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Stemmet and Another vs. Mokhethi and Another - (04 Oct 2023)

Prescription begins to run, when the creditor has the minimum facts necessary to institute action


The matter concerned the prescription of a claim which Mr. and Mrs. Mokhethi (the Respondents) had instituted against Mr. and Mrs. Stemmet (the appellants). The claim involved latent and undisclosed defects which the Respondents discovered some time after they had purchased the Appellants’ property situated in Fichardt Park, Bloemfontein (the property).

The question before the SCA was when did the respondents become aware of the existence of the existence of the defects and the damages arising therefrom to satisfy Section 12(2) of the Prescription Act 68 of 1969; and did they, at that stage, know the identity of the person responsible for their damage, to satisfy the requirement in Section 12(3) of the Act?

It is trite that, the debt becomes due (and prescription begins to run) when the creditor has the minimum facts necessary to institute action. In Minister of Finance v Gore, this Court held that ‘the running of prescription is not postponed until a creditor becomes aware of the full extent of its legal rights, nor until the creditor has evidence that would enable it to prove a case “comfortably”’.

In regard to knowledge of the identity of the debtor, the Respondents could not have had any doubt that it was the appellants. It was from the appellants that they had purchased the property, in seemingly perfect condition, newly painted and neat. Within a few months, the doors began jamming, cracks began appearing and continued to emerge and worsen as time went on until it reached the point that the property was ‘falling apart’.

At that stage, it would not matter to the Respondents what the cause of the defects was. The cause of the defects as later determined in the opinions of experts, was not required at that stage to complete the cause of action. That was a matter for evidence. From the common cause facts, it was clear that, as early as June 2014, the Respondents were in possession of sufficient facts to cause them, on reasonable grounds, to believe that there had been attempts by the appellants to cover up latent defects in the property. The attempt to patch up the cracks would have immediately led to a reasonable belief that the Respondents had fraudulently misrepresented the facts to them. That apprehension was sufficient to complete their cause of action against the Appellants. They thus had knowledge of sufficient facts which would have led them to believe that the defects existed when they purchased the property from the appellants, and that they were fraudulently concealed by the appellants.

The Respondents only had the necessary knowledge of the minimum facts, on becoming aware of the cause of the defects, was at odds with established applicable legal principles. It also did not take account of the material facts, including the first Respondent’s evidence. Accordingly, the appeal succeeded.


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