De Wet v Barron and Others (796/2024) [2025] ZAWCHC 378 (22 August 2025)

Case Note

De Wet v Barron and Others
High Court of South Africa (Western Cape Division, Cape Town)
Case No 796/2024 – judgment delivered 22 August 2025

Reportability

This judgment was marked REPORTABLE because it offers a detailed and self-contained discussion of when a claim for specific performance under a deed of sale becomes due for purposes of the Prescription Act 68 of 1969. It clarifies the interaction between section 12(3) (knowledge of the debt), section 13(2) (reciprocal debts) and section 14(1) (acknowledgement of liability), and it situates that analysis within the framework of the Constitutional Court’s guidance in Trinity Asset Management v Grindstone and RAF v Mdeyide.

The judgment is significant for conveyancers, litigators and commercial practitioners alike because it underscores that a transfer-of-land obligation can prescribe even where the contract is silent on the performance date, and it explains how courts should approach “reasonable time” arguments advanced to delay prescription. In addition, the court’s refusal to allow senior-counsel fees on scale C, despite the matter’s reportability, gives practitioners guidance on costs where a party “litigates in luxury”.

Finally, by weaving in public-policy considerations on finality and certainty, the judgment adds to the developing jurisprudence on prescription’s constitutional dimension and therefore deserves a place in the law reports.

Cases Cited

Soffiantini v Mould 1956 (4) SA 150 (E)
Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd 2004 (3) SA 160 (SCA)
Road Accident Fund and Others v Mdeyide 2011 (2) SA 26 (CC)
Trinity Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd 2018 (1) SA 94 (CC)
Drennan Maud & Partners v Pennington Town Board 1998 (3) SA 200 (SCA)
Minister of Public Works and Land Affairs and Another v Group Five Building Ltd 1996 (4) SA 280 (A)
Ethekwini Municipality v Mounthaven (Pty) Ltd 2019 (4) SA 394 (CC)
Uitenhage Municipality v Molloy 1998 (2) SA 735 (SCA)
Botha and Another v Rich NO and Others 2014 (4) SA 124 (CC)
Mcleod v Kweyiya 2013 (6) SA 1 (SCA)
Off-Beat Holiday Club and Another v Sanbonani Holiday Spa Shareblock Ltd and Others 2017 (5) SA 9 (CC)
Grimbeek v Jacobo (922/2017) [2018] ZASCA 131
Ese Financial Services (Pty) Ltd v Cramer 1973 (2) SA 805 (C)

Legislation Cited

Prescription Act 68 of 1969 – sections 11(d), 12(3), 13(2), 14(1)
Subdivision of Agricultural Land Act 70 of 1970

Rules of Court Cited

No specific Uniform Rules of Court were discussed in the judgment.

HEADNOTE

Summary

The applicant, Desmond Matthew De Wet, sought specific performance compelling the first respondent, Mark George Barron, to take all steps necessary to transfer an undivided half-share in certain agricultural property in Stellenbosch. The deed of sale had been concluded on 25 July 2014 and included reciprocal obligations dealing with payment of arrear municipal charges and cancellation of a Standard Bank mortgage bond.

When the matter came before Moosa AJ a decade later, the only issue argued was whether the claim for transfer had prescribed. The court held that the debt became due either immediately upon signature or, at the latest, within a reasonable time thereafter, and that the applicant had knowledge of the relevant facts for purposes of section 12(3) of the Prescription Act by at least 2014. Because he failed to interrupt prescription within three years, his claim was extinguished.

The court rejected arguments that prescription was postponed until the mortgage bond was fully repaid, that reciprocal municipal-rates obligations kept the claim alive under section 13(2), or that payments to the municipality constituted acknowledgements of liability under section 14(1). The application was accordingly dismissed with costs on tariff scale B.

Key Issues

Whether a claim for transfer of immovable property under a deed of sale constitutes a “debt” for purposes of the Prescription Act.
When such a debt becomes “due” where the contract specifies no calendar date for transfer.
Whether obligations to settle a mortgage bond or arrear municipal rates are conditions precedent that delay the running of prescription.
Whether joint obligations to a municipality amount to “reciprocal debts” under section 13(2).
Whether the debtor’s conduct amounted to an express or tacit acknowledgement of liability interrupting prescription under section 14(1).

Held

The duty to transfer was a debt as contemplated in the Prescription Act. In the absence of a contractual date the debt fell due on 25 July 2014 or within a reasonable period thereafter, so prescription commenced then. The applicant could, with reasonable diligence, have enforced his rights long before the lapse of three years. Neither section 13(2) nor section 14(1) was triggered, and no other interruption occurred. The claim accordingly prescribed, and the application was dismissed with costs on scale B.

