Stemmet and Another v Mokhethi and Another (A21/2021) [2022] ZAFSHC 55; [2022] 2 All SA 896 (FB) (17 March 2022)

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[2022] ZAFSHC 55
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Stemmet and Another v Mokhethi and Another (A21/2021) [2022] ZAFSHC 55; [2022] 2 All SA 896 (FB) (17 March 2022)

IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
no:
A21/2021
In
the matter between:
GIDEON
JAKOBUS PETRUS STEMMET
1
st
Appellant
ELAINE
STEMMET
2
nd
Appellant
and
TSELISA
JAMES MOKHETHI
1
st
Respondent
MMAKWALENG
NAOMI
MOKHETHI
2
nd
Respondent
CORAM:
MBHELE AJP, DAFFUE J
et
MATSHAYA AJ
HEARD
ON:
07 FEBRUARY 2022
DELIVERED
ON:
17 MARCH 2022
JUDGMENT
BY:
MATSHAYA AJ
This
judgment was handed down electronically by circulation to the
parties’ representatives by email and release to SAFLII.
The
date and time for hand-down is deemed to be 09:00 on 17 MARCH 2022.
INTRODUCTION
[1]
The appellants were the unsuccessful defendants in the Magistrate’s
Court sitting in Bloemfontein.  They were held liable for
fraudulent misrepresentation pertaining to latent defects in their
former dwelling situated in Fichardtpark, Bloemfontein that they sold
to the respondents on 24 May 2013.  The quantum of damages
was
eventually agreed upon in the amount of R128 423.26.
THE
PARTIES
[2]
The appellants are a married couple and the previous co-owners of
19
Vergottini Street, Fichardtpark, Bloemfontein (the property). The
respondents are the successful plaintiffs in the court
a quo
and the purchasers of the aforesaid immovable property.
THE
APPEAL HEARING OF 8 OCTOBER 2021
[3]    This appeal
first served before Daffue J and myself on 8 October 2021 but
during the
post hearing meeting it turned out that we had divergent
views hence the matter was enrolled before the full bench.
FACTUAL
BACKGROUND
[4]    The
appellants entered into a deed of sale in terms of which they sold
their immovable property to the respondents
for an agreed purchase
price of R1 290 000. The said property was registered on
the respondents’ names on 22 July 2013
after which they moved in.
They continued to enjoy the property without any problems until
approximately a year later when the main
bedroom door started
jamming. Then cracks started developing all over the house and
developed wider into structural cracks.
[5]
On 24 June 2014, the first respondent lodged an accidental claim for
the defects on the house with
Absa bank (Absa) where the property was
insured. Absa repudiated the claim through a letter (the Absa letter)
addressed to the first
respondent dated 12 August 2014. In part, the
said letter reads as follows:
“
On inspection
by the assessor it was found that the damages are due to active clay
and it was previously patched, the damage was deemed
old and
gradual
.”
[6]
Subsequent to the Absa letter, the first respondent employed the
services of professional civil
engineers to investigate the cause of
the defects on the property. Mr Kempff inspected the property on 2
occasions. First towards
the end of August and again during September
2014 and prepared a report dated 30 September 2014 pertaining to his
observations and
findings that he furnished to the first respondent.
In the said report, he concluded that:
[6.1]
“
The soil materials occurring next to and
underneath the foundation consists of moderate clay
;
[6.2]
It
should be noted that cracks had been previously repaired, however it
is clear that the cause of the cracking has not yet been dealt
with
as the cracks occur again
;
[6.3]
It
may be concluded that a portion of the foundation is rotating (north
side)
;
[6.4]
We are of
the opinion that the underpinning done previously was not successful
and may lead to more costly alterations/repairs to
the property
.”
[1]
THE JUDGMENT OF THE COURT
A
QUO
[7]
Pertaining to the special plea of prescription, the court
a
quo
, relying upon the
judgments of
Truter
and Another v Deysel,
[2]
Anglorand
Securities Ltd v Mudau and Others
[3]
and
Evins
v Shield Insurance Co Ltd,
[4]
held that the appellants failed to establish that the respondents had
actual or constructive knowledge of the debt on/or before 26
July
2014.  (They received the letter from ABSA Insurance, to which I
shall refer later herein again, on 12 August 2014 and
thus inside the
period of three years prior to institution of the action).
[5]
It reasoned further, that the respondents only became aware of the
debtor upon receipt of the Absa letter on 12 August 2014 and that
is
the date upon which prescription started to run.
[8]
Regarding the merits of the claim, it held that the evidence of the
respondents’ expert
witnesses was unchallenged on all material
aspects, that the second appellant, Mrs Stemmet, (incorrectly
referred to as first defendant)
was not a reliable witness as she
“
made
her case as the matter progressed
.”
Consequently,
the court
a
quo
was satisfied that the respondents proved on a balance of
probabilities that the appellants were aware of the latent defects on
the
property and that they went to great lengths to conceal the
cracks by filling them with plaster and painting over them.
[6]
THE
GROUNDS OF APPEAL
[9]
The notice of appeal
[7]
is confusing. It consists of 35 numbered paragraphs that are not only
repetitive but difficult to comprehend.
[10]     It
is perhaps convenient to quote the heads of argument of appellants’
counsel
verbatim
:
[8]
“
6.
In a nut shell the grounds for appeal relate thereto that:
6.1
The court a quo erred in concluding that respondents have made out a
case for the relief sought
and that the appellants did not have
knowledge of and did not conceal the defects and absolving them from
liability in terms of the
voetstoots clause. (Note: The vital words
“and erred in not concluding” was mistakenly left out by counsel
pertaining to appellants’
alleged lack of knowledge if paragraph 10
of the grounds of appeal is considered).
6.2
The court a quo erred in not finding that the claim had become
prescribed.
6.3
Lastly, the rejection of the evidence of the 2
nd
appellant.
”
ASSESSMENT OF EVIDENCE ON
APPEAL
[11]     It
is trite that when an appeal is lodged against a trial court’s
findings of fact, the appeal court
takes into account that the trial
court was in a more favourable position than itself to form a
judgment because it was able to observe
witnesses during their
questioning and was absorbed in the atmosphere of the trial from
start to finish.
[9]
[12]     The
comment in the previous paragraph must be seen in perspective as an
appeal court may, with the benefit
of an overall conspectus of the
full record, often be in a better position to draw inferences,
particularly with regard to secondary
facts.
[10]
An appeal court may also differ from the court
a
quo
when it appears
from the record and the reasons for the judgment that a witness was
misunderstood or where favourable credibility
findings are not borne
out by the record.  An over-emphasis of the trial court’s
advantages must be avoided as this may lead
to an illusory right of
appeal.
[11]
FACTS NOT IN DISPUTE
[13]     The
following facts are not in dispute:
[13.1]    The
appellants purchased the property in 2005 and had been staying there
for eight years until 2013 when
they sold it to the respondents.
Two deeds of sale were signed by the parties in respect of the
property the first concluded
on 17 February 2013 and the second and
relevant one on 24 May 2013. The respondents visited the property on
two occasions before
they eventually signed the second offer to
purchase.
[13.2]    The
first deed of sale was cancelled for a reason irrelevant to the
present dispute, but on 22 July 2013
the respondents obtained
registration of transfer on their names consequent upon the second
deed of sale whereupon the respondents
took occupation of the
property.
[13.3]
As a result of several cracks appearing on the walls of the property
and other defects, the respondents filed
a claim for “
accidental
damage
”
with ABSA on 24 June 2014 that was repudiated through a letter dated
12 August 2014.
[12]
It read as follows:
“
On
inspection by the assessor it was found that the damages are due to
active clay and it was previously patched, the damage was deemed
old
and gradual.
”
[13.4]    Two
experts testified on behalf of the respondents, to wit Mr W. Kruger,
a consulting engineer and Mr C.N.
Kempff, a registered civil
engineer.  The evidence pertaining to the nature of the cracks,
that the dwelling house was built
in clay, that underpinning of the
foundation of the house was performed at a stage, that cracks had
been filled and painted over
from time to time was not contradicted.
THE
DISPUTED ASPECTS
[14]
The following aspects were in dispute during the hearing:
[14.1]    Whether
the respondents’ claim had prescribed at the time that
they
instituted action against the appellants;
[14.2]    When
were the repairs undertaken to the property as testified to by both
second appellant and first respondent?
[14.3]    Although
no direct evidence was presented on behalf of the respondents
pertaining to the appellants’ knowledge
of latent defects, that the
appellants were aware thereof and that they designedly and
dolo
malo
concealed their existence from the respondents and/or
refrained from informing them thereof. It is the respondents’ case
that the
probabilities favour positive findings in this regard.
