About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Supreme Court of Appeal
SAFLII
>>
Databases
>>
South Africa: Supreme Court of Appeal
>>
2012
>>
[2012] ZASCA 33
|
|
BBS Empangeni CC (Formerly ZTC Cash Build CC) v Phoenix Industrial Park (Pty) Ltd and Another (203/11) [2012] ZASCA 33 (29 March 2012)
Links to summary
THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case No: 203/11
(Not reportable)
In
the matter between:
B B S EMPANGENI CC
(FORMERLY ZTC CASH BUILD CC)
…........................................................
Appellant
and
PHOENIX INDUSTRIAL PARK (PTY) LTD
…..................................
First
Respondent
MORELAND ESTATES (PTY) LTD
….........................................
Second
Respondent
Neutral citation:
BBS
Empangeni CC v Phoenix Industrial Park (Pty) Ltd
(203/2011)
[2012] ZASCA 33
(29 March 2012).
Coram:
Brand, Heher, Van
Heerden, Cachalia JJA, Boruchowitz AJA
Heard:
16 February 2012
Delivered: 29 March 2012
Summary: Extinctive Prescription –
claim prescribed – contractual obligations underlying claim no
longer enforceable
– contract not capable of being repudiated.
________________________________________________________________
ORDER
________________________________________________________________
On appeal from:
KwaZulu-Natal
High Court, Durban (Swain J sitting as court of first instance):
The appeal is dismissed with costs,
such costs to include the costs of two counsel for the first
respondent and one counsel for
the second respondent.
________________________________________________________________
JUDGMENT
________________________________________________________________
CACHALIA JA (Brand, Heher, Van Heerden
JJA, Boruchowitz AJA concurring):
[1] This is an appeal from a judgment
of Swain J sitting in the KwaZulu-Natal High Court. He held that a
contractual claim arising
from the sale of certain vacant land in an
industrial township had become prescribed. The appellant, represented
by its member,
Mr Donovan William Balmer, bought the land from the
respondents under a sale agreement on 11 January 1990. With leave
from the
high court, it appeals against the finding of that court.
[2] The dispute goes back many years –
more than two decades – and it is necessary to describe its
history. In terms
of the agreement the appellant paid to the
respondents a stipulated deposit of R45 500 – which amounted to
ten per cent of
the purchase price. The balance was to be paid upon
registration of transfer. The sale was subject to two suspensive
conditions:
first, the Surveyor-General’s approval of the
sub-divisional diagram consolidating the four lots of land that were
the subject
of the agreement and second, the City Engineer’s
certification of compliance in terms of s 148 of the Durban Extended
Powers
Consolidated Ordinance 18 of 1976. The agreement stipulated
that the property would become transferable as soon as these
conditions
were fulfilled.
[3] A dispute arose between the
parties almost immediately over aspects of the completion of the
industrial township. Mr Balmer
was troubled that there was inadequate
provision made for features relating to security, street lighting,
tarred roads and services.
I shall refer to these as the security
features. His unease arose because the industrial township was
located near an area with
high unemployment and criminality. The
country was also in a state of political uncertainty and there was
some unrest in the area.
Mr Balmer therefore felt that he would not
be able to commence business on the property.
[4] These circumstances made Mr Balmer
less enthusiastic about taking transfer of the property and he
approached the respondents
to cancel the agreement. They demurred and
insisted that he pay the balance of the purchase price. His attorneys
then made written
representations to the respondents to delay
transfer of the property until his security concerns were allayed,
but they accepted
‘unequivocally’ that he was ‘bound
to take transfer’. In other words, Mr Balmer did not
dispute his
obligation to take transfer of the property and to pay
the purchase price.
[5] The respondents, however,
maintained that the security provided for in the development was
adequate and that, in any event,
there were no warranties regarding
the security features in the agreement. They proceeded to enforce the
agreement by demanding
payment of the balance of the purchase price
against tender of registration of transfer. The appellant responded
to the demand
by reiterating its earlier stance regarding the delay
of the transfer. It also offered to give the respondents ‘a
bank guarantee
for the payment of the purchase price against transfer
at some later stage’.
[6] The respondents indicated that
they were willing to delay payment of the full purchase price only
until 29 February 1992 on
condition that the appellant paid an
additional sum of R100 000 as consideration by 18 October 1991.
