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[2015] ZAFSHC 25
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Anderson v Bredenkamp N.O. (5469/2007) [2015] ZAFSHC 25 (8 January 2015)
IN
THE HIGH COURT OF SOUTH AFRICA
FREE
STATE DIVISION, BLOEMFONTEIN
Case
Nr: 5469/2007
In
the case of:-
ANDERSON
ANGELINA
...................................................................................
Plaintiff
and
ELMER
JUNIUS BREDENKAMP N.O.
…..................................................
Defendant
(In
his capacity as executor of the estate of the late Violet du Plessis)
CORAM:
MURRAY, AJ
JUDGMENT
BY:
MURRAY, AJ
HEARD
ON:
14 & 15 OCTOBER 2014
DELIVERED:
8 JANUARY 2014
[1]
This judgment pertains to the Special Plea of prescription which by
agreement is adjudicated separately. The quantum and merits
stand
over for later adjudication.
[2]
In brief, the Plaintiff received, in terms of a Deed of Gift (“the
Deed”) two erven as a gift from her late mother
(“the
mother”) on 26 September 1994. The erven formed part of
Sub-division 7 of the consolidated farm Louterwater
No 77 in the
district of Parys which was registered in the mother’s name.
The Plaintiff built a house on the said erven in
1995 and effected
further improvements to it in 1998 and 2002, but since the Deed
contradicted the provisions of the
Subdivision
of Agricultural Land Act, 70 of 1970,
(“the Act”), Louterwater was never sub-divided in order
to transport the erven to the Plaintiff. (See:
Wary
Holdings (Pty) Ltd v Stalwo (Pty) Ltd and Others
[1]
).
[3]
The Plaintiff now offers restitution of her occupancy of the erven
and claims from the deceased estate in an enrichment action
payment
of R548 527.00, being the value of the fixed improvements she
had made to the land in the
bona fide
belief that the Deed was valid and that
she was to be the sole heir of the undivided property. Her
step-brother (“the
brother”), the executor of her
mother’s estate, and in terms of the mother’s last Will
the sole heir, occupies
the Plaintiff’s house and avers in a
Special Plea on behalf of the estate that her claim has prescribed.
[4]
The enrichment action stems from a long history of family discord.
The mother executed a series of Wills since 1989 and
her
beneficiaries and heirs varied from Will to Will.
Originally, in 1989, she bequeathed the property “
in
two equal shares”
to her two
children, the Plaintiff and the brother. In a new Will on 6 May
1998 she left the entire property to the Plaintiff;
in 2004 she left
the entire property to the brother on condition that the Plaintiff be
allowed to remain in her own house for as
long as she wished to, and
in her last Will in 2005 she simply left everything to the brother.
She passed away in 2011
at the age of 93, having been under
curatorship since 2008, and the brother now farms the still undivided
property,
[5]
The brother came to live with the mother at some unknown date and
around 2002 the relationship between the mother, the Plaintiff
and
the brother soured to such an extent that in 2004 the brother sealed
off the gate to the farm with red tape and refused the
Plaintiff
access to her own house. For a while thereafter the
relationship between the Plaintiff and the brother improved,
but in
2006 the brother secured the gate with a new lock, finally locking
out the Plaintiff. After several unsuccessful attempts
to have
the erven transferred to her name, the Plaintiff on 15 November 2007
instituted action against the mother for R 1 500 000.00,
alleged to be the value of the two erven including the house.
[6]
In the original Plea in January 2008 the Defendant pleaded that the
Plaintiff’s house was an unlawful structure because
it was
built without the consent of the Rand Water Board (“Rand
Water”) and averred that, since the last improvements
were
finalised by 31 December 1997, the Plaintiff’s claim had
prescribed by 31 December 2000. The Defendant expressly denied
that
the Deed did not comply with the provisions of the Act and
specifically pleaded that if it were found not to comply, such
non-compliance did not make it invalid.
[7]
On 25 April 2013, however, in an abrupt about-face in the Amended
Plea the Defendant specifically pleaded that the Deed was
indeed void
and invalid
ab initio
because
of its failure to comply with the Act
.