[14.4]    Whether
the appellants could rely on the
voetstoots
clause contained
in the deed of sale based on their fraudulent misrepresentation.
LEGAL PRINCIPLES
Prescription
[15]
Section
12(3) of the Prescription Act
[13]
is at the heart of this matter. It can delay prescription in certain
circumstances. It reads as follows:
“
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
.”
Relevant case law
[16]
[16.1]    In
Truter
and Another v Deysel
,
[14]
the court held that
:
“
A debt is due
in this sense when the creditor acquires a complete cause of action
for the recovery of the debt, that is, when the
entire set of facts
which the creditor must prove in order to succeed with his or her
claim against the debtor is in place or….”
(emphasis
added).
[16.2]    In
Minister of Finance and
Others v Gore NO
,
[15]
the Supreme Court of Appeal restated the legal position in the
following terms:
“
This
Court has, in a series of decisions, emphasised that time begins to
run against the creditor     when it
has the
minimum
facts
that are necessary to institute action. 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'.
”
(emphasis added).
[16.3]    See also
Macleod v Kweyiya
[16]
where the following was stated:
“
In order to
successfully invoke s 12(3) of the Prescription Act, either actual or
constructive knowledge must be proved. Actual knowledge
is
established if it can be shown that the creditor actually knew the
facts and the identity of the debtor… The test is what a
reasonable
person in his position would have done, meaning that there is an
expectation to act reasonably and with the diligence
of a reasonable
person. 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.
”
(emphasis added).
[16.4]    In
Links
v Member of Executive Council, Department of Health, Northern
Cape
[17]
,
the Constitutional Court held as follows:
“…
Until
there are reasonable grounds for suspecting fault so as to cause the
plaintiff to seek further advice, the claimant cannot be
said to have
knowledge of the facts from which the debt arises.
”
“
In
a claim for delictual liability based on the Aquilian action,
negligence and causation are essential elements of the cause of
action.
Negligence and, as this court has held, causation have both
factual and legal elements.
Until the
applicant had knowledge of facts that would have led him to think
that possibly there had been negligence and that this
had caused his
disability, he lacked knowledge of the necessary facts contemplated
in in s 12(3)
.
” (emphasis
added).
The
evidentiary burden on prescription
[17]     It is
trite that a defendant (appellants in this case) bears the full
evidentiary burden to prove a plea of
prescription, including the
date on which a plaintiff (respondents in this instance) obtained
actual or constructive knowledge of
the debt. The burden shifts to
the plaintiff only if the defendant has established a prima facie
case.
[18]
ANALYSIS
[18]     On
the aspect of prescription, counsel for the appellants strongly
submitted that prescription started
to run on 24 June 2014 when the
first respondent lodged a claim with Absa and or even before that as
soon as they noticed the cracks
developing. She referred to the first
respondent’s testimony that the bedroom door started jamming and
that numerous structural
cracks developed. She sought to place some
reliance on the fact that the first respondent is a qualified civil
engineer himself and
therefore, ought to have realised even before
lodging the Absa claim that those damages were latent defects that
were actionable.
To buttress this point, she referred to the first
respondent’s testimony that the house was falling apart and
concluded by submitting
that the trial court erred by dismissing the
appellants’ special plea of prescription.
[19]     To
counter this argument, counsel for the respondents submitted that the
respondents only became aware
of the latent defects which would form
the basis of an action on 12 August 2014 when they received the Absa
letter and therefore,
their claim had not yet prescribed at the time
when summons were issued on 27 July 2017.
[20]     To
determine this aspect, I have to revert to the evidence that is on
record. The submissions that were
put forward by the appellants are
not supported by objective facts that appear from the record
particularly during the testimony
of the first respondent if regard
is had to the following:
[20.1]    Firstly,
the first respondent consistently testified that even though he
observed cracks over a period of
time which he described as
structural, he did not know the cause thereof;
[20.2]
Secondly, the above testimony finds credence from the fact that he
lodged a claim with Absa that was described
as ‘accidental damage’;
[20.3]    Thirdly,
when he received the repudiation letter from the insurer, that was
when it dawned to him that there
was previous patchwork on some of
the cracks which was concealed by painting. In view of these
objective facts, coupled with the
Absa letter that was not challenged
by the appellants, the conclusion becomes irresistible that at-least
as on 24 June 2014 the respondents
had not yet acquired the required
minimum facts on which they could base their claim, if any.
[21]     Even
if we were to accept for a moment that on 24 June 2014 they were
aware of structural damages, the
Absa letter acted as an eye opener
to them, that there was something wrong with the property,  in
my view, still they would
not at that stage have  acquired
minimum facts on which to base their claim and would also not
have known the identity
of the debtor in view of the following:
[21.1]    Without Mr
Kempff’s report, they would not have known that the underlying
cause of the defects is the clay soil
on which the property is built;
[21.2]    They would
not have known that the cracks were a mere symptom of the underlying
problem;
[21.3]    They would
not have known that there were cracks that were repaired previously
and concealed and painted;
[21.4]    They would
not know against whom to institute action, the insurer, the
appellants, the previous owners before
the appellants or any other
builder who may have worked on the property before.
[22]     To
lay credence to the above view, it is important to refer again to the
testimony of the first respondent
and understand his answers within
the context of the issues in this case. He was asked if at the time
that he took the photos he
was aware of the cause of the cracks and
he responded:
“
No,
Your Honour, absolutely not. Hence I took the effort that I did. I
did not know what was causing it and even in this photo report
I did
not even suggest why this was happening
….”
[23]     Then
he was asked the following questions:
Q    “…
what
caused you then to approach Absa Bank and not from the start approach
an engineer to give you a report?”
A    “
What
came to my mind, Your Honour, was that look this is bonded house by
Absa and therefore I need to inform them that these are the
problems
that I am encountering with this house
.”
Q    “
Okay
and what did you want to get out of this
?
”
A    “
It
was basically just for them to come and repair it
.”
Q    “
Why
did you not when you observed these cracks from that, at that time
issue summons against the first and second defendants
?
”
A    “…
in
terms of chronology of events, after this I approached Absa and then
Absa rejected my claim. And indicating that in terms of the
assessor
that it looks like it was previously patched. It is then that I went
to get a professional opinion from a professional engineer
.”
[24]     To
me the above answers clearly indicate that all along he did not
suspect any fraudulent misrepresentation
by the appellants which
would have made him acquire the required minimum facts for
prescription to start counting.
[25]     In
line with the chronology of events as alluded to above, the first
respondent only received Mr Kempff’s
report on 30 September 2014
that clearly outlined to him the nature of problems on the property.
To me, this is the time that prescription
started running.
[26]     The
submission by the appellants’ counsel that the first respondent
should have been aware that these
cracks were latent defects because
he is an engineer himself has no merit for various reasons. Firstly,
this reasoning is informed
firstly, by the fact that even though the
first respondent is a qualified engineer, he never practised as such.
This is where the
analogy by respondents’ counsel in the court a
quo finds relevance that “…the fact that I am a legally qualified
person does
not mean that I can successfully advise someone on labour
law.....the fact that the first plaintiff is a qualified civil
engineer
does not make him an expert on defects of this nature. And
he testified to that effect.”
[27]
Secondly, from the facts of this case, it took the expertise of 2
experienced practising civil engineers
to diagnose and discover that
there were latent defects on the respondents’ property. All that
the first respondent was observing
was mere structural cracks without
any knowledge or suspicion that they may be latent defects. To me, it
would be absurd to suggest
that the first respondent should have
known earlier than 24 June 2014 that these were latent defects for
the mere reason that he
is a qualified engineer more so it never
dawned to him to dig and look for underpinnings.
[28]
Perhaps it warrants emphasis to state that the test on prescription
for purposes of section 12(3) is
not when the plaintiff
should
have
acquired knowledge of the minimum facts. Instead, the
correct legal position as supported by case law above is
when did
the plaintiff (in this instance the respondents) acquire the minimum
facts required for him/her to institute action.  Consequently,
the argument by the appellants on the issue of prescription cannot be
sustained for lack of merit. Therefore, the appeal ought to
fail on
this ground alone. (underlining my emphasis).
The
alleged fraudulent misinterpretation
[29]
[29.1]    In
Knight
v Trollip
,
[19]
Selke J put the matter as follows:
“
I
think it resolves itself to this, that here the seller could be held
liable only in respect of defects of which he knew at the time
of the
making of the contract, being defects of which the purchaser did not
then know. In respect of those defects, the seller may
be held liable
where he has designedly concealed their existence from the purchaser,
or where he has craftily refrained from informing
the purchaser of
their existence. In such circumstances, his liability is contingent
on his having behaved in a way which amounts
to a fraud on the
purchaser, and it would thus seem to follow that, in order that the
purchaser may make him liable for such defects,
the purchaser must
show directly or by inference, that the seller actually knew.
