Unilever Bestfoods Robertsons (Pty) Ltd and Others v IM Soomar and Another

Supreme Court of Appeal -613/05 Hearing date: 01 November 2006
  Judgment date: 01 December 2006

Prescription – when claim based on acts committed pursuant to a conspiracy prescribes.

Media Summary of Judgment

The Supreme Court of Appeal today upheld an appeal brought by Unilever Bestfoods Robertsons (Pty) Ltd, Unifoods (Pty) Ltd, Tiger Oats Ltd, Universal Group Ltd and five individuals against a judgment delivered in the Durban High Court on 26 May 2005 in which Mr Justice JH Combrink dismissed their pleas of prescription which they raised against claims totalling R46.9m brought against them by Ciskei Oil and Cake Mills (Pty) Ltd and its managing director, Mr IM Soomar.

The claims were based on an alleged conspiracy by the appellants to put Ciskei Oil and Cake Mills out of business and to damage the good name and reputation of Ciskei Oil and Cake Mills and Mr Soomar.

Ciskei Oil and Cake Mills had, so it alleged, been obliged to close down its export operations in January 1994 because of illegal actions of Customs officials instigated by the appellants and it suffered further damages when it had to close down its business operations altogether in January 1998 as a result, amongst other things, of a prosecution instituted against Ciskei Oil and Cake Mills and Mr Soomar in the Mdantsane regional court. This prosecution, so it was alleged, was based on unfounded allegations and was instigated by the appellants. An attorney whose fees and disbursements were secretly funded by Unilever and Tiger Oats was appointed by the Attorney General of Ciskei to conduct the prosecution.

Eventually in 2001 the prosecution was withdrawn and the revenue authorities conceded that the actions it had taken under the Customs and Excise Act and the VAT Act against Ciskei Oil and Cake Mills had to be withdrawn.

The SCA held that as the respondents knew the facts needed to bring their claims against the appellants more than three years before they issued summons their claims had prescribed.