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[2011] ZASCA 197
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Claasen v Bester (872/10) [2011] ZASCA 197; 2012 (2) SA 404 (SCA) (23 November 2011)
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case no
:
872/10
In the
matter between:
EVERT
BAKKES CLAASEN
…....................................................................
Appellant
and
MICHIEL DANIëL BESTER
…..................................................................
Respondent
Neutral citation:
Claasen v Bester
(872/10)
[2011] 197 ZASCA (23November 2011)
Coram:
Harms DP, Lewis, Shongwe, Majiedt JJA and Plasket AJA
Heard:
14 November 2011
Delivered 23 November 2011
Summary:
Extinctive prescription – knowledge of legal
conclusion not a fact for purpose of
s 12(3)
of the
Prescription Act
68 of 1969
.
_____________________________________________________________
ORDER
______________________________________________________________
On appeal from:
Free
State High Court, Bloemfontein (Van Zyl J sitting as court of first
instance):
The appeal is upheld with the costs of two counsel. The order of the
high court is replaced with:
‘
The defendant’s special plea of
prescription is upheld, and the plaintiff’s claim dismissed,
with costs.’
______________________________________________________________
JUDGMENT
______________________________________________________________
LEWIS JA (HARMS AP, SHONGWE and MAJIEDT JJA and PLASKET AJA
concurring )
[1] The parties in this matter are farmers in the Heilbron district
of the Free State. They were also once friends. When the respondent,
Mr M D Bester, ran into financial difficulty, the appellant, Mr E B
Claasen, a younger man, offered to prevent foreclosure of Bester’s
farm by the Land Bank, and bought the farm from Bester at a price
that approximated the debt to the Land Bank, and in the deed
of sale
afforded Bester the rights of lifelong use and occupation. He also
agreed that Bester could buy the farm back, but no price
for this
‘right’ was reflected in the deed of sale. It is this
‘right’ that was central to the dispute
between the
parties, because when Bester wished to buy back the farm, Claasen
refused to sell, and was indeed not obliged to do
so, the term being
unenforceable. I shall deal with this shortly.
[2] When Bester brought an action for a declaration that the sale by
him was void, or voidable, and against tender of the repayment
of the
purchase price, claimed restitution (retransfer of the property into
his name), Claasen pleaded that the claim had prescribed.
His special
plea of prescription was adjudicated separately, by agreement, and
Van Zyl J in the Free State High Court held that
the claim had not
prescribed. The appeal to this court is with her leave.
[3] The detailed background to the sale of the farm by Bester to
Claasen is not of significance to the very simple issue on which
this
court is called to decide: whether failure to appreciate that a
contract is void or voidable is a ‘fact’ for the
purposes
of
s 12(3)
of the
Prescription Act 68 of 1969
. But some facts are
germane and I shall deal with them shortly. First, however, it is
useful to set out the relevant terms of
s12(3)
of the Act.
Section 12(1)
provides that prescription shall begin to run as soon
as the debt is due.
Section 12(3)
provides:
‘
A debt
shall not be deemed to be due until the creditor has knowledge of the
identity of the debtor and of the facts from which
the debt arises –
Provided that a creditor shall
be deemed to have such knowledge if he could have acquired it by
exercising reasonable care.’
[4] The facts, in summary, are these. A sale in execution of Bester’s
farm, to be held on 26 September 2001, was advertised
on 14
September. A few days before the proposed auction, Claasen and his
son and son-in-law visited Bester on the farm and discussed
the
possibility of buying it before the auction. Bester and his wife
subsequently visited Claasen and proposed that should he sell
the
farm to Claasen, he should have the right to buy back the property,
to be reflected in the deed of sale. On the same day, 25
September
2001, the parties went to see an attorney, also a Mr Claasen, to
discuss a sale on these terms. Bester testified that
at that meeting
he had insisted that the price at which he would buy back the farm
must be market-related. The following day the
parties signed the deed
of sale. And on 29 September 2001 they amended it to reflect Claasen
as the sole purchaser. Transfer of
the farm was effected on 24 July
the following year, 2002.
[5] Bester did not read the deed of sale in detail when he signed it.
He relied on attorney Claasen whom he thought had included
in the
deed what he and Claasen had agreed. But it is common cause that the
right Bester thought he had acquired to purchase the
farm at a
market-related price was not contained in the deed. The contract
provided that Bester sold the farm, fully described
in the document,
to Claasen for R175 000 which would be payable in a prescribed
fashion to the Land Bank.
[6] The deed contained several ‘spesiale voorwaardes’,
which in fact conferred rights on Bester. These included a lifelong
right to live in the house which he occupied, for no consideration.
He was obliged, however, to maintain the house, and precluded
from
transferring the right of occupation. Bester was also afforded the
rights to have weekend visitors and to allow them to fish,
provided
that they did so in an orderly fashion; and to keep a few head of
cattle, the number determinable at Claasen’s discretion.
[7] The clause as to the repurchase by Bester provided that:
‘
Die
koper verleen hiermee ‘n terugkoop reg aan die verkopers om die
hiermee verkoopte eiendomme binne ‘n tydperk van
5 jaar vanaf
datum hiervan te kan terugkoop. Die koopprys, terme en of voorwaardes
van so ‘n koop om tussen die partye wanneer
die reg uitgeoefen
sou word, bepaal te word. . . .’