”
[29.2]    In
Van
der Merwe v Meades
,
[20]
it was held that a seller will be deprived of the protection afforded
by a voetstoets clause where the purchaser can prove that the
seller
(1) was aware of a defect in the merx at the time of the making of
the contract and (2) dolo malo conceals its existence from
the
purchaser with the intention of defrauding the purchaser
.
[29.3]
In
Banda
and Another v Van Der Spuy and Another
,
[21]
Swain AJA (as he then was) aptly put the matter pertaining to the
subject of latent defects as follows:
“
It
is trite that a seller is liable for all latent defects which render
the res vendita unfit, or   partially unfit, for
the
purpose for which it was intended to be used…. A leaking roof is a
latent defect which renders the house unfit for habitation.
The
respondents were aware of one of the causes for the leaking roof,
namely inadequate roof design, which resulted in the sagging
of the
roof, which had not been permanently repaired and which they had
concealed….  Their fraudulent conduct in concealing
the
existence of the defective, leaking roof forfeits the protection of
the voetstoots clause in respect of this latent defect.
”
[30]
On this aspect of alleged fraudulent misrepresentation, counsel for
the appellants pursued their pleaded case
that there were no defects
on property and/or if there were any, they were not within their
knowledge and/or further, if there were
any patent defects they were
bare for the respondents to see when they viewed the property twice
prior to the purchase.
[31]
It is common cause that the appellants never informed the respondents
of the existence of any cracks
on the property. Astonishingly, it
seems from the record that during the trial, the second appellant
sought belatedly, to introduce
evidence of cracks through photos
(exhibit D) that were allegedly on the property when the respondents
viewed the property prior
to the sale. These photos depict cracks
that she alleged were the subject of repairs on the Pro-build
quotation. The court
a quo
dismissed these on the reasoning
that the second appellant made her case as the matter progressed. In
my view, the court
a quo
cannot be faulted for the above
finding because it is apparent from the record that the first
respondent was never confronted about
them during cross examination
and there was no plausible explanation for such crucial omission.
[32]
During the hearing of this appeal, counsel for the appellants was
invited to comment on the undisputed
testimony of the first
respondent, that when they viewed the property for the first time
there were renovations in progress on the
property and that the
second appellant told the estate agent, Willem in Afrikaans that she
had told him not to bring people until
they were done. She was caught
wanting on her response.
[33]
The respondents led evidence of 2 experts which was never
controverted by the appellants. Their evidence
is crucial if one has
regard to the probabilities in this case. The fact that there was
under-pinning on the foundation of the property
is an indication that
there was a previous problem of cracks as a result of the clay soil
on which the property was built. According
to Mr Kempff, this
under-pinning was not effective to prevent them from re-occurring.
From this evidence, it can easily be inferred
that one of the
previous owners (be it appellants or those before them) must have
constructed the under-pinning in an attempt to
prevent the
re-emergence of the cracks. This is where the conclusions by Mr
Kempff become relevant that it was unlikely that during
the 8 years
that the appellants’ stayed in that property no cracks ever
developed and they never painted the property.
[34]
Further, that there were previous cracks that were repaired is
another indication that one of the previous
owners had a problem of
cracks on the property. This in a way supports Mr Kempff’s opinion
that cracks would develop in that house
on a one or two or three year
period. I accept that indeed the appellants may not have not known
the soil type on which the house
is built, however, from the
objective facts presented during the trial, it would be highly
improbable that cracks never developed
during the 8 years of their
stay on the property.
On a balance of
probabilities, the respondents passed the required threshold on the
standard of proof that the second appellant’s
version was highly
improbable in the circumstances as the court
a
quo
correctly found. This leads to
one conclusion that they deliberately omitted to inform the
respondents about the existence of the
latent defects particularly
cracks, so as to induce them to purchase the property.
[35]
The first respondent described the property as neat and ready for
occupation and that no renovations
were needed. That is how the
property was advertized on Property 24 with a newly renovated
kitchen. He also testified that the paint
looked new and would not
have bought the property had he been informed about the defects.
CONCLUSION
[36]     For the
reasons outlined above, there is no reason to tamper with the court
a
quo’s
order that dismissed the appellants’ special plea of
prescription and the appeal on this ground ought to fail with costs.
Pertaining
to the merits of the matter, the court
a quo
correctly found in favour of the respondents that the appellants
deliberately omitted to inform them about the latent defects and
for
this reason, they cannot find refuge under the
voetstoets
clause. Therefore, the appeal on this ground should fail too, with
costs.
COSTS
[37]
Firstly, there is the aspect of the wasted costs occasioned by the
pre-mature enrolment of this matter
before this court on 10 May 2021
before the aspect of
quantum
could be finalised before the
court
a quo
. The appellants should be held liable for them.
Secondly, there is the issue of costs of 8 October 2021 when the
matter served before
the two (2) member’s bench. These should be
costs in the appeal. Lastly, the costs of this appeal should follow
the successful
party.
[38]
Before I pronounce the order, it would be remiss of me not to lament
on the period that the trial magistrate
took to furnish his reasons
in terms of
Rule
51(1).
[22]
The
said Rule provides that “
Upon
a request in writing by any party within 10 days after judgment and
before noting an appeal the judicial officer shall within
15 days
hand to the registrar or clerk of the court a judgment in writing
which shall become part of the record
…
.”
[39]     The
Honourable
Justice D H Lloyd
remarked as follows during the
Judicial Conference of Australia on 7 November 1998:
“
A judge’s
tardiness in completing his judicial task after a trial is over,
denies     justice to the   winning
party during the period of the delay.  It also undermines the
loser’s confidence in the correctness of the decision when it
is
eventually delivered.  Litigation causes quite enough stress, as
it is, for people to have to endure while a trial is going
on.
Compelling them to await judgment for an indefinitely extended period
after the trial is over will only serve to prolong
their anxiety, and
may well increase it. Conduct like this weakens public confidence in
the whole judicial process. Left unchecked
it would be ultimately
subversive of the rule of law.  Delays on this scale cannot and
will not be tolerated.  A situation
like this must never occur
again.”
[40]     It
is apparent from the record that reasons for judgment were furnished
by the magistrate almost 4 months
after the request.
[23]
I am not imputing any blame on him for the delay because this could
have been as a result of a systemic problem. That is why magistrates
who are heads of offices are enjoined to ensure that a Rule 51
register is properly kept and monitored to avoid delays like this
one.
[24]
Undoubtedly, there are noble reasons for these legislative prescripts
for example, to enable an aggrieved party to prosecute its
appeal and
assert its rights promptly.
ORDER
[41]     The
appeal is dismissed with costs.
_______________________
M.M. MATSHAYA  AJ
I concur
_______________________
N.M.  MBHELE  AJP
INTRODUCTORY
REMARKS
[42]     This
is a minority judgment.  I have had the advantage of reading the
majority judgment, but am
unfortunately not in agreement therewith
pertaining to the issue of prescription for the reasons that will
become clear in due course.
THE APPEAL HEARING OF 10 MAY
2021
[43]
Reference is made in paragraph 37 of the majority judgment to the
appeal hearing of 10 May 2021.
As I was involved that day, I
believe that it is necessary to give some background in order to
justify the order of wasted costs
to be made.  The matter came
before Acting Deputy Judge President Naidoo and me.  At that
stage the orders of the court
a quo
read as follows:
“
1.
That the Defendants’ special plea, in relation to prescription of
Plaintiffs’ claim,
is dismissed.
2.
That the Plaintiffs succeed on the merits for such damages as they
can prove.
3.
That the Defendants pay the costs, including Counsel’s fees.”
[44]     We
were of the view that the orders were not appealable insofar as there
was yet a pronouncement to be
made on the
quantum
of the
claim.  Therefore, the following orders were granted:
“
1.
The appeal is struck from the roll.
2.
Leave is granted to both
parties to enrol the matter for arguments and
consideration
of costs
, after final
determination of the quantum of the respondents’ claim in the
Magistrate Court and upon the following conditions:
2.1
If any of the parties
appeal the judgement of the Magistrate Court, the aforesaid enrolment
in respect of costs shall coincide with
the hearing of the appeal.
2.2
If no appeal is lodged against
the judgement of the Magistrate Court within the prescribed time
limit, either party shall be entitled
to enrol this matter for costs
to be determined, after giving 20 (twenty) days’ notice to the
other party.”
(emphasis added)
[45]
Since then the parties came to an agreement pertaining to the
quantum
of the claim and the court
a
quo
made the agreement
an order of court.  The authorities are clear.  A
magistrate’s order in favour of a plaintiff on the
issue of
liability only where the issues of merits and
quantum
have been separated is not appealable.