The Deed was no longer alleged to be
invalid because of the Plaintiff’s failure to obtain the
necessary consent from Rand
Water. The Defendant instead
averred that the Plaintiff was not
bona
fide
in that she knew before building
the house in 1995 that the land could not be subdivided without the
Minister’s consent and
that she nevertheless built the house on
the mother’s land without such consent.
[8]
On 24 July 2013 the Plaintiff amended her Particulars of Claim.
She then claimed from the deceased estate on the
basis of enrichment
R917 385.00, alleged to be the building costs of the house.
On 9 October 2014 she filed a
Further Amended Particulars of
Claim in which she claimed only R 548 527.00, alleged to be the
costs of the improvements alone.
She also averred,
inter
alia,
that she was informed of the
invalidity of the Deed in 2006 only, after the brother had finally
locked her out of her house, and
that she had always acted in the
bona fide
belief
that she was to be the sole heir anyway.
[9]
The Defendant on 15 October 2014, the second day of the trial, filed
a further amendment to the Special Plea contained in its
2013 Amended
Plea. It pleaded in the alternative that further improvements to the
Plaintiff’s house were finalised by 31
December 2002 and that
her claim would therefore have prescribed by 31 December 2005.
In the further alternative the
Defendant pleaded that, should it be
found that the Plaintiff’s claim had been suspended because of
the provisions of section
12(3) of the Prescription Act, 68 of 1969
(“the
Prescription Act&rdquo
;), prescription started running
when the Plaintiff on 15 July 2004 instructed her attorneys to
enforce the Deed.
[10]
In the said 2004 letter of demand the Plaintiff’s attorneys
claimed in the alternative to signing of the transfer documents,
payment of the market value of the house. The Defendant averred
that the demand for payment could only have been necessary
if the
Deed were invalid. The Defendant therefore alleged that on that
date the Plaintiff knew that the Deed was invalid
or had constructive
knowledge of the facts necessary to sustain her cause of action.
In its view her claim therefore prescribed
on 15 July 2007, four
months before her summons was served on 15 November 2007.
[11]
In
Macleod
v Kweyiya
[2]
the Supreme Court of Appeal confirmed that a defendant bears the full
evidentiary burden to prove a plea of prescription, including
the
date on which a plaintiff obtained actual or constructive knowledge
of the debt. The Defendant therefore bears the onus
of proving
one of the three prescription dates listed in the Amended Special
Plea, namely 31 December 2000; 31 December 2005, or
15 July 2007.
The Plaintiff denies that her claim has prescribed and claims
to have had knowledge of all the material
facts necessary to sustain
her cause of action only in 2006 when an attorney advised her of the
invalidity of the Deed.
[12]
It is trite that in terms of
s 11(d)
read with
s 12(1)
of the
Prescription Act civil
debts prescribe three years from the date on
which the debt is due, provided that the debt is immediately
claimable and the various
components of the cause of action have
fully accrued.
[3]
[13]
In certain circumstances
s 12(3)
of the
Prescription Act delays
prescription, however. As confirmed in
ATB
Chartered Accountants (SA) v Bonfiglio
[4]
in terms of
s 12(3)
of the
Prescription Act a
debt shall not be
deemed to be due until the creditor has knowledge of the identity of
the debtor and 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.
[14]
In the present case the identity of the debtor (the mother) was
always known. The dispute is about the date on
which the
facts sustaining the Plaintiff’s cause of action were known or
could have been known with the exercise of reasonable
care, i.e. when
everything has happened which could entitle the Plaintiff to
institute action and to pursue her claim.
[5]
What does need to be determined
in
casu
therefore
is the date on which the Plaintiff acquired, or could reasonably have
acquired with reasonable care knowledge of the facts
from which the
debt arose.
[15]
The Supreme Court of Appeal has determined that what is required for
prescription to start running, is knowledge of the minimum
facts
necessary to institute action.
[6]
It has also determined that in order to successfully invoke
s 12(3)
of the
Prescription Act either
actual or constructive knowledge of
such facts must be proved.
[7]
Constructive knowledge is established if the creditor could
reasonably have acquired knowledge of the identity of the debtor
and
the facts on which the debt arises by exercising reasonable care.
