Leketi v Tladi NO and Others (117/2009) [2010] ZASCA 38; [2010] 3 All SA 519 (SCA) (30 March 2010)

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[2010] ZASCA 38
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Leketi v Tladi NO and Others (117/2009) [2010] ZASCA 38; [2010] 3 All SA 519 (SCA) (30 March 2010)

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THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
JUDGMENT
Case
No: 117/2009
In the matter between:
STANLEY ELLIAS LEKETI
Appellant
and
MOGALE ANDREW TLADI N.O.
First Respondent
FILIKANA HICKABOTH PETLELE
Second Respondent
ALBERT MOERANE
Third Respondent
THE REGISTRAR OF DEEDS
Fourth Respondent
Neutral citation:
Leketi
v Tladi
(117/09)[2010]
ZASCA 38 (30 March 2010)
Coram:
MTHIYANE,
NUGENT JJA, HURT, GRIESEL and SALDULKER AJJA
Heard:
5
March 2010
Delivered: 30 March 2010
Summary:
Prescription
─ Plaintiff’s claim based on fraud committed on 25 June 1969 ─
claim only instituted in February 2004 ─ special
plea of
prescription upheld ─ held at the trial and on appeal that by
exercising reasonable care knowledge of minimum facts necessary
for
plaintiff to institute claim could have been obtained in time ─
argument that fraud was a continuing wrong rejected.
___________________________________________________________
ORDER
On appeal from:
North
Gauteng High Court (Pretoria) (Thlapi AJ sitting as court of first
instance):
‘
The appeal is dismissed with
costs.’
JUDGMENT
MTHIYANE JA (Nugent JA, Hurt,
Griesel and Saldulker AJJA concurring)
[1] The appeal is against the
judgment and order of the North Gauteng High Court (Thlapi AJ)
upholding a special plea of prescription
and dismissing with costs,
the appellant’s claim against the executor (the first respondent)
and the second and third respondents,
the beneficiaries of the estate
of his grandfather, the Late Albert Mogale (Albert), for a declarator
and vindicatory relief aimed
at recovering from that estate immovable
property, known as Nooitgedacht No. 287 situated in the District of
Rustenburg (the property),
which he alleged was the property of his
father, the Late George Mogale (George), who died on 5 January 1966.
[2] The appellant alleged that on
25 June 1969 Albert fraudulently caused the property to be
transferred and registered in his name,
by representing to the
Registrar of Deeds, Pretoria (the fourth respondent) that he was the
only male heir of George and thus entitled
to the property upon
intestate devolution according to Black custom. Albert also failed to
disclose that George was survived by three
children from his marriage
with the appellant’s mother, Safira Mogale. These children were:
the appellant born on 7 April 1959,
Audrey Mogale born on 17 February
1953 and Merona Maledu born on 22 August 1955.
[3] On 18 June 1974 Albert
executed a will in which he bequeathed the disputed property to the
second and third respondents and two
other persons (now deceased) in
equal shares as sole and universal heirs. The appellant and his
sisters, Audrey and Merona, are not
mentioned in the will.
[4] Although Albert’s alleged
fraud took place on 25 June 1969 the appellant’s summons commencing
action was only served on the
first to third respondents between 9
February 2004 and 13 May 2004. The fourth respondent, was only served
on 20 July 2005.
[5] Only the first respondent
pleaded to the summons, the others elected to abide by the decision
of the court. The first respondent
filed a special plea of
prescription, in which he alleged that the appellant’s claim had
become prescribed by lapse of time. He
contended that as the claim
fell due on 15 June 1969, when the property was transferred to Albert
(regard being had to the circumstance
that the appellant attained
majority on 7 April 1980), the running of prescription against the
appellant had been delayed until 7
April 1981 under the provisions of
s 13
of the
Prescription Act 68 of 1969
. The first respondent
contended further that, as the summons was served more than three
years after 7 April 1981, the appellant’s
claim had become
prescribed and accordingly fell to be dismissed with costs.