Mr Balmer did not pay
this amount and now insisted that he would
pay for the land only when the development was completed as
originally envisaged. This
stance was a change from his earlier
acknowledgment that he was liable to take transfer. To support his
new standpoint he referred
to the contents of a pamphlet that the
respondents had shown him at the time he agreed to buy the land. The
pamphlet depicted the
detail of the completed development including
the security features.
[7] The dispute was not resolved and,
on 13 August 1992, the respondents applied to the high court to order
the appellant to pay
the transfer costs and the balance of the
purchase price against tender of transfer of the land. The appellant
duly delivered its
answering affidavit in which it asserted –
reflecting its new stance – that the agreement was to be
rectified to include
the security features referred to in the
pamphlet so as to accord with the common intention of the parties.
[8] The appellant also disputed that
the second suspensive condition mentioned above – the City
Engineer’s compliance
certificate – had been fulfilled.
The City Engineer issued a certificate on 15 March 1991. The
appellant took the point that
s 148(2) of Ordinance 18 of 1976 called
for the Town Clerk – not the City Engineer – to sign the
certificate. This
meant, so the appellant asserted, that the
respondents were not in a position to pass transfer of the property.
The respondents
did not file a replying affidavit and, during
February 1992, they enrolled the matter to be heard on an
allocated date, but
the matter did not then proceed. The parties took
no further steps and, on 11 September 1992, the respondents
removed the
matter from the roll.
[9] In the interim the respondents
were advised by counsel that Mr Balmer’s defence concerning the
fulfilment of one of the
two suspensive conditions – the
compliance certificate – was good. The implication of this
advice was that this condition
had not been fulfilled and the
property was therefore not registrable. During June to October 1994
the respondents’ attorneys
again attempted to persuade Mr
Balmer to take transfer, but he remained unyielding.
[10] On 4 October 1994, the
respondents were registered as the title holders in the Certificate
of Registered Title – an event
of which Mr Balmer was at the
time not aware. Nevertheless, the consequence was that it was no
longer in dispute that both suspensive
conditions had now been
fulfilled, and the property could have been transferred to the
appellant in terms of the agreement.
[11] Although there was further
communication between the parties concerning the implementation of
the agreement, the respondents
made no particular mention that the
property had become registrable. However, on 17 October 1994,
Mr Yarker, the respondents’
attorney, wrote to Mr Balmer
to discuss finalisation of the matter.
[12] By December 1994 the respondents
considered cancelling the sale, but there is no clear evidence that
they did so. At about
this time there was a telephone conversation
between Mr Kenneth Forbes of the respondents and Mr Balmer
during which Mr Forbes
asked Mr Balmer whether he was prepared to
take transfer of the property. Mr Balmer again refused. Beyond this,
what exactly was
said had faded from their memories. What is clear is
that Mr Balmer remained unwilling to take transfer of the property as
the
issues pertaining to his security concerns had not been resolved.
Mr Forbes was left with the impression that Mr Balmer was
not
interested in proceeding with the sale. The respondents then began to
explore options to find another buyer for the property.
There was no
further communication between the parties for several years.
[13] On 18 October 2000, unbeknown to
the appellant, the respondents sold the property to the eThekwini
Municipality, and transfer
was passed on 20 December 2002. Three
more years went by.
[14] On 4 November 2005 – almost
11 years after his last communication with the respondents –
Mr Balmer stirred.
He requested his attorneys to establish what
had happened to the property, and discovered that the municipality
owned it. So he
instructed his attorneys to recover the deposit he
had paid in 1990 together with interest, but the parties were not
able settle
this dispute either. The appellant believed that the sale
and transfer of the property was a breach of the agreement between
the
parties and an ‘uncommunicated’ repudiation of it.
[15] On 11 July 2006 the appellant
notified the respondents’ attorneys that it had elected to
cancel the contract and to claim
repayment of the deposit plus
‘damages’ in the amount of R390 000, ‘being the
return which [the appellant] would
have earned on the [deposit] over
the last 16 years’. These amounts were not forthcoming.
[16] On 19 July 2006, the appellant
resuscitated the dormant application by delivering a supplementary
affidavit and, on 21 August
2006, it commenced an action against the
respondents for recovery of the deposit as well as damages for breach
of contract amounting
to R3 125 500. The amount of damages was
calculated by subtracting the purchase price of the property from its
market value as
at 11 July 2006. It is evident that there had been a
dramatic increase in the value of property since the agreement was
concluded
in 1990.