The Defendant in the present matter is clearly relying
on
constructive knowledge.
[16]
The test for such constructive knowledge is what a reasonable person
in the Plaintiff’s position would have done to acquire
the
necessary knowledge.
[8]
In
order to delay prescription in terms of
s 12(3)
the Plaintiff is
therefore expected to act reasonably and with the diligence of a
reasonable person in acquiring the said knowledge.
It has been
held that she “
cannot
simply sit back and by supine inaction arbitrarily and at will
postpone the commencement of prescription”
.
[9]
[17]
In
Claasen
v Bester
[10]
the Court held, furthermore, that the invalidity of a provision was a
conclusion of law and not a fact and that knowledge of legal
conclusion, i.e. that the known facts constitute invalidity, was not
required for prescription to commence
[11]
.
It would suffice if the Plaintiff had knowledge of the minimum facts
which were necessary to institute action
[12]
and which could sustain such conclusion.
[18]
In view of the above, it was argued for the Defendant that the advice
given to the Plaintiff by her attorneys in 2006, namely
that the Deed
was invalid because of non-compliance with the Act, was merely a
legal conclusion and not a fact, and that prescription
was not
delayed until she actually had knowledge of such legal conclusion. On
that basis, it was argued, she had knowledge or at
the very least
constructive knowledge, of the material facts necessary to issue
summons on 15 July 2004 and that, therefore, her
claim prescribed on
15 July 2007.
[19]
To determine whether that is indeed so, one needs to examine the
circumstances in which the Plaintiff found herself at that
time to
determine if she did what a reasonable person with her
characteristics in her circumstances would or should have done to
obtain such knowledge, keeping in mind that in
Administrator,
Cape v Olpin
[13]
it was emphasised that
s 2(2)(c)
of the
Prescription Act required
only “
the
exercise of reasonable care”
in
acquiring the necessary knowledge, “
not
heroic deeds or exceptional diligence or prudence in an extreme
degree on the part of the creditor
…”.
[20]
It may be so that prescription would not have been delayed until she
was informed that the Deed was invalid, or until she had
knowledge of
the full extent of her legal rights
[14]
but she would still need to have had knowledge of all the facts that
would have led to such a conclusion and that she would have
had to
prove, if traversed, in order to support her right to judgment in her
favour.
[15]
[21]
The Plaintiff’s summons was served on 15 November 2007. The
question before the court is thus whether the Plaintiff had
actual or
deemed knowledge of “
the facts
from which the debt arises”
, i.e.
that there was no Ministerial permission for sub-division and that
she was therefore not entitled to sub-division and transport
in terms
of the Deed, prior to 15 November 2004.
[22]
It was argued on behalf of the Plaintiff that what the proviso to
section 12(3)
of the
Prescription Act seeks
to prevent is negligent,
not innocent, inaction and that she was not guilty of negligent
inaction. It is trite that the object
of
s 12(3)
is to ensure that it
is negligent rather than innocent inaction that is penalized.
[16]
In
Brand
v Williams
[17]
it was stated that:
“
The
main object of extinctive prescription is no doubt to create legal
certainty and finality between the parties after a lapse
of time. But
prescription does not simply serve as a blunt instrument to achieve
finality regardless of the circumstances of the
creditor.
[18]
…
This
is recognised in
s 12(3)
…”
[23]
The constructive knowledge contemplated in
s 12(3)
has been held to
be established if it can be shown that the creditor could reasonably
have acquired knowledge of the identity of
the debtor and the facts
on which the debt arises by exercising reasonable care. In the
present case the identity of the debtor
has never been a problem: it
was always the mother or her estate. What does need to be determined
in casu
is
the date on which the Plaintiff either acquired, or could reasonably
have acquired with reasonable care knowledge of the facts
on which
the debt arose.
[24]
What is reasonable must be determined according to the Court in
Mcleod
v Kweyiya
[19]
with reference to the particular circumstances in which the Plaintiff
found herself. Such circumstances and the reasonableness
of the
Plaintiff’s conduct need to be determined from the evidence.
In the instant case only the brother and the Plaintiff
testified and their evidence therefore needs to be examined.