[6] The appellant replicated that
he could not have instituted action earlier because, until about 6
August 2003, he had had no knowledge
of ‘the identity of the
defendants and the facts from which the debt arose’. He averred
that he only gained knowledge of ‘the
proper identity’ of the
defendants and facts giving rise to the cause of action on or about 6
August 2003, after obtaining information
from certain documents in
the national archives in Pretoria. The documents referred to are the
following:
‘
a copy of the
decree of divorce between Safira Mogale and George Mogale;
confirmation that
the property in issue belonged to George Mogale;
documents relating
to the winding up of the estate of George Mogale;
a declaration by
Albert Mogale that he was the sole surviving male heir of George
Mogale.’
[7] The sole question for
decision at the trial was therefore whether the appellant’s claim
had become prescribed, given that the
fraud which formed the basis of
the claim took place on 25 June 1969 and summons commencing action
was only served in February 2004.
It is not in dispute that because
of the appellant’s minority at that stage, (he was only 10 years
old in 1969) leaving aside the
question of whether or not he knew of
the fraud, the completion of prescription was delayed by virtue of
the provisions of
s 13
of the
Prescription Act. Section
13 of the Act
provides:
‘
(1) If ─
(a) the creditor is
a minor . . .
the period of
prescription shall not be completed before a year has elapsed after
the day referred to in paragraph (i).’
In the context of this case the
‘day’ referred to in para (a)(i) is the day the appellant turned
21, viz 7 April 1980. Thus, in
terms of
s 13(1)(a)
, the completion of
prescription against the appellant would have been deferred until 7
April 1981.
[8] In this context and for the
purposes of considering the provisions of the
Prescription Act, the
appellant is the ‘creditor’ and any obligation on the part of the
estate of Albert to restore to its rightful owner, property
which he
fraudulently appropriated is a ‘debt’
1
as described in
s 11(d)
of that Act. In terms of the section the
ordinary period of prescription for the ‘debt’ is three years
from the date upon which
a debt becomes due. However, the matter is
further complicated by
s 12(3)
which 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: P
rovided
that a creditor shall be deemed to have such knowledge if he could
have acquired it by exercising reasonable care.’
(emphasis added)
[9] It is obviously difficult for
the first respondent to get past the appellant’s bald assertion
that he only obtained knowledge
of the fraud on 6 August 2003 when he
obtained documents from the national archives in Pretoria. It is a
statement that can only
be tested against the probabilities in the
light of the totality of the evidence presented at the trial. The
trial judge rejected
the appellant’s version that he did not know
that the farm belonged to his father, George, and that he only came
to know about
this on 6 August 2003. The learned judge concluded that
‘[i]n all probability the appellant and his sisters knew or were
told even
before they became majors that their right (to the
property) stemmed from the fact that the farm had belonged to their
father.’
The judge set out grounds for this conclusion. She said:
‘
1. Even before
plaintiff’s birth George had been frequenting the farm. According
to Ntlatseng, on the date of plaintiff’s birth
George had gone to
the farm in Rustenburg.
2. According to
Maureen, George used to visit them at their maternal grandfather’s
home in Rustenburg. He came from the farm driving
his tractor;
3. Maureen
approached Hilda and pieces of corrugated iron and a table were
pointed out as the only remaining items from their home
belonging to
them. In my view the home referred to then was the one in which
George lived on the farm. In all probability, Maureen
went to see
Hilda, about the farm which belonged to her father.
4. Maureen
accompanied Hilda to see Hugh Parkes, the attorney. In my view, it is
unlikely that she would have gone to Johannesburg,
if not to
establish first hand, the reason why they could not inherit the farm.
The possibility is there that she was informed of
Albert’s Last
Will and Testament.
5. Their uncle
Nnakgolo George undertook to ensure that they received what
rightfully belonged to them to the exclusion of the other
grandchildren.
6. Independently
they reported Albert’s estate to the Master in Mmabatho. Hilda,
Albert’s surviving spouse or the other grandchildren
did not
feature.’
[10] Although the above reasons
are in themselves compelling, in my view, the real question for
decision in this appeal is whether
on a consideration of the totality
of the available evidence, it can be said that the appellant could
not have acquired knowledge
of the fraud on the part of Albert on 25
June 1969, ‘by exercising reasonable care’, as required in the
proviso to
s 12(3)
of the
Prescription Act.