[17] The respondents delivered their
pleas and special pleas in the action on 20 November 2006 and
their replying affidavits
in the application proceedings on 11 May
2007. On 15 May 2007 the high court referred the question of costs –
which was the
only remaining issue in the application proceedings –
to the trial court. The trial commenced on 19 October 2009.
Proceedings
were adjourned and resumed on 1 December 2010. The court
delivered its judgment promptly on 6 January 2011. It dismissed the
appellant’s
action and granted it leave to appeal on 4 March
2011.
The proceedings before the trial
court
[18] The central issue before the
trial court was whether the respondents had repudiated the agreement
with the appellant by selling
the property to the municipality in
October 2000. The appellant’s case was that they had, which
entitled it to cancel the
agreement. The respondents pleaded that
they had cancelled the agreement before selling the property and had
informed Mr Balmer
that they had done so, after the appellant had
repudiated the agreement by refusing to take transfer. The
respondents also advanced
alternative defences. The first respondent
alleged that the appellant had waived or abandoned its rights under
the agreement. The
second respondent contended that the appellant had
represented to the respondents that it no longer wished to be bound
by the agreement,
and was thus estopped (prohibited) from asserting
the contrary.
[19] The respondents further pleaded
that the appellant’s claim had become prescribed. In this
regard two distinct periods,
associated with two distinct claims,
were in issue: first, from the time when the suspensive conditions
had ultimately been satisfied
on 4 October 1994 and the transfer of
the property to the municipality on 20 December 2002, when the
respondents were alleged to
have repudiated the agreement, and
second, the period between 20 December 2002 and the issue of
summons on 21 August 2006.
If the first period applied, the
appellant’s claim to demand transfer of the property would have
become prescribed on 3 October
1997. In the case of the second
period the prescriptive period would have expired by 19 December 2005
in respect of the appellant’s
right to claim cancellation of
the agreement, payment of the deposit and damages.
[20] In deciding whether or not the
respondents had validly cancelled the agreement before transferring
the property to the municipality,
the judge considered that, once
they had changed their election from specific enforcement in the
application proceedings to cancellation,
they were obliged under the
agreement to notify the appellant of this fact. He held that the
evidence did not establish that the
respondents had done so. In the
light of this conclusion the court deemed it unnecessary to consider
whether the appellant’s
conduct in refusing to take transfer
amounted to a repudiation of the agreement, entitling the respondents
to cancel the agreement.
The court also briefly considered the first
and second respondent’s waiver and estoppel defences
respectively, and rejected
both. This left prescription.
[21] Concerning the first period
referred to above – 4 October 1994 to 20 December 2002 –
the trial court held
that prescription had begun to run in respect of
the respondents’ right to claim payment and also of the
appellant’s
right to claim transfer on 4 October 1994, when the
suspensive conditions were satisfied. It also held that the appellant
ought
reasonably to have ascertained this fact by December 1994, when
– from the communications between the parties’
representatives
– it would have been clear to the appellant
that the respondents were ready to transfer the property.
Furthermore, the court
concluded, there was no merit in the
appellant’s contention that the respondents had wilfully
concealed the fulfilment of
the suspensive conditions from it. The
appellant’s claim was thus held to have become prescribed.
[22] The court also considered and
rejected another of the appellant’s contentions – that
the launching of application
proceedings by the respondents in August
1992 constituted an acknowledgment of liability to transfer the
property and therefore
‘interrupted’ the running of
prescription as contemplated in s 14(2) of the Prescription Act 68 of
1969 (the Act).
The judge reasoned that when the respondents began
those proceedings, they did so because the appellant had maintained
that it
was not obliged to pay the purchase price. Whether the
appellant was justified in its stance, the court said, was of no
consequence.
What was relevant, it continued, was that the
respondents had not believed that they were liable to transfer the
property to the
appellant without the latter’s payment of the
balance of purchase price and the transfer costs. And, the court
concluded,
in the absence of the respondents’ unconditional
acknowledgment of liability to pass transfer, prescription had not
been
interrupted.
[23] The conclusion that the claim had
become prescribed during the first period made it unnecessary for the
trial court to consider
the second period, 20 December 2002 to
21 August 2006. The judge nevertheless did so ‘for the sake of
completeness’.
He found that the appellant had consciously
refrained from enquiring what had happened to the property for fear
that this may revive
the respondents’ demand that it take
transfer. And, the court concluded, in the light of the fact that the
respondents had
sold the property to the municipality in October
2000, this information would have been available to the appellant –
at the
latest by the end of 2001 – by the exercise of
reasonable care.
