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[40] Later the plaintiff’s brother Jaco phoned her one evening threatening suicide.
He told her that just as the defendant had behaved with her so had the defendant
abused him. The plaintiff was paradoxically encouraged by this disclosure: she no
longer felt on her own, there was someone she could tell what had happened and
people would not be able to say that she lied about things the respondent had done.
The reconciliation between the expert evidence and the facts
[41] Where prescription is raised as a defence it is the defendant who bears the onus
of establishing as a matter of probability that prescription commenced to run and had
expired before the action was instituted, and he or she is not relieved of that burden
only because the material facts might be within the exclusive knowledge of the
plaintiff (Gericke v Sack 1978 (1) SA 821 (A) at 827B-828A). It might be, in a case
like the present, in which the plaintiff alleges that mere knowledge of the external
facts was not enough, that the plaintiff bears at least an evidential burden of placing
some material before the court that raises the issue. (That is not a question we are
called upon to decide). But in this case there is evidence that indicates prima facie
that the plaintiff was not aware until recently that it was not she who was the cause of,
or
who bore responsibility for, what occurred but rather that the responsibility was that
of the defendant. There was no evidence to controvert it in any substantial way. In my
view, the court should have found that the defendant failed to establish as a matter of
probability that prescription commenced to run before 1997.
today do you still think you are to blame or not?’ – Not any more.’ – Court: When did you change your mind?’
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