 11, 2016 12:19

The public transport operator took Raborophi to court over the unpaid loan and had wanted to recover the money after the latter wrote a letter in acknowledgment of the debt.

However, Gaborone High Court, Justice Singh Walia last week dismissed JNG Express’s provisional sentence summons on the basis that the claim had long prescribed.

Walia explained that JNG owner’s rights to recover the debt by recourse to court had prescribed long before the letter in question had been written.

He said the defendant’s letter, described as an acknowledgment of debt, could not be regarded as anything than just a promise to pay.

“The plaintiff has therefore lost its right to sue for the debt on the basis of the purported acknowledgment or otherwise,” he said.

He explained that in terms of section 4 (1) of the Prescriptions Act extinctive prescription was the rendering unenforceable of a right by the lapse of time.

Furthermore, Walia said in terms of the Act, the period was three years in respect of oral contract and that it was the period applicable to JNG claim.

“It is law that what prescribes is not the debt itself but the right to claim it by recourse to court. The general principle is that an acknowledgment of debt after prescription has set in, does not revive the claim, although the debt remains intact,” he said.

JNG owner filed the suit on September 14, 2015 through a provisional sentence summons claiming payment of over P100,000 alleging that it was from an acknowledgment of debt made by the Raborophi on September 26, 2014.

Through his lawyer, the operator explained that the claim arose from a transaction where he loaned the total sum of P70,000 to Raborophi around January 2010. However Raborophi’s lawyer Uyapo Ndadi opposed the claim saying the claim had prescribed in 2013 since it was only a three-year period.

Ndadi argued that the claim having expired, any acknowledgment of debt thereunder after such date, was invalid.

He said as the acknowledgment was a fresh obligation undertaken by his client at the date of the document, a prescription therefore runs anew.