[24] As to whether the respondents had
wilfully refrained from disclosing the sale of the property, the
court held – as it
did regarding the disclosure of the
fulfilment of the suspensive conditions – that they had not. In
this regard the court
accepted the respondents’ evidence that,
by the time they had decided to sell the property to the
municipality, they had
assumed that the agreement had been cancelled.
There was consequently no reason, the court said, for the respondents
to have intentionally
withheld this information from the appellant.
Therefore, and allowing the appellant another reasonable period of
six months after
the end of 2001 within which to make an election to
treat the contract as at an end, prescription, the court held, began
to run
from no later than 1 July 2002, and would thus have run its
course by 30 June 2005. Therefore, the judge concluded, because the
appellant served its summons only on 21 August 2006, its claim for
cancellation of the agreement, payment of the deposit and damages
had
also become prescribed during the second period.
The grounds of appeal
[25] As will become apparent later in
this judgment, I think that the judge’s finding that
prescription had begun to run on
4 October 1994, when the suspensive
conditions were fulfilled, and that the appellant’s claim had
become prescribed well
before the respondents transferred the
property to the municipality in December 2002, disposes of the
appeal. The appellant advanced
three grounds of criticism against the
finding. First, that the high court had erroneously assumed that the
appellant’s cause
of action was for the transfer of the
property because of the respondents’ correlative right to
demand payment as at 4 October
1994. The appellant’s true cause
of action, it was contended, was based on the respondents’
repudiation of the agreement,
which occurred when they transferred
the property to the municipality much later. And the claim arising
from the repudiation only
arose on 11 July 2006, when the appellant
exercised its election to cancel the contract. Second, it was
contended, the appellant’s
cause of action on 4 October
1994, as pleaded in its opposing affidavit in the application
proceedings, was for the agreement
to be rectified, which is a claim
that cannot prescribe because it is not a claim in respect of a debt.
Third, the respondents’
cause of action was in any event not
complete on 4 October 1994 because they had not installed the
security features under the
rectified agreement. This means, so the
contention went, that the respondents’ claim to receive payment
(and the appellant’s
obligation to take transfer) could not
have begun to run then.
I deal with the
appellant’s three contentions in turn.
[26] As to the first – that its
claim was not for the transfer of property, I do not believe that the
judge misunderstood
the nature of the appellant’s claim. What
the court found under this heading was that the appellant’s
claim for the
transfer of the property had become prescribed before
the respondents sold the property to the municipality – and the
appellant
thus had no enforceable obligation against the respondents.
In consequence the sale could not constitute a repudiation of the
agreement.
I have no conceptual difficulty with this line of
reasoning.
[27] It is beyond dispute that the
suspensive conditions were fulfilled by 4 October 1994. This
means that the respondents’
claim for payment of the purchase
price as against their obligation to transfer the property to the
appellant arose then. So prescription
would have begun to run against
this claim – and the appellant’s correlative claim for
transfer of the property –
on 4 October 1994, when the debt
became due in terms of s 12(1) of the Act. Both claims, being
reciprocal, would thus have become
prescribed three years later, on 3
October 1997.
1
However, if the respondents had
wilfully withheld information regarding the fulfilment of the
suspensive conditions – and
that the debt was therefore due –
from the appellant, prescription would not have commenced running
until the appellant became
aware of the existence of the debt.
2
The appellant would be deemed to have
had such knowledge if it could have acquired it by exercising
reasonable care.
3
As I have mentioned the high court
decided these issues in the respondents’ favour. The appellant
takes issue with these findings.
[28] Concerning the first finding,
that the non-disclosure of the fulfilment of the suspensive
conditions was wilful, the appellant
submits that the respondents
deliberately withheld this information – the consequence of
which was that the property had
become registrable – from it
for fear of having to pay its costs in the application proceedings.
[29] The evidence shows that after
their attorneys advised them that the point taken by the appellant
regarding the validity of
the certificate was good, the respondents
resubmitted the sub-divisional diagram for endorsement after
correcting the error, even
though it had been pointed out to them
that resubmission might lead to an adverse costs order against them.