[25]
[46]
Although the respondents’ counsel decided to deal extensively in
his main heads of argument with the
issue of prescription in the
first 15 pages, he nevertheless made some submissions pertaining to
appealability of the order on pages
16 to 19 of the heads of argument
where after he proceeded with submissions on the merits in another 22
pages.  In hindsight
this was really unnecessary, but in my view
cannot have a bearing on the award to be made.
[47]     The
appellants should never have appealed the order of the court
a quo
and thereafter set the matter down for hearing of the appeal.
The aforesaid authorities are not only clear, but also
well-established
over decades.  Consequently, they should be
ordered to pay the wasted costs pertaining to the appeal hearing on
10 May 2021.
THE JUDGMENT OF THE COURT
A
QUO
[48]
Over and above what is stated in the majority judgment, I deem it
apposite to quote the following conclusion
arrived at by the court
a
quo
in this regard:
“
In June 2014, the Plaintiffs
had no knowledge that the cracks on the property
were
old and gradual, previously patched and caused by active clay soil
and this is the bases
(sic)
on which this claim has been instituted against the Defendants.”
[26]
FACTS NOT IN DISPUTE
[49]     I do
not intend to repeat all undisputed facts, either as mentioned in the
majority judgment or appearing
from the record, but need to emphasise
that except for some minor repairs undertaken by the appellants
before the final deed of sale
was concluded, their dwelling house and
garden were in a neat condition during the two inspections prior to
the sale.
RELEVANT
AUTHORITIES PERTAINING TO PRESCRIPTION
[50]
The majority judgment does
not to deal with the
following further judgments of the Supreme Court of Appeal and the
Constitutional Court, which I deem relevant
in the present
circumstances.  I shall give a brief exposition of the facts and
legal conclusions in respect of each:
50.1
Fluxmans Inc v
Levenson
[27]
-
In this judgment the attorney’s client entered into an oral
contingency fees agreement which provided for exorbitant fees.
The client’s version in court was that he had since the agreement
ascertained, having been so advised by his present legal
representative,
that this agreement was invalid as it did not comply
with the provisions of the Contingency Fees Act.
[28]
He complained that he was a layman and that he was only afterwards
informed of the judgments of the Constitutional Court.
Having
held that the agreement between the parties did not comply with the
peremptory requirements of s 3 of the aforesaid Act and
was therefore
invalid, the court held as follows:
“
The
question, therefore, is whether before February 2014 the respondent
had knowledge of the facts from which his claim arose. In
my view,
the respondent did have knowledge of such facts. Immediately after he
paid the fees to the appellant on 20 August 2008 the
respondent knew
all the facts even though he did not know the legal
conclusion flowing from those facts. The respondent knew
that
fees which he paid to the appellant on 20 August 2008 were calculated
on the basis of the oral contingency fees agreement which
he
concluded with the appellant (Perlman). On his own evidence, the
respondent then also knew all the other facts that he relied
upon in
his founding affidavit for the conclusion that the contingency fees
agreement was invalid. …”
The court continued as follows in
the next paragraph:
[29]
“
Knowledge
that the
relevant agreement did not comply with the provisions of the Act
is
not a fact
which the respondent needed to acquire to complete a cause of
action
and
was therefore not relevant to the running of prescription. This court
stated in
Gore
NO
para
17
that the period of
prescription
begins to run against the creditor when it has
minimum
facts
that are necessary to institute action
.
The running of
prescription
is not postponed until it becomes aware of the full extent of its
rights nor until it has evidence that would prove
a case
'comfortably'
.
The 'fact' on which the respondent relies for the contention that the
period of prescription began to run in February 2014, is
knowledge
about the legal status
of the agreement, which
is
irrelevant
to the commencement of prescription.  It may be that before
February 2014 the respondent did not appreciate the legal
consequences
which flowed from the facts, but his failure to do so
did not delay the date on which the prescription began to run. …
That
the contingency fees agreements such as the present one, which
do not comply with the Act, are invalid is a legal position
that
obtained since the decision of this court in
Price
Waterhouse Coopers Inc
and
is therefore not a fact which the respondent had to establish in
order
to
complete his cause of action. Section 12(3) of the Prescription Act
requires knowledge only of the material facts from which the
prescriptive period begins to run — it does not require knowledge
of the legal conclusion (that the known facts constitute invalidity)
(
Claasen
v Bester
2012
(2) SA 404 (SCA)
([2011]
ZASCA 197))
.”
(emphasis added)
50.2
Claasen v Bester
[30]
-
A layman and farmer
in financial difficulties whose farm was on the verge of being sold
by public action, entered into an agreement
with a relative who
offered to buy the farm on condition that he may buy back the farm in
future.  The specific clause in the
deed of sale was held to be
vague insofar as no price was determined at which the farm might be
bought back.  The Court of Appeal
held that, notwithstanding the
farmer’s belief that the contract and particularly the specific
provision was enforceable, this
was irrelevant as the knowledge of
legal conclusions is not required before prescription begins to run.
I quote from the judgment:
[31]
“
[15]
These cases clearly do not leave open the question posed and not
answered in
Van
Staden
.
They make it abundantly clear that knowledge of legal
conclusions is not required before prescription begins to run. There
is no reason to distinguish delictual claims from others. The
principles laid down have been applied in several cases in this
court,
including most recently
Yellow
Star Properties 1020 (Pty) Ltd v MEC, Department of Development
Planning and Local Government, Gauteng
2009
(3) SA 577
(SCA)
([2009]
3 All SA 475)
para 37 where Leach AJA said that if the applicant
'had not appreciated the legal consequences which flowed from the
facts'
its failure to do so did not delay the running of
prescription. See also
ATB
Chartered Accountants (SA) v Bonfiglio
[2011]
2 All SA 132
(SCA) paras 14 and 18.
[16]
It is thus clear that
prescription began to
run on 3 March 2004, when Bester knew that no provision as to the
price at which he could buy back the farm
from Claasen had been
included in the deed of sale.
That he
believed nonetheless that the provision was enforceable is not
relevant. And attempts to register the 'special conditions'
in the
deed of sale against the title deeds by the legal representatives of
both parties are also of no consequence.”
(emphasis
added)
50.3
Yellow Star Properties
1020 (Pty) Ltd v MEC, Department of Development Planning and Local
Government, Gauteng
[32]
-
Leach
AJA (as he then was) held that if the appellant “
had
not appreciated the legal consequences which flowed from the facts”
its failure to do so did not delay the running of prescription.
50.4
In
Mtokonya v Minister
of Police,
[33]
one of two judgments handed down in 2018 by the Constitutional Court,
the applicant submitted that a special plea of prescription
should
not be upheld by alleging that he did not know that the conduct of
the police in not bringing him before a court of law within
48 hours
following upon his arrest was wrongful and actionable.  The
Constitutional Court reiterated that s 12(3) of the Prescription
Act
refers to the facts from which the debt arises and does not require
knowledge of legal opinions or legal conclusions or the availability
in law of a remedy.  The Constitutional Court referred to
Claasen v Bester
,
Yellow Star Properties
v MEC
,
Truter
and Another v Deysel, the Gore
judgment and
Fluxmans
Inc v Levenson
with
approval in its detailed exposition of the legal position.
[34]
The Constitutional Court specifically held that the applicant’s
reliance on
Shange and
Macleod
was
misplaced.  Its unambiguous exposition of the law of
prescription and final conclusions need to be quoted in full:
[35]
“
[63]
Furthermore, to say that the meaning of the
phrase
'knowledge . . . of the
facts from which the debt arises'
includes
knowledge that the conduct of the debtor giving rise to the debt
is wrongful and actionable in law would render
our law of
prescription so ineffective that it may as well be abolished. I say
this because prescription would, for all intents and
purposes, not
run against people who have no legal training at all.
That includes
not only
people who are not formally educated but also those who are
professionals in non-legal professions
.
However, it would also not run against trained lawyers if the field
concerned happens to be a branch of law with which they are
not
familiar.
The percentage of people in the
South African population against whom prescription would not run when
they have claims to pursue in
the courts would be unacceptably high.
In this regard it needs to be emphasised that the meaning that we
are urged to say is included in s 12(3) is not that a creditor
must
have a suspicion (even a reasonable suspicion, at that) that the
conduct of the debtor giving rise to the debt is wrongful and
actionable but we are urged to say that a creditor must have
knowledge that such conduct is wrongful and actionable in law.
If
we were asked to say a creditor needs to have a reasonable suspicion
that the conduct is or may be wrongful and actionable
in law,
that would have required something less than knowledge that it is so
and would not exclude too significant a percentage of
society.