[25]
The brother focused on the defence in the original Plea, namely the
Plaintiff’s alleged failure to obtain permission
from the Rand
Water Board before building her house in 1995. On his version
she has known since then that the Deed was invalid.
He
averred that he and the Plaintiff each received two erven in terms of
similar Deeds of Gift in 1994 and that they visited
Rand Water
together to determine what was needed to build on the erven which
were adjacent to the Vaal River. According
to him, a
certain Mr du Plessis informed them that the Deeds ‘
were
of no use’
and that a second
house could not to be built on the farm.
[26]
When he took the Plaintiff’s building plans to the Department
of Health in Parys, hoping to get their approval instead,
he was told
that, even though there was nothing wrong with the plans, the
Plaintiff would still need Rand Water’s permission.
According to him the Plaintiff in 1995 went ahead and built the house
anyway, even extending it in 1997 and 2002, while she knew
that the
Deed was invalid for lack of Rand Water’s permission.
[27]
He averred that in 2003 a dispute arose between the Plaintiff, the
mother and himself regarding some fence which the Plaintiff
allegedly
tried to move to increase the size of her property. Though by
then he was living with his mother, he professed
to have known
nothing about his mother’s alleged intention to sell the farm
until he took her to an attorney to write to
the Plaintiff regarding
inter alia
the
fence and the latter’s continued attempts to persuade the
mother to sell the property. He maintained that he had
discovered in the Plaintiff’s house a document which showed
that she had contracted a surveyor to divide the property in
two in
1997 already.
[28]
In cross-examination when asked if he agreed that the Rand Water
permission had nothing to do with sub-division, he merely
said it was
not within his knowledge and repeated that Rand Water had informed
them that it would be unlawful to build there. Though
the Defendant’s
present case is that the Deed was invalid because of non-compliance
with the Act, not because of a lack of
permission from Rand Water,
and that its invalidity prevented sub-division of the farm, he did
not address that issue at all, but
merely insisted that the Plaintiff
has known since 1994 that the Deed was invalid. The
averment in the Amended Plea
that the Plaintiff was not
bona fide
because she knew before building the house that she would need
the Minister’s permission was merely averred in a bald
statement.
[29]
In cross-examination he also had to concede that he had no knowledge
of the circumstances surrounding the 1997 surveyor-document,
and that
he could not deny that it could have been drafted to facilitate
potential future sub-division as alleged. He merely insisted
that the
plan was drafted without his and the mother’s knowledge. He had
to concede, furthermore, that he did not know when
exactly the
Plaintiff’s attorney advised her of the invalidity of the Deed
or when the Plaintiff first knew of the Will of
6 May 1998.
[30]
The Plaintiff testified that she only learnt of the invalidity of the
Deed from an attorney, one Mr de Wet, in 2006. Before
then, she was
unaware that she could not obtain transport in terms of the Deed and
she was unaware of the need to obtain the Minister’s
consent
for sub-division. She denied that she had accompanied the brother to
Rand Water and averred that she and her mother spoke
to a Mr Hogue by
telephone and that the mother was informed by him that there could
not be two houses on the farm. She maintained
that her mother then
told him that it was her land and that she gave the Plaintiff
permission to build on it.
[31]
She testified, furthermore, that she drew the information regarding
the requirements for building in that area from the Internet,
contrary to the brother’s averment that Mr du Plessis gave her
the relevant document. She testified that she did obtain Rand
Water’s
permission, as shown by the 1994 “
approved
regarding health issues”
stamp on
the plans included in the trial bundle and that she reconfirmed the
said approval with Mr Hogue just a month before the
trial. She
maintained that the house was 80 meters above the flood line and that
she therefore needed no other permission
from Rand Water.
[32]
Regarding the Defendant’s contention that she should have had
constructive notice of all the facts necessary to sustain
her cause
of action in July 2004 when she instructed her attorneys to enforce
registration of the erven or pay her the value of
the improvements on
the land, she explained that at that time she only gave the
instructions to stop her brother from harassing
her by locking her
out of her own house. The demand for payment was added only to
give her mother an alternative option,
although she knew that her
mother would rather give her the erven than the money. She insisted
that the money was not claimed on
the basis of enrichment but simply
to provide for potential loss if transport should be refused and the
house were allowed to stay
empty and be ransacked.