The respondents instructed
their attorneys to oppose such an order on
the ground that the practice had always been for transfers to take
place under the city
engineer’s endorsement. However, there is
not a scintilla of evidence to support the suggestion that the
respondents had
deliberately withheld information regarding the
resubmission from the appellant. The high court correctly found that
the evidence
showed that the respondents had throughout, at least
until the discussion between Mr Forbes and Mr Balmer in December 1994
–
two months after the certificate of registered title had been
granted – evinced an intention to proceed with the transfer.
It
is any event improbable that the respondents would have consciously
prevented the appellant from coming to know that the property
had
become registrable for the simple reason that they wanted the
property transfer to go ahead – not delayed or terminated
–
and were frustrated because Mr Balmer appeared to be intent on
delaying it. Furthermore, it was never put to any of
the respondents’
witnesses that they had withheld this information from the appellant
for fear that the appellant would seek
a costs order against them.
The evidence simply falls far short of establishing that the
respondents deliberately withheld this
information from the
appellant, and the high court was correct to dismiss this argument.
[30] I turn to the appellant’s
second submission – that the high court erred in finding that
Mr Balmer ought to have
known by no later than December 1994 that the
property had become registrable had he exercised reasonable care. In
this regard
the appellant contends that it was perfectly reasonable
for it to have done nothing while the dispute regarding the
non-fulfilment
of the suspensive conditions and rectification were,
in Mr Balmer’s words, ‘locked . . . up in the courts’.
This
was a reference to the fact that nothing had come of the motion
proceedings that the respondents had initiated (but removed from
the
roll). The judge, however, meticulously recorded the interactions
between the respondents and Mr Balmer from June to December
1994, and
particularly the conversation between Mr Forbes and Mr Balmer in
December – when Mr Forbes pressed Mr Balmer
to take
transfer of the property. As the evidence showed, Mr Balmer demurred
and informed Mr Forbes that he was not in a position
to take transfer
then. In effect Mr Balmer again wanted to delay the transfer as he
had done virtually from the beginning.
[31] Although Mr Forbes could not
recollect the detail of the conversation – understandably,
because it had taken place so
long ago – there is no evidence
that Mr Balmer enquired whether the requisite certificate from the
municipality had been
obtained. This behaviour is strange for a
person who was advised to resist the respondents’ attempt to
enforce the agreement
by taking a technical point that the
certificate was not signed by the correct official, and a few months
later, when he was asked
whether he was prepared to take transfer,
did not enquire – then or soon afterwards – whether this
problem had been
solved.
[32] I do not think that Mr Balmer’s
excuse that he had no need to do anything while the motion
proceedings were pending passes
the test for the exercise of
reasonable care. The contrary is true. By December 1994, following
the conversation with Mr Forbes,
it must have been clear to Mr Balmer
that the respondents were ready to transfer the property to him
whatever the status of their
legal dispute. But it is equally clear
that Mr Balmer was not interested in taking transfer of the
property; at best he was
intent on delaying the process until his
security concerns were addressed, at worst he wanted to walk away
from the agreement,
and was prepared to use any excuse to achieve
this. This attitude, rather than the fact that the litigation had not
been finalised,
appears to have been the probable reason for
Mr Balmer’s failure to act diligently to establish whether
the suspensive
conditions had in fact been satisfied. Again, the
appellant’s criticism of the high court’s judgment must
founder.
[33] This brings me to the appellant’s
third submission – that its rectification defence in the
application proceedings,
being a claim that cannot prescribe, meant
that its claim on the ‘rectified’ contract could not have
become prescribed.
The corollary of this submission is that
prescription could not have begun to run against the respondents’
claim for payment
of the purchase price on the unrectified agreement
on 4 October 1994.
[34] This submission has no merit. The
appellant’s cause of action as pleaded in its particulars of
claim was that the respondents
repudiated the agreement concluded in
1990 – not the rectified agreement. In respect of that
agreement, as I have mentioned,
it is common cause that prescription
began to run on 4 October 1994 against both the respondents’
claim for payment
of the purchase price and the appellant’s
corresponding obligation to take transfer. And once the claim based
on that agreement
became prescribed, the respondents could logically
no longer have repudiated it.
[35] Moreover, the respondents are
correct in their submission that the claim for rectification was not
one that, if successful,
was an answer to their claim for payment of
the purchase price. This is because the clause that the appellant
sought to have inserted
into the contract, as formulated in its
answering affidavit, did not create reciprocal obligations – it
provided only that
the respondents install the security features
within a reasonable time of the fulfilment of the suspensive
conditions. The respondents
were never placed in
mora
in
respect of the obligation that that clause would create. So the
appellant’s assertion that prescription of the respondents’
claim for payment of the purchase price had not started to run
because the security features had not been installed is incorrect.