[11
] One only has to look at his
version to come to the conclusion that he took no steps at all, let
alone ‘reasonable’ steps, to
enforce his claim in a manner
envisaged in
s 12(3)
of the
Prescription Act. The
appellant and his
sisters, Audrey and Merona, knew all along that they were going to
inherit the property, as Albert’s intestate
heirs. The appellant
says he did not know that the property belonged to his late father,
George, nor was he aware that Albert had
made a will bequeathing the
farm to the second and third respondents and two other persons (now
deceased). Albert died in 1976. Understandably
he was too young then
to do anything about the matter. But after graduating from medical
school in 1983 he could have taken steps
to find out in whose name
the property was registered. Instead what did he do? After completing
his medical degree, he set up practice
in Thaba Nchu in 1984 and
later went to practise in Bloemfontein in 1985. Subsequently he moved
to Potchefstroom during 1986 and
finally settled in Springs during
1987.
[12] The appellant testified that
he only started applying his mind to the property issue in 1986 and
1987 when he returned to practise
in Gauteng. In reply to a question
in cross-examination he said it did not strike him as strange that
after 11 years the property,
which was his entitlement, had not yet
been transferred and remarked somewhat curiously:
‘
It was not
strange for me at that point because at that point there was no
dispute / I came back from my studies and I needed to inquire
who was
then taking care of the property.’
It is clear from the above remark
that claiming the property was the least of his priorities. He was
more concerned about who was
taking care of the farm because he had
obtained information that there was a company that was carrying on
mining operations on it
and another person who had planted sunflowers
there. It is not clear from the record what those enquiries yielded.
[13] Two years later in 1989 the
appellant and his sister Merona went to consult an attorney, Mr
Makhambeni, to seek advice on how
to deal with the ‘people that
were mining granite’ on the farm and those ‘who had planted
sunflower for the trading’ purposes.
There is no indication that
the appellant sought to instruct Makhambeni to enforce his
entitlement to the farm. Makhambeni requested
them to obtain the
marriage certificate of their parents, confirming that they were born
of George and their mother, Safira Mogale.
They were also asked to
obtain copies of death certificates of George and Albert and some
confirmation that George was the son of
Albert.
[14] Merona obtained the
requested documents from the Department of Home Affairs, Rustenburg,
and when she returned to Makhambeni’s
office with them in 1990 she
discovered that he had been struck off the roll of attorneys.
[15] In the meantime the
appellant was having discussions with members of the family and the
purpose and details of these meetings
is far from clear from the
record. Be that as it may, they culminated in the appellant meeting
one of his aunts, Ms Nthlaseng Mogale,
from whom he went to ‘check’
who was actually taking care of the farm. His aunt referred the
appellant to her brother, George
Nagole Mogale, who was ‘the one
who had been taking care of the farm’. The appellant and his
sister, Merona, went to visit the
gentleman concerned and he assured
them that he would see to it that the farm was returned to them. It
appears from the record that
this meeting took place around 1999.
Arrangements were then made for the appellant and his sisters to go
to Tlhabane Magistrates’
court, presumably for the purpose of
winding up the estate of Albert who died in 1976. The appellant’s
uncle, George Nagole Mogale,
most unfortunately died in 2001 before
the visit to the Tlhabane Magistrate’s court.
[16] Merona ended up going to the
magistrate together with her and the appellant’s half brother,
Sipho Leketi. On 21 September 2001
they were issued with a letter of
authority which authorized them to take control of the assets of the
estate of Albert. On 29 November
2002 the said letter of authority
was withdrawn, when it was discovered that Albert had in fact died
testate and consequently the
first respondent was appointed the
executor of the estate of Albert.
[17] The appellant is not an
ordinary lay person. He is a medical practitioner, who qualified as
such in 1983. He commenced his practice
in 1984 and was certainly at
that stage in a position to engage an attorney to secure transfer of
the farm into his name. On his
own version as early as 1978 there was
never any dispute as to whom the farm (the property) was to go to.