”
(emphasis added)
50.5
In
Loni v MEC for
Health, Eastern Cape
[36]
the Constitutional Court emphasised that the facts in this judgment
are entirely distinguishable from the facts in
Links
.
The Constitutional Court held that the applicant should have
suspected fault on the part of the hospital staff over time,
bearing
in mind that he was discharged for a second time from hospital during
July 2001, but at that stage was still experiencing
pain in his leg
and was limping.  Even though he was given his hospital file
then, he only consulted medical practitioners in
2008 where after
action was instituted.  I quote the following from the judgment:
“
[32]
The
objective assessment
,
which was appropriately applied by both courts, established that a
reasonable person in the position of the
applicant
would have realised that the
treatment and care which he had received were substandard
and were not in accordance with what he could have expected from
medical practitioners and staff acting carefully, reasonably
and
professionally …
[34]
When the principle in
Links
is
applied to the present facts, the applicant should have over time
suspected fault on the part of the hospital staff. There
were
sufficient indicators that the medical staff had failed to provide
him with proper care and treatment, as he still experienced
pain
and the wound was infected and oozing pus. With that experience, he
could not have thought or believed that he had received
adequate
medical treatment. Furthermore, since he had been given his medical
file, he could have sought advice at that stage
. There was no
basis for him to wait more than seven years to do so. His explanation
that he could not take action as he did not have
access to
independent medical practitioners who could explain to him why he was
limping or why he continued to experience pain in
his leg, does not
help him either. The applicant had all the necessary facts, being his
personal knowledge of his maltreatment and
a full record of his
treatment in his hospital file, which gave rise to his claim. This
knowledge was sufficient for him to act.
This is the same
information that caused him to ultimately seek further advice in
2011.
[35]
It is clear that long before the applicant's discharge from
hospital in 2001 and certainly thereafter, the applicant had
knowledge
of the facts upon which his claim was based. He had
knowledge of his treatment and the quality (or lack thereof)
from his first
day in hospital and had suffered pain on a continuous
basis subsequent thereto. The fact that he was not aware that he was
disabled
or had developed osteitis is not the relevant
consideration.
”
[51]
Having dealt with authorities not relied upon in the majority
judgment, I shall now briefly deal with
the judgments relied upon in
the majority judgment.
51.1
I firstly deal with
Truter
and Another v Deysel.
[37]
A
special plea of prescription was upheld in the Supreme Court of
Appeal.  The High Court dismissed the special plea and held
that
a surgical procedure was performed on the plaintiff, Deysel, by an
ophthalmologist during 1993, but he only received so-called
favourable expert medical opinion about negligence in 2000 and
therefore, prescription commenced running only at that stage.
The Supreme Court of Appeal clearly stated that in a delictual claim
the requirements of fault and unlawfulness do not constitute
factual
ingredients of the cause of action, but are legal conclusions to be
drawn from the facts.  I quote:
“
[17]
In a delictual claim, the requirements of fault and unlawfulness do
not constitute
factual
ingredients
of the cause of action, but are
legal
conclusions
to be drawn from the facts:
'A
cause of action means the combination of facts that are
material for the plaintiff to prove in order to succeed with
his
action. Such facts must enable a court to arrive at certain legal
conclusions regarding unlawfulness and fault, the constituent
elements of a delictual cause of action being a combination of
factual and legal conclusions, namely a causative act, harm,
unlawfulness
and culpability or fault.'
[19]
'Cause of action' for the purposes of prescription thus means
‘
.
. . every fact which it would be necessary for the plaintiff to
prove, if traversed, in order to support his right to the judgment
of
the Court. It does not comprise every piece of evidence which is
necessary to prove each fact, but every fact which is necessary
to
be proved.'
[20]
As contended by counsel for Drs Truter and Venter,
an
expert opinion that a conclusion of negligence can be drawn from a
particular set of facts is not itself a fact, but
rather evidence.
As
indicated above, the presence or absence of negligence is not a fact;
it is a conclusion of law to be drawn by the court in all
the
circumstances of the specific case.
Section
12(3) of the Act requires knowledge only of the material facts from
which the debt arises for the prescriptive period to begin
running -
it does not require knowledge of the relevant legal conclusions (ie
that the known facts constitute negligence) or of the
existence of an
expert opinion which supports such conclusions.
”
[38]
(emphasis added)
51.2
Minister of Finance and
Others v Gore NO
[39]
-
The Supreme Court of
Appeal pointed out that “
the
statutory prescription periods are meant to protect defendants from
undue delay by litigants who are laggard in enforcing their
rights.”
[40]
In that case the court held the following about the knowledge of Mr
Rabie who testified on behalf of the unsuccessful tenderer
that
formed an opinion that fraud had been committed:
“
[18]
Rabie certainly did cry fraud soon after 3D-ID lost the tender. But
what did he know when he did so? The defendants' argument
seems
to us to mistake the nature of 'knowledge' that is required to
trigger the running of prescriptive time. Mere opinion or supposition
is not enough: there must be justified, true belief. Belief, on its
own, is insufficient. Belief that happens to be true (as Rabie
had)
is also insufficient. For there to be knowledge, the belief must be
justified.
[19]
It is well established in our law that:
(a)
Knowledge is not confined to the mental state of
awareness of facts that is produced by personally witnessing or
participating in
events, or by being the direct recipient of
first-hand evidence about them.
(b)
It extends to a conviction or belief that is engendered
by or inferred from attendant circumstances.
(c)
On the other hand, mere suspicion not amounting to
conviction or belief justifiably inferred from attendant
circumstances does not
amount to knowledge.  It follows that
belief that is without apparent warrant is not knowledge; nor is
assertion and unjustified
suspicion, however passionately harboured;
still less, is vehemently controverted allegation or subjective
conviction.
[20]
What Rabie knew, in essence, was that only 3D-ID's technology could
meet the demanding tender specifications.
When 3D-ID did not win the
award he suspected that something must have been amiss in the tender
process. His conviction was strengthened
by two calls he received: …
From this, he inferred, with passionate certainty, that fraud must
have taken place; but he lacked
a firm evidentiary basis for his
belief.
”
[41]
The
court concluded as follows pertaining to the unsuccessful special
plea of prescription:
[42]
“
[25]
Rabie acquired the minimum knowledge needed to institute action only
at the end of 1998, when OSEO finally
released the evidence that
showed that the Nisec tender had been prepared on a CPA
computer.  This was 'the smoking gun'
that senior counsel,
in February 1997, advised him to obtain before he contemplated
further litigation based on fraud. With this
in hand, the plaintiff
promptly issued summons. It was not time-barred when it did.”
51.3
Macleod v Kweyiya
[43]
-
The facts were
briefly as follows.  The respondent issued summons against the
appellant for damages relating to injuries sustained
when she was
approximately 4 years old.  The appellant a practising attorney,
was instructed by the respondent’s mother to
institute a damages
claim against the statutory insurers of two drivers.  When the
claim was settled the respondent was approximately
13 years old.
When she was almost 25 years old and 11 years after the appellant had
accounted to her mother, the respondent
caused summons to be issued
against the appellant.  A special plea of prescription was
filed.  The Supreme Court of Appeal
identified two inter-related
issues, firstly whether the respondent could reasonably have known
the facts from which her debt against
the appellant arose before 19
April 2006 and secondly, whether an adverse inference should be drawn
from her failure to give evidence
about her state of mind,
circumstances or conduct during that period.  The issue was
therefore whether by the exercise of reasonable
care the respondent
could have acquired knowledge of the identity of the debtor and the
facts from which the debt arose earlier than
April 2006.  I
quote from the judgment:
[44]
“
[14]
Similarly, in this matter the respondent visited the offices of the
appellant merely because she had a dispute
with her mother pertaining
to the occupancy of the house which had been bought with some of the
money that had been received as the
settlement amount. The visit did
not concern the details of the settlement amount. There is no
suggestion that at that stage she
was concerned about the quantum at
all. The version of the appellant confirms that there was no
discussion pertaining to the quantum
of the claim, the cost of the
house and the amount given to her mother. There is no basis to
conclude that she should have appreciated
that there was something
wrong with the quantum of the claim nor with any other aspect of the
claim at that stage. More importantly,
there is no basis to conclude
that she must have realised that there was an under-recovery nor that
there was a possible claim for
negligence against the appellant. She
probably believed, innocently, that the settlement amount was the
best under the circumstances.
It was not unreasonable of her to trust
her mother and the appellant's judgment. In all probability she
thought that they had acted
in her best interests.”