Bester claimed not to have read this provision: he had relied on
attorney Claasen to reflect the price as being market related.
It was
only when he obtained a copy of the deed of sale on 3 March 2004,
from attorney Claasen, that he realized that such a provision
had
been omitted. He was advised by another attorney, Mr B G Smit, that
the provision actually included was vague.
[8] From that date onwards, Smit attempted to have the ‘special
conditions’, including the ‘right’ to buy
the farm
registered against the title deed of the property. Numerous letters
were exchanged, including from attorney Claasen now
acting on behalf
of Claasen only, stating that the latter had no intention of selling
the farm, and from Smit on behalf of Bester
purporting to exercise
his right. Eventually, on 11 January 2006, attorney Claasen advised
Bester through Smit that, having obtained
the opinions of two
advocates, the provision purporting to give Bester the right to buy
back the farm was a nullity.
[9] On 14 December 2007 Bester served summons, claiming a declaration
that the entire sale was void or voidable and that he was
entitled to
return of the farm, and tendered return of the purchase price.
Claasen raised a special plea of prescription, which,
if upheld,
obviated the need to consider other issues such as the severability
of the void provision from the balance of the agreement.
[10] The high court, in a lengthy disquisition on the facts, and on
the law of prescription, held that the claim had not prescribed.
It
found that until 11 January 2006, when Bester was advised that the
buy back provision was not enforceable, he had been ignorant
of its
unenforceability. He thus did not have knowledge of the facts from
which the debt arose until that date.
[11] The argument of Claasen on appeal is that a conclusion of law is
not a fact. There was but one fact of which Bester was ignorant:
that
a price or a determinable price had not been put in writing in the
deed of sale. And that Bester learned on 3 March 2004 when
he
obtained a copy of the deed of sale. It was unquestionable that the
provision as to the buy back was unenforceable because of
the
requirement of s 2(1) of the Alienation of Land Act 68 of 1981(that
all material terms of a contract for the sale of land be
reduced to
writing): the provision in the deed did not determine the price (a
material term), or set out a means for determining
the price. The
invalidity of the provision was a conclusion of law, and not a fact.
Prescription thus began to run on 3 March 2004
when Bester knew that
no price had been determined in the provision. Claasen argued that
this was the only fact that Bester needed
to know in order to have a
cause of action. Bester knew that fact on 3 March 2004 when he saw
the deed of sale. That is when prescription
began to run.
[12] I do not propose to discuss the many cases that have dealt with
the question when prescription begins to run for the purposes
of
ss
12(1)
and (3) of the
Prescription Act. The
most pertinent suffice. In
Drennan Maud & Partners v Pennington Town Board
[1998] ZASCA 29
;
1998 (3)
SA 200
(SCA) at 212F-J Harms JA, in a separate concurring judgment,
said
‘
In
short, the word “debt” does not refer to the “cause
of action”, but more generally to the “claim”
. . .
. In deciding whether a “debt” has become prescribed, one
has to identify the “debt”, or, put differently,
what the
“claim” was in the broad sense of the meaning of that
word.’
[13] In
Truter v Deysel
[2006] ZASCA 16
;
2006 (4) SA 168
(SCA) para 16 this
court said 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,
in other words, when
everything has happened which would entitle the creditor to institute
action and to pursue his or her claim.’
Truter
dealt with a claim in delict. Bester argued that claims
in contract may be different, and relied on
Van Staden v Fourie
1989 (3) SA 200
(A) at 216F-G where the court left open the question
whether the nullity of a contract (a legal conclusion) was a fact for
the
purpose of
s 12
of the
Prescription Act. But
in
Truter
(para 20) Van Heerden JA said also:
‘
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 the conclusion.’
[14] And in
Minister of Finance v Gore
2007 (1) SA 111
(SCA)
para 17 Cameron and Brand JJA said:
‘
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.’ (My emphasis).
[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 v MEC, Department of Planning and Local Government
[2009] 3 All SA 475
(SCA) 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.
[17] Bester, in his replication, asserted that the running of
prescription was interrupted by Claasen’s willingness to have
the conditions registered, and contended, albeit faintly, before us
that Claasen had indicated that he knew that Bester had a right
to
buy back the farm. But that too is irrelevant.
Section 14
of the
Prescription Act provides
that the running of prescription may be
interrupted by the debtor’s acknowledgment of his indebtedness.
Since there was no
debt to acknowledge, Claasen could hardly have
indicated liability in any way.
[18] Accordingly prescription began to run by 3 March 2004, and any
claim that Bester may have had prescribed by the date when
summons
was issued and served – 14 December 2007. The appeal must thus
succeed.
[19] The appeal is upheld with the costs of two counsel. The order of
the high court is replaced with:
‘
The defendant’s special plea of
prescription is upheld, and the plaintiff’s claim is dismissed,
with costs.’
_____________
C H Lewis
Judge of Appeal
APPEARANCES:
FOR APPELLANT: J S Saner (with him N J Louw)
Instructed by
Claasen Prokureurs, Frankfort
Schoeman Maree, Bloemfontein.
RESPONDENT: J Daffue SC
Instructed by
Smit & Oertel Inc, Frankfort
Symington & De Kok, Bloemfontein.