[18] Obtaining a deed of transfer
from the Deeds Registry would have provided the appellant with the
required minimum facts for the
institution of a claim against the
estate of his grandfather, Albert, much earlier than on 6 August
2003. It seems to me that the
adverse operation of
s 12(3)
is not
dependent upon a creditor’s subjective evaluation of the presence
or absence of ‘knowledge’ or minimum facts sufficient
for the
institution of a claim. In terms of
s 12(3)
of the
Prescription Act
the
‘deemed knowledge’ imputed to the ‘creditor’ requires the
application of an objective standard rather than a subjective one.
In
order to determine whether the appellant exercised ‘reasonable
care’ his conduct must be tested by reference to the steps
which a
reasonable person in his or her position would have taken to acquire
knowledge of the ‘fraud’ on the part of Albert.
(See
Drennan
Maud & partners v Pennington Town Board
.
2
)
On the application of that objective standard, it is clear that if
the appellant had exercised reasonable care he could have acquired
knowledge of the fraud, long before the claim prescribed, and thus
the requisite minimum facts to enable him to institute his claim
timeously.
[19] On the evidence, it is clear
that the appellant’s failure to institute action timeously was not
due to his lack of or inability
to obtain knowledge but rather to his
dilatoriness as correctly found by Thlapi AJ. It took him 6 years
(1981 – 1987) after his
claim had prescribed to begin to make
enquiries. It seems that he was more concerned about establishing the
identity of the person
who was ‘taking care of the farm’ so as to
take up the issue as to who was conducting mining operations on the
property and who
were planting sunflowers. It then took him another 3
years (1987 – 1990) to consult an attorney for the first time. The
appellant
was not indigent and had the means to instruct an attorney.
Then some 14 years passed before the appellant made enquiries about
documents,
which were ultimately retrieved from the National
Archives, Pretoria on 6 August 2003. In these circumstances it is
difficult to
disagree with the judge a quo’s finding that the
appellant’s dilatory and nonchalant conduct was the key
contributory factor
to his purported inability to obtain ‘knowledge’
timeously.
[20] A further ground advanced by
the appellant for his contention that his claim has not prescribed is
that the fraud committed by
his grandfather, Albert, on 25 June 1969
was a continuing wrong. Mr Bokaba for the appellant, argued that for
as long as the property
remained registered in the name of Albert,
the claim remains alive. No authority was cited for the submission
that a claim based
on fraud does not become prescribed.
[21] The point is clearly without
merit. Fraud is an act of deceit which resulted in a single act of
transfer and registration which
was completed on 25 June 1969. It is
that single act which constitutes the appellant’s cause of action
and does not amount to a
continuing wrong. (cf
Barnett
& others v Minister of Land Affairs & others
3
)
[22] In the result and on either
basis the appellant fails. The following order is made:
‘
The appeal is dismissed with
costs.’
________________________
K
K Mthiyane
Judge
of Appeal
APPEARANCES
APPELLANT: T J B Bokaba SC
(with him D C Mpofu)
Instructed by Noko Inc,
Pretoria
Naudes, Bloemfontein
FIRST RESPONDENT: F J Erasmus
Instructed by Rooth Wessels Motla
Conradie, Pretoria
Rosendorff Reitz Barry,
Bloemfontein
1
In
Barnett
& others v Minister of Land Affairs & others
2007 (6) SA 313
(SCA) it was said at para 19: ‘Though the Act does
not define the term “debt,” it has been held that, for purposes
of the
Act, the term has a wide and general meaning and that it
includes an obligation to do something or refrain from doing
something.’
After referring to other relevant authorities Brand JA
went further to say there is no reason why the term ‘debt’ would
not
include ‘a claim for the enforcement of an owner’s right to
property.’ He cited with approval
Evins
v Shield Insurance Co Ltd
1979 (3) SA 1136
(W) at 1141F-G where King J said: ‘The word
“debt” in the
Prescription Act must
be given a wide and general
meaning denoting not only a debt sounding in money which is due, but
also, for example, a debt for
the vindication of property.’
2
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA) at 209F-G.
3
At 320I-321A.