The court reiterated in
Macleod
v Kweyiya
that there
is an expectation to act reasonably, with the diligence of a
reasonable person and that a creditor cannot simply sit back
and by
supine inaction arbitrarily and at will postpone the commencement of
prescription.  It eventually found, based on the
facts of the
case, that the claim had not become prescribed.
[45]
51.4
In
Links v Member of
Executive Council, Department of Health, Northern Caper
[46]
the facts were briefly
as follows.  By 5 August 2005 and during hospitalisation the
applicant became aware that he had lost his
thumb.  The issue
was whether or not the applicant was aware of the cause of his
problem on/or before 5 August 2006.  In
this case the applicant
applied for condonation insofar as the required letter of demand was
filed out of time; consequently, the
facts were placed before the
court by way of affidavit.  The court criticised the respondent
in the following words in:
[47]
“
[40]
Instead of dealing with the applicant's evidence that on or before 5
August 2006 the applicant was not
aware of the reason for or cause of
his problem, the respondent deals with what happened at the end of
August 2006 when the applicant
was discharged from hospital. …
[41]
… Whatever the applicant may have known after 5 August 2006 is
irrelevant to the respondent's
special plea on prescription. This is
because the special plea can only be upheld on the basis of what the
applicant knew on or before
5 August 2006. …
[42]
… However, in cases of this type, involving professional
negligence,
the party relying on prescription must at least show
that the plaintiff was in possession of sufficient facts to cause
them on reasonable
grounds to think that the injuries were due
to the fault of the medical staff.  Until there are reasonable
grounds for suspecting
fault
so as to cause the plaintiff to seek
further advice,
the claimant cannot be said to have knowledge of
the facts
from which the debt arises.
[45]
… Until the applicant had knowledge of facts that would have led
him to think that
possibly
there had been negligence and that this had caused his disability, he
lacked knowledge of the necessary facts contemplated in s 12(3).
[50]
… He
(the applicant)
did not know or have
reasonable grounds to suspect that his negligent treatment at the
hands of the respondent's personnel had led
to the compartment
syndrome. Nor did he know that this in turn caused the amputation of
his thumb and the loss of function of his
left hand. In my view the
High Court and the full court erred in not approaching the matter in
this way. …”
I shall during the evaluation of
the evidence specifically deal with the dicta of the Constitution
Court quoted in paragraphs 42,
45 and 50
supra
.
EVALUATION
OF THE EVIDENCE
[52]     A
purchaser intending to claim damages based on latent defects in the
res vendita
has two options.  He may claim damages based on breach of
contract in terms of the
actio
empti
or file a
delictual claim based on fraud.  The differences in the two
actions are evident from Amler’s Precedents of Pleadings
by
Harms.
[48]
The requirements to be proven in both instances are clearly set out
and do not have to be repeated.  In order to
succeed with the
actio empti
,
a purchaser relying on fraud must show that the seller knowingly
concealed defects or knowingly represented their absence.
If a
voetstoots clause is contained in the deed of sale the purchaser must
prove that the seller was aware of the latent defect when
the
contract was concluded, that the defect was deliberately concealed,
that the seller bore a duty to disclose same and failed to
do so.
In the case of fraud in contract which led to the conclusion of the
contract, the purchaser as the representee may elect
to keep the
contract alive and claim damages.    It is accepted
that the respondents rely on delict insofar as they
rely on the
fraudulent non-disclosure of defects and/or the fraudulent
concealment thereof by the appellants which induced them to
purchase
the property which they would not have done if they were aware of the
defects.
[53]     The
majority judgment takes the view in paragraph 21.4 that the
respondents could not have been aware
of the identity of the
debtor(s).  According to my colleagues they would not know
against whom to institute action, to wit either
the insurer, the
appellants, the previous owners or any builder who may have worked on
the property.  In my view, it could never
be in doubt that the
appellants as the sellers of the property would be the only people
liable in either contract or delict.
In any event nothing in
the evidence of the two experts pointed in any other possible
direction.  The averments in the particulars
of claim lend
support for the logical conclusion that nobody else could be held
responsible.
[54]     In
paragraphs 20 and 21 of the majority judgment the point is taken that
prescription could not start
to run before Mr Kempff came on the
scene.  I do not agree that insofar as the respondents did not
know during June 2014 what
the cause or causes of the defects were,
prescription did not start to run.  I shall explain herein that
insofar as the house
was “falling apart” to use the first
respondent’s words due to
inter alia
structural cracks as
testified to by him, he had knowledge of the minimum facts to
institute action by the time he put in his claim
with Absa.
Whether or not the clay/soil conditions and/or improper foundations
and/or insufficient concrete and/or any other
reason could have been
advanced for the defects that made the house uninhabitable is a
matter of evidence by an expert and this was
not required in order to
issue summons.  My further reasoning will appear in the next
paragraphs.
[55]
Before evaluating the evidence it is necessary to consider what is
meant by a latent defect.  Corbett
JA stated the following in a
unanimous judgment of the Appeal Court in
Holmdene
Brickworks (Pty) Ltd v Roberts Construction Co Ltd
:
[49]
“
Did the bricks
contain a latent defect? Broadly speaking in this context a defect
may be described as an
abnormal
quality or attribute which destroys or substantially impairs the
utility or effectiveness of the
res
vendita
,
for the purpose for which it has been sold or for which it is
commonly used
(see
Dibley
v Furter
,
1951
(4) SA 73
(C)
at
pp. 80 - 2, and the authorities there cited; also
Knight
v Trollip
,
1948
(3) SA 1009
(D)
at
pp. 1012 - 13;
Curtaincrafts
(Pty.) Ltd
.
v
Wilson
,
1969
(4) SA 221
(E)
at
p. 222; De Wet and Yeats.
Kontraktereg
,
3rd ed., p. 236; Mackeurtan,
Sale
of Goods
,
4
th
ed., p. 246; Wessels,
Contract
,
2nd ed., para. 4677). Such a defect is latent when it is one which is
not visible or discoverable upon an inspection of the
res
vendita
.
I refrain, however, from entering into the question as to whether to
be latent the defect must be not "easily visible "
(
see
Blaine v Moller & Co
.,
(1889) 10 N.L.R. 96
at p. 100) or whether the test is rather that it
should not be reasonably discoverable or discernible by the ordinary
purchaser (cf.
Schwarzer
v John Roderick's Motors (Pty.) Ltd
.,
1940 OPD 170
at p. 180;
Lakier
v Hager
,
1958
(4) SA 180
(T)
). Nor is it necessary to consider what effect, if
any, is produced by the fact that the purchaser is himself an expert
in regard
to the
res
vendita
or employs
an expert to examine the goods (see in this connection
Knight
v Hemming
,
1959
(1) SA 288 (FC)
).”
(emphasis
added)
[56]     In
Glaston House (Pty) Ltd
v Inag (Pty) Ltd
[50]
the Appeal Court took a broader approach and held that the existence
of a cornice and pediment including the sculpture which had
been
declared a national monument and which were embedded in a dilapidated
building which precluded the redevelopment for which the
property had
been bought constituted a latent defect, the reason being that the
sculpture, although valuable in itself, hindered
the use for which
the property was bought.
[57]     If
one cannot even open or close one’s main bedroom door because of
jamming and the house is falling
apart due to structural cracks, such
house can never be regarded as fit for ordinary use as described in
the authorities quoted above.
It is also appropriate to refer
to the following
dictum
by Swain AJA (as he then was) in
Banda
and Another v Van der Spuy and Another:
[51]
“
It is trite that
a seller is liable for all latent defects which render the
res
vendita
unfit, or partially unfit, for the
purpose for which it was intended to be used….
A
leaking roof is a latent defect which renders the house unfit for
habitation.”
[58]
While appreciating that the appellants bore the full onus to prove
their plea of prescription, including
the date on which the
respondents obtained actual or constructive knowledge of the debt as
required in s 12(3) of the Prescription
Act, I shall now deal with
specific passages in the evidence of the first respondent in support
of my view that the respondents’
claim had become prescribed.
58.1
The first respondent, Mr Mokheti, was over the moon with the
condition of the house during his
inspections of the property prior
to the conclusion of the deed of sale.  According to him “
the
kitchen was new, was revamped”
and they “
literally
had to move in and not do a single thing”
and “
I have
not done a single thing in that house since I moved in.  No
renovations whatsoever.  That is how neat the property
was.
That is why we purchased it.”
[52]
58.2
He continued:  “
I
think it was newly painted, Your Honour I think it was newly painted
because it was exceptionally neat”.
[53]
58.3
During the second inspection “
the
property was pretty much the same”
and at that stage the minor repairs undertaken by the appellants had
been finalised.
[54]
58.4
No water problems, no cracks and no structural problems were observed
and/or pointed out as is
evident from the examination in chief.
