In the recent decision in Stemmet v Mokhethi, the
The facts of this matter are briefly as follows:
- The property was transferred to the respondents in mid-2013, when they took occupation of the property;
-
Months after taking occupation, but prior to
24 June 2014 , the respondents noticed defects in the property, including structural cracks in the walls and windows and cornices detaching from the walls. The cracks had been patched up, presumably by the appellants to conceal their existence from the respondents; -
After noticing the defects, on
24 June 2014 , the respondents lodged a claim withAbsa Bank , which financed the bond and insured the property; Absa Bank rejected the respondents' claim against their insurance policy on12 August 2014 because the defects were old and gradual and had been patched up;-
More than three years later, the respondents issued a summons against the appellants for damages in the magistrate's court. The summons was served on the appellants on
27 July 2017 ; - The respondents alleged in their summons that the appellants were aware of the defects and had fraudulently concealed the defects and/or fraudulently did not disclose the defects to the respondents, which induced them to purchase the property; and
-
In their defence, the appellants raised prescription and asserted that the respondents were aware of the defects by
June 2014 , at which point prescription had already commenced to run, and hence by the time the summons was served (27 July 2017 ), their claim had already prescribed.
The magistrate concluded that the claim had not prescribed and went on to find for the respondents on the merits, i.e., that they had fraudulently been induced by the appellants to purchase the property by the non-disclosure/concealment of the defects. The appellants appealed against the dismissal of the special plea of prescription but did not appeal against the magistrate's finding against them on the merits.
On appeal, the
The question before the SCA was when the respondents became aware of the existence of the defects and the damages arising from those defects to satisfy section 12(2) of the Prescription Act, 1969. The SCA also considered whether, at that stage, as required in section 12(3) of the Prescription Act, the respondents knew the identity of the person responsible for their damage.
The SCA held that as early as
This does not mean, as the SCA held in Truter v Deysel, that the creditor has all the facts needed to prove their case such as, for example, expert evidence to support the claim.
The respondents relied on the fact that expert evidence in support of their suspicion that the appellants had concealed the cracks was only obtained on
The SCA repeated the warning it sounded in MacLeod v Kweyiya:
“A creditor cannot simply sit back and 'by supine inaction arbitrarily and at will postpone the commencement of prescription'. What is required is merely the knowledge of the minimum facts that are necessary to institute action and not all the evidence that would ensure the ability of the creditor to prove its case comfortably”.
Hence, the SCA upheld the appeal, finding that the respondent's claim against the appellants had lapsed three years after
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Mr
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