[33]
She testified that she never received any reply to or feedback on
that 2004 letter. She did not follow up on the attorneys’
threat of legal action as there was no need to do so since the
relationship between her and her brother had improved to the extent
that he no longer denied her access to her own house. And she still
had the
bona fide
belief
that she was to inherit the entire property when her mother died.
[34]
In 2006, however, when the brother finally locked her out by changing
the lock on the entrance gate, she consulted a new attorney,
one Mr
de Wet. He was the one who informed her that the Deed was invalid for
non-compliance with the Act and told her that she
could not rely on
it for sub-division. Mrs Muller, her next attorney confirmed
the said invalidity of the Deed and in May
2006 told her that the
Minister’s permission was necessary for sub-division of the
property. On her instructions
Mrs Muller approached the
mother in writing to request transport of the Plaintiff’s
erven, offering to draft the sub-division
documents and obtain the
Minister’s consent. The Power of Attorney which she
annexed, was faulty, however, since it
purported to authorise
transportation of the entire undivided property instead of the two
erven only. When the request for
transport and the alternative
prayer for payment of the value of the house were refused, an
enrichment action was instituted on
15 November 2007.
[35]
The Plaintiff insisted that she had built the house and effected the
improvements in the
bona
fide
belief
that the Deed was valid and that she was to be the eventual heir of
the entire undivided property which is why she made no
effort to
secure the sub-division of her erven before her brother locked her
out of the property. She had no reason to doubt
her mother’s
promise never to change the 1998 Will and to cut out the erven or
compensate the Plaintiff if she would sell
the farm.
[20]
That she only learnt that she was no longer the heir shortly after
her mother’s death in 2011 was not disputed. She
explained,
furthermore, that the claim which she submitted against the deceased
estate in 2011 and which was based on the invalid
1994 Deed was so
submitted because she believed that the executor of the estate had
the power to authorise the transportation of
her two erven.
[36]
Regarding the surveyor’s document the brother found in her
home, she explained that in 1997 a surveyor from Bloemfontein,
one Mr
du Plessis, visited the farm to do a survey for a proposed road.
Since at that time the mother still talked about selling
the farm,
the Plaintiff asked him whether it would be possible to “
cut
out”
her two erven and register
them in her name if her mother should decide to sell and asked him to
draft a plan for such a potential
‘cut’ in order to
facilitate the registration of the erven in her name should a sale
indeed occur.
[37]
In view thereof that the evidence of the two witnesses in this matter
is mutually destructive, the Court should ideally follow
the approach
adopted in
Kriel
v Meyer and Others
[21]
,
namely to come to a conclusion on the disputed issues by making
findings on the credibility of the various factual witnesses;
their reliability; and the probabilities.
[38]
In the circumstances of this matter, a credibility finding is rather
difficult. Neither of the two witnesses made
a
particularly positive impression on the court. The acrimonious
nature of the feud between them over the mother’s
property was
very much in evidence in the accusations they directed at each
other. Both of them obviously have a vested interest
in the
outcome of the trial and both have reason and a motive to lie.
While the brother appeared cold and calculated and
remained totally
expressionless throughout his testimony, the Plaintiff was very
emotional, obviously extremely angry, and was
quite agitated and at
times almost incoherent. A further complication is that the relevant
events span a period of 20 years which
might be a perfectly good
explanation for apparent inconsistencies in their evidence. All of
the above made it extremely hard to
distinguish between fact and
fabrication.
[39]
In my view, this is a typical case in which the problem is what
weight to attach to the various factors. Although appearance
and demeanour are obviously very important considerations in
evaluating credibility, it is “
notoriously
fallible as a decisive ground for decision”
and
it is seldom be possible, as in the instant case, to draw a
conclusion regarding their credibility simply by comparing the
appearance and demeanour of one witness with that of the other
[22]
.
See, for example,
S
v Momokela
[23]
:
“
After
all it is common experience that the “demeanour” alone of
a witness is but an unsafe guide in ascertaining the
truth, because
the nervousness of an honest witness may create a bad impression
whereas the brazen and bold liar may easily deceive
the observer into
believing that he is telling the truth. In addition to
the demeanour of the witness one should be
guided by the probability
of his story, the reasonableness of his conduct, the manner in which
he emerges from the test of his
memory, the consistency of his
statements and the interest he may have in the matter under enquiry.”