[36] Finally, the appellant submitted
that, if prescription had begun to run against it on 4 October 1994,
the respondents’
admission in their founding papers in the
application that they were obliged to give transfer to the appellant
upon fulfilment
of the suspensive conditions, amounted to an express
or tacit admission of liability to give transfer to the appellant
against
payment of the purchase price. Therefore, so the submission
went, in terms of s 14(1) of the Act the running of prescription was
interrupted when these admissions were made.
[37] Section 14(1) of the Act says
that the running of prescription is interrupted when a debtor
acknowledges liability, and s 14(2),
that prescription runs afresh
from the day of the interruption. The appellant contends that, when
the respondents acknowledged
their legal responsibility to transfer
the property to the appellants in the application proceedings –
which, it said, was
a continuing or recurring admission of liability
– prescription was interrupted. The trial court rejected the
contention
holding that the tender to transfer the land was
conditional upon the appellant’s unconditional acceptance of an
obligation
to furnish a guarantee to secure payment of the purchase
price and to pay transfer costs, which did not happen. Being
conditional,
so it was held, the respondents’ acknowledgment
was not an admission of liability as contemplated by the section.
[38] The appellant contends that the
court was incorrect to characterise the respondents’ tender to
transfer the property
against payment of the purchase price as a
‘conditional’ acknowledgement, which fell outside the
ambit of s 14(1).
In my view the judge again was correct. In
Road
Accident Fund v Mothupi
4
this court said that whether or not a
statement constitutes an acknowledgement of liability for the purpose
of s 14 of the Act is
a question of fact turning on the intention of
the debtor – the respondents in this case. It is clear from a
fair reading
of the respondents’ founding affidavit in the
application proceedings and their evidence at the trial that they
were only
prepared to give transfer of the property if the appellant
accepted its reciprocal obligation to take transfer and pay the
purchase
price. And, even though the appellant had initially accepted
that it was ‘bound to take transfer’, it changed tack
because of Mr Balmer’s security concerns; its stance was that
it was not obliged to take transfer or to pay the balance of
the
purchase price – hence the respondents’ decision to
enforce the contract. The respondents’ tender to transfer
the
property was therefore conditional upon the appellant accepting that
it was liable to take transfer and to pay the purchase
price –
and did not amount to an acknowledgment of liability contemplated by
s 14 of the Act.
[39] To conclude, the high court
correctly held that both the appellant’s and the respondents’
claims arising from the
agreement had become prescribed before the
property was transferred to the municipality in 2002. This means that
when the property
was transferred there was nothing left of the
agreement to be repudiated. This conclusion renders it unnecessary to
consider the
other findings of the high court.
[40] The following order is made. The
appeal is dismissed with costs, such costs to include the costs of
two counsel for the first
respondent and one counsel for the second
respondent.
5
______________
A CACHALIA
JUDGE OF APPEAL
APPEARANCES
For Appellant: G D Harpur SC
Instructed by:
Pearce Du Toit and Moodie, Durban
Naudes Attorneys, Bloemfontein
For first Respondent: P J Olsen SC
(with him P J Combrinck)
Instructed by:
Livingston Leandy Inc, Durban
McIntyre & Van der Post,
Bloemfontein
For second Respondent: A M Stewart SC
Instructed by:
Garlicke & Bousfield Inc, Durban
Webbers Attorneys, Bloemfontein
1
Santam
Ltd v Ethwar
[1998] ZASCA 102
;
1999
(2) SA 244
(SCA) at 255B-G.
2
Section
12(2)
of the
Prescription Act provides
: ‘If the debtor
wilfully prevents the creditor from coming to know of the existence
of the debt, prescription shall not
commence to run until the
creditor becomes aware of the existence of the debt.’
3
Section
12
(3) of the
Prescription Act provides
: ‘A
debt shall not be deemed to be due until the creditor has knowledge
of the identity of the debtor and of the facts
from which the debt
arises: Provided that a creditor shall be deemed to have such
knowledge if he could have acquired it by exercising
reasonable
care.’
4
See
Road Accident Fund v Mothupi
2000
(4) SA 38
(SCA) para 37.
5
The
second respondent engaged the services of only one counsel for the
appeal.