THE FACTS

The applicant and first respondent were longstanding acquaintances. In 2014 the respondent faced foreclosure on the Stellenbosch property held under Deed T[…]. To stave off the scheduled sale in execution the applicant advanced R50 000 directly to Standard Bank. The parties simultaneously executed a deed of sale in which the respondent sold the applicant an undivided half-share in the land for R130 000, recorded the R50 000 payment as part of the purchase price, and allocated joint responsibilities for existing municipal arrears exceeding R55 000.

Clause 4 of the deed provided that transfer would be “given and taken” once both parties had complied with clauses 2 and 3, which dealt with payment of the purchase price, municipal arrears, bond cancellation costs and associated conveyancing fees. The contract contained a standard breach clause obliging the innocent party to give ten days’ written notice before enforcing specific performance.

The applicant paid the purchase price in full and made intermittent municipal-rates payments totalling R20 570 between 2016 and 2021. He took no steps to demand transfer until February 2021, when he made an informal request. On advice that the sale might be void for want of ministerial consent under the Subdivision of Agricultural Land Act, he became despondent and only re-engaged attorneys in August 2023. A formal demand under clause 10 was sent on 13 October 2023; the respondent refused. The application for specific performance was launched on 12 January 2024 and served on 24 January 2024.

THE ISSUES

The crisp dispute was whether the applicant’s right to compel transfer had prescribed in terms of section 11(d) of the Prescription Act. This required the court to decide: when did the debt become due; did any contractual condition precedent postpone claimability; and, if prescription commenced, was it subsequently interrupted or delayed by any statutory mechanism.

ANALYSIS

Moosa AJ began by confirming that an obligation to transfer immovable property is a “debt” for prescription purposes, relying on Ethekwini Municipality v Mounthaven and Blaauwberg Meat Wholesalers v Anglo Dutch Meats. The court then applied the Constitutional Court’s approach in Trinity Asset Management v Grindstone: where a contract specifies no date for performance, the debt is generally due at once unless the parties clearly intended demand to be a condition precedent.

Interpreting the deed of sale as a whole and giving it a sensible, business-like meaning, the court found no textual basis to conclude that repayment of the mortgage loan to Standard Bank postponed the applicant’s right to transfer. Clause 4 simply linked transfer to compliance with clauses 2 and 3, obligations that were immediately exigible. Therefore the debt fell due on 25 July 2014, alternatively within a “reasonable time” well before prescription expired.

The court next considered section 13(2). It held that the joint obligation to pay municipal arrears was not a “reciprocal debt” owed by each party to the other but rather a shared liability to a third-party municipality; consequently, section 13(2) could not forestall completion of prescription.

Turning to section 14(1), Moosa AJ reasoned that the applicant’s unilateral payments to the municipality did not amount to an express or tacit acknowledgement by the respondent of indebtedness to the applicant. No evidence suggested the respondent even knew of the payments, much less acknowledged liability for transfer. Accordingly, prescription was never interrupted.

Having found that prescription commenced in 2014 and was neither interrupted nor delayed, the court concluded that the three-year period in section 11(d) had long since expired when the application was launched in 2024. The claim was therefore extinguished.

REMEDY

The court dismissed the application with costs. Although the first respondent had engaged senior counsel, the court found the matter insufficiently complex to justify scale C fees and limited counsel’s fees to tariff scale B.

LEGAL PRINCIPLES

A claim for transfer of immovable property under a deed of sale is a “debt” as contemplated by the Prescription Act 68 of 1969.

Where a contract contains no express date for performance, the debt is due immediately upon conclusion unless the parties’ intention makes a prior demand a condition precedent. A “reasonable-time” argument cannot extend prescription indefinitely; at best it shifts the due date slightly.

Section 13(2) of the Prescription Act applies only to reciprocal debts owed inter se by contracting parties; joint liabilities to third parties do not qualify.

Unilateral payments by a creditor to third parties do not constitute an acknowledgement of liability by the debtor under section 14(1). For interruption, the debtor must expressly or tacitly admit liability toward the creditor.

Prescription promotes legal certainty and the quality of adjudication; courts will strictly enforce diligence requirements under section 12(3).

Parties who elect to brief senior counsel in straightforward matters risk non-recovery of scale C fees; costs remain within the court’s discretion and must be reasonable in the circumstances.