[40]
The Court had to keep in mind the warning that the danger of being
misled was real since a liar may have a smooth tongue while
a
credible witness may appear hesitant and unsure, and that for that
reason our courts pay more attention to objective factors
such as the
probabilities of the witness’s story measured against the facts
in total; the absence or presence of prejudice
or bias, corroborating
elements, and so forth.
[24]
[41]
The Plaintiff’s emotions appeared sincere, especially her
spontaneous reaction when asked if she was jealous of her brother
for
being the sole heir
: “Nee,
ek gun dit vir hom. Hy het al baie swaar gekry.”
(“
No,
he is welcome to it. He has had a very hard life.”).
This ties in with her testimony that she had told her mother that she
need not inherit anything apart from the two erven.
I did not
get the impression that she was attempting to lie, but rather that
she believed in what she was trying to get across.
She could
explain apparent contradictions such as her averment that the note
regarding “Annexure ‘C’” on
her document
‘
looked like’
her handwriting while she later said she did not know who wrote it.
I accept, furthermore, that the passing of 20 years must
certainly
have had some influence on her memory of the finer details of some
events. Of the material issues she seemed sure.
[42]
She was not shaken in cross examination about the allegation that she
was present during the Rand Water visit. She was not
shaken, either,
about her testimony that she only learnt in 2006 that the Minister’s
permission was necessary and that sub-division
in terms of the Deed
was impossible. She explained the steps she took in the past 20
years to protect her right to the erven
that her mother “gave
and bequeathed to her” in the Deed, and ‘guaranteed’
in the 1998 Will, when neither
she nor her mother knew that the Deed
was invalid.
[43]
On her version in 2004 she still had the
bona
fide
belief that she had a valid claim
to the erven and the right of occupancy thereof in terms of the Deed.
Her evidence that she was
at stage still under the
bona
fide
impression that in terms of the
1998 Will she would be the sole heir to the entire property upon her
mother’s death, was not
contradicted. The mother was already 86
years old and had by then changed her mind about selling the
property, so there was no
need to obtain transfer other than to put a
legal stop to her brother’s obstructive behaviour. When
the relationship
with him normalised, the reason to obtain transfer
also fell away. Until she was finally locked out of her own house in
2006, it
was not necessary to institute an enrichment claim.
When it was clear that the brother meant to lock her out permanently,
she went to see the two attorneys who advised her of the Deed’s
invalidity and of the need for Ministerial permission, and
who
subsequently issued summons on her behalf.
[44]
All in all, it appears to me that the Plaintiff’s evidence ties
in with the totality of the circumstances known to the
Court and that
there is nothing inherently improbable about her version. I
cannot find that she failed to act reasonably
to obtain the necessary
knowledge to institute action and therefore agree with Counsel for
the Plaintiff that there is no indication
that, in the circumstances
of this case, she acted negligently or without due diligence to
obtain knowledge of whatever facts were
necessary to be established
to prove her claim. She can certainly not be accused of
ineptitude, indifference or inertia in
obtaining the necessary
knowledge.
[25]
[45]
The brother’s evidence was much more limited. There were
no obvious contradictions in his evidence, but that might
be because
it was restricted primarily to the circumstances surrounding the
building of the Plaintiff’s house between 1995
and 2002.
It seems improbable, as argued on behalf of the Plaintiff, that the
Plaintiff would have gone to all the expense
not only to build the
house but also to improve and extend it if she had known all along,
as the brother averred, that the property
could not be sub-divided.
In cross-examination the brother had to concede that he did not know
when exactly the Plaintiff was informed
by her attorneys that the
Deed was invalid or when she knew about the provisions of the 1998
Will.
[46]
In the light of the peculiarities of this case and of the
difficulties set out above, I am of the view that the probabilities
of the Plaintiff’s evidence when measured against all the facts
of this case need to weigh stronger than the impression that
she made
in court. I cannot find that there are inherent improbabilities in
her version that are so material that they are fatal
to her averment
that prescription has not obliterated her claim.