Although they have viewed a number of properties, this one was
different in “
that
we could move in literally do nothing and just begin to live and
enjoy the house.”
[55]
58.5
Although first respondent testified that about a year after moving
in, they started experiencing
problems, this is not correct insofar
as they moved in after registration of the transfer which took place
on 22 July 2013, whilst
a claim was lodged with Absa on 24 June 2014
at which stage the problems that had gradually surfaced, were seen as
major.
[56]
58.6
The first problem experienced was the main bedroom door that started
jamming; thereafter the dining
room door did the same.  Then
fine cracks developed above these doors.  “
The
cracks grew bigger and bigger and bigger.”
[57]
58.7
When Absa was approached the first respondent indicated to them “
that
the property that they bonded is falling apart and I was submitting
my claim.”
[58]
He may have believed subjectively that there was insurance against
these kinds of occurrences such as the house falling apart,
[59]
but he might well have decided to take the path of least resistance.
We do not know what he claimed at that stage as the claim
was lodged
telephonically.  There can be no doubt that on the first
respondent’s version he, “
a
qualified engineered believed that the house was falling apart”
,
these being his own words.  Already then it must have been clear
that the house was not fit for the purpose they had bought
it,
bearing in mind the authorities quoted above.  Too much cannot
be made of the claim with Absa as an objective assessment
must be
applied and the first respondent’s subjective belief is
irrelevant.  A reasonable person in the position of the first
respondent would have realised that the structural defects must have
been concealed before conclusion of the deed of sale.
58.8
Only after receipt off the rejection letter of Absa Insurance on 12
August 2014 the first respondent
approached a structural engineer, Mr
Cas Kempff
[60]
who inspected the property and whose report and
viva
voce
evidence were
correctly accepted.
58.9
The first respondent personally took photographs of the defects.
He initially said that the
photographs “
were
taken just before, I think just before I approached Absa and Cas
Kempff the engineer.”
[61]
The photographs appear in the record, and although black and white,
the inscriptions thereto prepared by the first respondent
are quite
revealing.
[62]
58.10    Numerous
references to structural cracks appear in these inscriptions.
The cracks are also pointed out
to be either horizontal, or vertical,
or even diagonal.  Cracks were detected inside and outside the
house.  The one structural
crack in the main bedroom went
“
through
the 220 wall from the inside to the outside of the house.”
[63]
58.11    The
reason for taking the photos was mentioned to be the following:
“
Basically just to
make a case, Your Honour in terms of the
structure
falling apart
.”
[64]
(emphasis added)
58.12    With
reference to a diagram of the house forming part of the photo bundle,
the first respondent indicated
that the cracks were “
literally
everywhere”
and
“
developing
every day.”
[65]
58.13    The first
respondent dealt in his evidence with several other structural cracks
and other defects, but it
is not necessary to deal with all these,
bearing in mind the first respondent testified that he became aware
of clay conditions and
the underpinning of the foundation of the
house on the eastern and western sides after he had received the
letter of rejection from
Absa Insurance and during the time that Mr
Kempff the engineer came on the scene.
[66]
58.14    The first
respondent’s knowledge of underpinning became clear during his
evidence in chief.
[67]
On his version he only became aware of “
patchwork”
when Absa mentioned it and upon the inspection and report of Mr
Kempff.
[68]
58.15    The first
respondent is a Regional General Manager of the Independent
Development Trust who has a Bachelor
of Science Degree in Civil
Engineering and a National Diploma in Civil Engineering as well as a
Master’s Degree in Business Administration.
He is acquainted
with foundations as well as different types of soil.
[69]
58.16    In
cross-examination the first respondent testified about the gradual
development of cracks
[70]
and the dates when the photos were taken.
[71]
58.17    It is
accepted that there was uncertainty as to the time period within
which photos were taken, but the first
respondent eventually said the
following:
“
Mr Sander:
Okay, now you are telling this Court that you cannot really recall in
respect of Absa if the photos were taken before
or after that?
Mr Mokheti:
I
am sure that it is
before
that, Your Honour
.”
This was repeated later on in the
following words:
“
Your Honour, they
were all taken before the structural engineer and I think before the
Absa, but I am saying if the Court really needs
a date Your Honour,
that can be determined when did I take the photos.”
[72]
(emphasis added)
58.18    In
respect of diagonal structural cracks in the main bedroom the first
respondent testified as follows:
“
Diagonal means it
is about 45 degree, more or less.  It is not vertical.  It
is not horizontal.  So it is at an angle.
And
I
called it structural because it was visible from the outside and from
the inside
,
as well as from the inside.”
[73]
(emphasis added)
58.19
Pertaining to the first respondent’s experience or knowledge of
structural cracks he said the following:
“
Mr Sander:
Now you also make reference to a diagonal structural crack as you now
said, that term diagonal structural
crack is that also something you
drew from your experience and your academic qualifications what a
structural crack would constitute?
Mr Mokhethi:
What, not the word diagonal, Your Honour, but the word structural,
yes.”
[74]
58.20    No doubt
the respondent was fully aware of the differences between a plaster
and a structural crack when he
said the following:
[75]
“
Mr Mokhethi:
But it goes through the wall it goes through the structure.  And
I think that is where the word comes from.
That is why they
will say it is a structural crack, because the
structure
is cracking
and not the plaster is cracking.”
58.21    The first
respondent knew before he lodged his claim with Absa that he
encountered structural cracks.
[76]
58.22    The final
nail in the coffin is the following admission:
“
Mr Sander:
I will proceed with the questions just now.  Based on your
evidence today and that is what it is getting at
is you were aware
that there were certain structural cracks or defects in that sense
prior to submitting your claim to Absa
?
Mr Mokhethi:
Yes, Your Honour.”
The first respondent went
further:
“
Mr Mokhethi:
…that is why I am making a claim and these were no hairline cracks.
…  So these were serious cracks that
is why I reported the
matter, Your Honour. …
Mr Sander:  At
which stage
(24 June 2014)
you were well aware of
the structural cracks and defects?
Mr Mokhethi:
Yes, I was aware of the cracks in my house, Your Honour.”
[77]
and:
“
Mr Mokhethi:
Yes, the cracks start appearing and then I would see that it is
growing bigger and therefore they are becoming
structural so they are
growing bigger and therefore I reported it.”
[78]
Later on the first respondent
testified as follows:
“
Mr Mokhethi:
Your Honour, when I took these pictures and when I submitted it then
that is what my notes says that the cracks
were big enough to go
through.
Then
those were deemed structural cracks.  And that is when I
submitted to Absa.
”
[79]
(emphasis added)
Later on we find the following
question and answer:
“
Mr Sander:
So maybe a month or two before June you realised there was structural
cracks and then you proceeded to lodge your
claim somewhat later?
Mr Mokhethi:
That is correct, Your Honour.”
[80]
The first respondent confirmed
that he was not aware of the cause of the cracks.
[81]
He also confirmed during re-examination that he was not able with his
expertise to establish the cause of the cracks when he
observed them
and took photographs.
[82]
58.23    Although
he at a stage mentioned the cracking of houses in the Klerksdorp
area, he made it clear in his re-examination
that he did not want to
create the impression that there was anything like that in the
Bloemfontein area.
[83]
[59]     I do
not agree with the majority that in order to prevent prescription
from running, the respondents
had to be aware of the cause of the
structural cracks.  In my view the first respondent was in
possession of sufficient facts
to cause him on reasonable grounds to
think that there were latent defects in the house which were covered
up by the sellers, the
appellants, bearing in mind that the house was
neat and newly painted whilst cracks started to open up soon after
occupation.
In the words of the Constitutional Court in
Links,
at best for the first respondent he had knowledge of facts that would
have led him to think that possibly the defects existed and
were
latent and that these were fraudulently concealed by the appellants.
In this regard it is apposite to again refer to the
dictum
of
the Supreme Court of Appeal in
Macleod v Kweyiya
referred to
above and quoted fully in paragraph 16.3 of the majority judgment.
At best for the first respondent it was expected
of him to act
reasonably and with the diligence of a reasonable person.  He
could not wait for expert evidence in order to prove
his case
comfortably as mentioned in
Macleod v Kweyiya
.  I repeat,
what was required was merely knowledge of the minimum facts necessary
to institute action.
[60]
‘
Cause of action
’
for the purposes of prescription means “…
every
fact which it would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment of
the
Court.  It does not comprise every piece of evidence which is
necessary to prove each fact, but every fact which is necessary
to be
proved.”
[84]
Again as mentioned in the authorities quoted, s 12(3) of the
Prescription Act requires knowledge only of the material facts
from
which the debt arises for the prescriptive period to begin running;
it does not require knowledge of the relevant legal conclusion
(
ie
that the known facts constitute negligence) or in this case, fraud in
the form of fraudulent concealment of latent defects or of
the
existence of an expert opinion which supports such conclusions.