[47]
In the final instance one has to decide, then, whether the Defendant
has succeeded in discharging his onus to prove prescription
in the
circumstances of this case. The burden would have shifted to
the Plaintiff only if the Defendant had established a
prima
facie
case, not because the date the
necessary knowledge was acquired may have fallen within the exclusive
knowledge of the Plaintiff
[48]
In my view the Defendant failed to prove the exact date on which the
Plaintiff did or could have acquired knowledge of the
necessary facts
to prove her case. And there is no evidence, other than
the brother’s bald averment, that she
knew before 2006 of the
lack of the Minister’s permission and the Deed’s
non-compliance with the Act, and definitely
not that the brother
would move into her house and take over the property to her detriment
and her mother’s enrichment.
[48]
I therefore find that the Plaintiff’s claim has not prescribed
and that the Special Plea should therefore be dismissed.
There is no
reason why costs should not follow the outcome.
WHEREFORE
THE FOLLOWING ORDER IS MADE:
1.
The Special Plea of prescription is
dismissed with costs.
__________________________
H
MURRAY, AJ
On
behalf of the Plaintiff: Adv PJL Venter
Instructed
by: J Nel
Webbers
Attorneys
46
Charles Street
BLOEMFONTEIN
On
behalf of the Defendant: Adv PJJ Zietsman
Instructed
by: Mr JP Smit
Phatshoane
Henney Attorneys
35
Markgraaff Street
Westdene
BLOEMFONTEIN
[1]
[2008]
JOL 22099
(CC) paras [13], [97] and [103] and footnotes
5, 87s.
[2]
2013
(6) SA 1 (SCA) at paras [9] – [10] and [13] at 6A – 7D
and 7J – 8D.
[3]
Deloitte
Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman
Deutsch (Pty) Ltd
[1990] ZASCA 136
;
1991 (1) SA 525
(A)
at 532G – I and Evins v Shield Insurance Co Ltd
1980 (2) SA
814
(A) at 838 – 839.
[4]
[2011]
2 ALL SA 132
(SCA) at p. 133
[5]
ATB
Chartered Accountants,
supra,
at
p. 136 and Truter and Another v Deysel
[2006] JOL 16961
(SCA) at
para
[16]
[6]
Claasen
v Bester,
2012 (2) SA 404
(SCA)
,
at
paras [14] and [15]
[7]
Macleod
v Kweyiya,
2013 (6) SA 1
(SCA) at para [9]
[8]
Drennan
Maud & Partners v Pennington Town Board
[1998] ZASCA 29
;
1998 (3) SA 200
(SCA) at
209F – G.
[9]
Uitenhage
Municipality v Molloy
[1997] ZASCA 112
;
1998 (2) SA 735
(SCA) at 742A – C.
[10]
2012
(2) SA 404
(SCA) at paras [1], [3] and [12] – [16] at
405F – G, 405I – 406B and 407I – 408I.
[11]
Truter
and Another v Deysel 2006(4) SA 168 (SCA) at para [20]
[12]
Minister
of Finance and Others v Gore NO
2007 (1) SA 111
(SCA) at para [17]
[13]
1996
(1) 569 (C) at 577H
[14]
Truter
and Another v Deysel
[2006] JOL 16961
(SCA) at para [18]
[15]
Truter
v Deysel,
supra,
at
para [19].
[16]
M
M Loubser: Extinctive Prescription, 1996, at pp. 105 and 107..
[17]
1988
(3) SA 908
(C) at 9138C (As quoted in Kriel v Meyer &
others [2011] JOL 28018 (E))
[18]
MM
Loubser: “Toward a Theory of Extinctive Prescription”
(1988) 105 SALJ 34
at 53..
[19]
S
upra,
at
paras [13]
[20]
McLeod
v Kweyiya,
supra,
at
para [14].
[21]
[2011]
JOL 28018
(E) at p 18 and further
[22]
Schmidt:
Bewysreg, 4de uitgawe, at p. 106
[23]
1936
OPD 23 24
[24]
Schmidt,
supra,
at
p. 106.
[25]
Loubser,
supra,
at
p.106