It is also important to remember that a latent defect is
“
an
abnormal quality or attribute which destroys or substantially impairs
the utility or effectiveness of the
res
vendita
for the purpose for which it has been sold off or which it is
commonly used.”
[85]
The structural cracks and doors in the house that started to jam are
defects that substantially impaired the effectiveness
or common use
of the house.
[61]
There could never have been any doubt about the identity of the
debtors.  The respondents bought
the house from the appellants
which was in a neat, if not perfect, condition and newly painted at
the time.  Soon after occupation
doors started jamming and
structural cracks appeared.  The only people possibly
responsible in contract or delict could be the
appellants.
[86]
In June 2014 the respondents and the first respondent in particular
had knowledge of the minimum facts from which the debt
arose.
Even if it could be said that he had to establish the cause of the
structural cracks and jamming of the doors, he could
have acquired
such knowledge by exercising reasonable care and obtaining the advice
of an expert at the time instead of waiting for
a response from Absa
which arrived on 12 August 2014 only.
[62]     I am
of the view that the reasonable purchaser would have realised that,
insofar as the house was neat
and recently painted, the serious
cracks that started to appear within months must have been patched in
the process of painting and
that these defects had been fraudulently
concealed from prospective purchasers.  The law of prescription
would be so totally
ineffective that it may as well be abolished to
use the words of the Constitutional Court in
Mtokonya supra
if
prescription is not held to have started running before or on 24 June
2014 at the latest.
[63]     In
the final analysis, and at best for the respondents, they could at
least by 24 June 2014 in the exercise
of reasonable care acquire
knowledge of the facts from which the debt had arisen and also that
the debtors were none other than the
appellants.  In
Links
supra
[87]
the Constitutional
Court stated that it had to be shown that the plaintiff was in
possession of sufficient facts to cause him on reasonable
grounds to
think that the injuries were due to the fault of the medical staff.
It went on to say that until there were reasonable
grounds for
suspecting fault the plaintiff could not be said to have knowledge of
the facts from which the debt had arisen.
If the
dictum
of the Constitutional Court is applied
in
casu
the first respondent had reasonable grounds to suspect fraudulent
concealment or that possibly there had been such fraudulent
concealment
and that the appellants acted intentionally and
unlawfully in concealing the defects.
[64]     I
therefore conclude that the respondents’ claim had become
prescribed and that I would have upheld
the plea of prescription with
costs.
[65]     In
the light of my conclusion and bearing in mind that this a minority
judgment, I find no reason to
deal with the merits of the claim based
on fraudulent misrepresentation.
J.P. DAFFUE J
On
behalf of the Appellants:
Adv J FERREIRA
Instructed
by:
Stander and Associates
BLOEMFONTEIN
On
behalf of the Respondents:     Adv JJ Buys
Instructed
by:
Willie J Botha Attorneys
BLOEMFONTEIN
[1]
See conclusions, page 1 of the report, page 65 of the bundle.
[2]
2006
(4) SA 168 (SCA).
[3]
[
2011]
ZASCA 76.
[4]
1980
(2) SA 814 (A).
[5]
Volume 6:
judgment,
paras 72 -79 at pp 866 – 868.
[6]
Volume 6: judgment,
paras
106 - 108 at pp 876 -877.
[7]
Volume 6, page 878-886.
[8]
Paragraph
6 of the heads of argument.
[9]
Schmidt
& Rademeyer, Law of Evidence, Lexisnexis at para 3 3. See also R
v Dhlumayo
1948 (2). SA 677
(A) para 3 and 4 and the exposition by
Ponnan JA in S v Monyane and Others
2008 (1). SACR 543
(SCA) at para
15.
[10]
Louwrens
v
Oldwage
2006
(
2
)
SA
161
(SCA) at para 14.
[11]
Santam
Bpk v Biddulph
2004 (5) SA 586
(SCA)
para
5.
[12]
Volume 1, p 63.
[13]
No. 68 of 1969.
[14]
Supra, para 16.
[15]
2007
(1) SA 111
(SCA) para 17.
[16]
2013
(6) SA 1
(SCA) para 09.
[17]
2016 (4) SA 414
, paras 42 and 45.
[18]
See Gericke v Sack
1978 (1) SA 821
(A) 827D-E.
[19]
1948 (3) SA 1009
(D), at 1013.
[20]
1991
(2) SA 1 (A).
[21]
2013 (4) SA 77
(SCA) para24.
[22]
Rules of the Magistrate’s Court.
[23]
See page 844-5 of the bundle.
[24]
See paras 24.1(i) & (ii) read with paras 24.2(i) & (ii) of
the Judicial Manual for the lower courts.
[25]
See s
83(b) of the Magistrates’ Courts Act, 32 of 1984; Zweni v Minister
of Law and Order
1993 (1) SA 523
(A) at 532 J – 533 B; Steenkamp v
South African Broadcasting Corporation
2002 (1) SA 625
(SCA) paras
13, 14 – 16 &
Jordaan
v Bloemfontein Transitional Local Authority and Another
2004
(3) SA 371
(SCA) paras 15 & 16
[26]
Volume 6: judgment, para
78
at p 868
[27]
2017
(2) SA 520
(SCA)
[28]
Ibid
para
35 and Act 66 of 1997;
Ibid
paras 35 & 41
[29]
Ibid
para
42
[30]
2012
(2) SA 404 (SCA)
[31]
Ibid
paras
15 & 16
[32]
2009
(3) SA 577
(SCA) para 37
[33]
2018
(5) SA 22 (CC)
[34]
Ibid
at
paras 37 - 51
[35]
Ibid
at
para 63
[36]
2018
(3) SA 335 (CC)
[37]
2006 (4) SA 168 (SCA)
[38]
Ibid
paras
17, 19 & 20 to be read with paras 24 and 26
[39]
2007
(1) SA 111 (SCA)
[40]
Ibid
para
16
[41]
Ibid
paras
18, 19 & 20
[42]
Ibid
para
25
[43]
2013
(6) SA 1
(SCA)
[44]
Ibid
para
14
[45]
Ibid
para 9
[46]
2016
(4) SA 414
[47]
Ibid
paras
40 – 42, 45 & 50
[48]
9
th
ed 203 and further and 329 and further
[49]
1977 (3) SA 670
(A) at 683 H – 684 C
[50]
1977 (2) SA 846
(A); see also
Odendaal
v Ferraris
2009 (4)
SA 313
(SCA) paras 25 & 26
[51]
2013
(4) SA 77
(SCA) para 24
[52]
Vol 3
p 318 / 9 - 16
[53]
p 324
/ 17 & 18
[54]
pp 331
/ 17 – 22 & 332 / 11
[55]
p 334
/ 1 - 3
[56]
pp 336
/ 2 – 8, 338 / 23 – 25 & 339 / 8 – 13
[57]
p 336
/ 10 - 19
[58]
p 336
/ 23 - 25
[59]
p 337
/ 4 - 8
[60]
p
344
& 345
[61]
p
348
/ 4 - 5
[62]
Vol 1
p 54 – 61
[63]
pp
354
/ 20 to 355 / 9 & 356 / 5 - 8
[64]
p
353/
1 - 2
[65]
p
353
/ 5 – 10
[66]
See
inter
alia
pp 381 / 12 – 20 & 383 - 384
[67]
p 383
/ 3 - 17
[68]
p
392
[69]
p
419
/ 5 – 421
[70]
pp
454
/ 1 – 16 & 458 / 17 – 19
[71]
pp
461
/ 4 – 8 & 18 – 23; & 462 / 1 - 25
[72]
p
465
/ 16 – 19. See also p 466 / 1 - 7
[73]
p 469
/ 10 - 14
[74]
p
471
/ 8 – 16. See also p 473 / 1 – 12 & pp 477 / 20 – 478 / 11
[75]
p 478
/ 8 -11
[76]
p 479
/ 1 – 17, p 480 / 14 – 15 & p 481 / 1 - 21
[77]
pp 488 / 11 -15 &
489
/ 3 - 17
[78]
p 490
/ 11 - 14
[79]
p
495
/ 24 – p 596 / 3
[80]
p
497
/ 5 - 8
[81]
p
517
/ 17 - 20
[82]
p 524
/ 10 - 16
[83]
Vol 4
p 536 / 6 - 25
[84]
Truter and Another v
Deysel supra
[85]
Holmdene Brickworks
supra
[86]
Banda and Another v
Van der Spuy and Another supra
;
Amler’s Precedents
of Pleadings supra
[87]
Links
supra
,
paras 42, 45 & 50 in particular