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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)

CASE NO: 796/2024
REPORTABLE

In the matter between:

DESMOND MATTHEW DE WET APPLICANT

and

MARK GEORGE BARRON FIRST RESPONDENT

THE SHERIFF, DISTRICT OF PAARL SECOND RESPONDENT

REGISTRAR OF DEEDS, CAPE TOWN THIRD RESPONDENT

STANDARD BANK OF SA LTD FOURTH RESPONDENT

Coram: MOOSA AJ
Heard: 4 AUGUST 2025
Delivered: 22 AUGUST 2025 (delivered electronically to the parties)
Summary: Prescription – whether claim for specific performance prescribed
– nature of reciprocal obligations – interruption of prescr iption –
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sections 12(3), 13(2) and 14(1) of the Prescription Act
considered.
___________________________________________________________________
ORDER
___________________________________________________________________
1. The application is dismissed with costs. Counsel’s fees are allowed on scale B.
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Moosa AJ

Introduction

[1] This judgment pertains to an application for specific performance . It was
issued on 12 January 2024 . Pursuant to a deed of sale dated 25 July 2014, the
Applicant seeks an order which would compel the First Respondent to take all
necessary steps to effect registration of transfer into the Applicant’s name of one-
half, undivided share in portion 54 (portion of portion 14) of Farm no. 1202 in the
Stellenbosch Municipality, held by First Respondent under Deed of Transfer T[...]
(“the property”).

[2] The application was argued before me on a narrow point of law only, namely,
whether the Applicant’s claim for transfer of the property was unenforceable by
reason that it had prescribed under the Presc ription Act 68 of 1969 (“the Prescription
Act”).

[3] If the Applicant’s claim is subject to extinctive prescription as was plead by the
First Respondent, then that would be dispositive of the application . Counsel for both
parties agreed that, notwithstanding the contention in the court papers that there are
material factual disputes requiring oral testimony , the facts are germane to a
determination of the prescription issue are common cause so that this issue is
capable of being resolved on the papers alone, even using a robust, common-sense
approach (if necessary) . I agree. See Soffiantini v Mould 1956 (4) SA 150 (E) at
154G-H.

Issue for adjudication

[4] The issue which forms the subject of this judgment is a crisp question of law,
namely, whether the Applicant’s claim for transfer of the property has prescribed
under the Prescription Act . If yes, then the application must fail and is to be
dismissed.

Relevant factual matrix

[5] The facts narrated under this heading are those common cause ones distilled
from the pleadings which are relevant to a determination of the prescription issue.

[6] The Applicant and the First Respondent have been acquainted for more than
two decades. During 2013/2014, the First Respondent experienced financial
difficulty. Consequently, he could not fulfil his monthly loan repayment (i.e., mortgage
bond) instalments to Standard Bank of SA Ltd (“the Bank ”). The property is
hypothecated to the Bank as security for First Respondent’s indebtedness to it
arising from a term loan. When the First Respondent defaulted on his payments, the
Bank sued. It obtained judgment and an order authorising foreclosure. To prevent the
complete loss of the property during a sale in execution, First Respondent required
the sum of R50 000,00. Enter the Applicant to the scene.

[7] By agreement, the Applicant advanced the much-needed sum of R50 000,00.
This was paid to the Bank, thereby averting the sale in execution completely.

[8] The R50 000 advance was not given as a loan. By agreement in writing, t hat
payment was made in fulfilment of a contractual obligation included as a ‘special
condition’ in a deed of sale entered into between the Applicant and the First
Respondent at Queenstown, Eastern Cape on 25 July 2014 (“the deed of sale”).

[9] In terms of clause 23, and for the financial benefit of the First Respondent, the
deed of sale stipulated that the ‘Seller & Purchaser hereby authorises Attorneys
Bowes McDougall Inc on date of signature of this Deed of Sale to pay over an

amount of R50 000,00 … of the purchase price to Standard Bank to cancel the Sale
in Execution which is scheduled to be held on Monday 28/7/2014’.

[10] The deed of sale executed on 25 July 2014 is the contract forming the basis
for the Applicant’s cause of action against the First Respondent for specific
performance. Clause 4 thereof is headed ‘Transfer’ . It provides for transfer of the
property to the Applicant after compliance with clauses 2 and 3 of the deed of sale.

[11] For present purposes, it is necessary to quote clause s 2, 3, 4 and 6 of the
deed of sale in full, as well as the relevant part of the breach clause . They read as
follows:

‘2. PURCHASE PRICE
2.1 The purchase price is the sum of R130 000.00 (ONE HUNDRED
AND THIRTHY THOUSAND RAND) which amount has been
paid in full.
2.2 The SELLER accepts responsibility for payment of half of all the
outstanding debt in respect of the property.
2.3 It is herewith recorded that the PROPERTY is bonded in favour
of Standard Bank, Mortgage Bond Number B81292/2004 for the
amount of R230 000.00 (TWO HUNDRED AND THIRTHY
THOUSAND RAND). An amount of approximately R277 000.00
(TWO HUNDRED AND SEVENY SEVEN THOUSAND RAND is
outstanding.
2.4 An amount of R55 135.65 (FIFTY FIVE THOUSAND ONE
HUNDRED AND THHIRTY FIVE RAND AND SIXTY FIVE
CENTS) is due to the Stellenbosch Municipality for arrear and
annual rates and taxes.
2.5 All costs incidental to the registration of the transfer and
mortgage bond and rates shall be paid to the SELLER’S
Conveyancers within 14 (fourteen) days of being called upon to
do so by such Conveyancers.
2.6 Both the SELLER and PURCHASER shall be required to sign
any transfer and bond documentation to give effect to the

registration of the transfer and/or bon d within 7 days of being
called upon to do so.
3. COST OF TRANSFER
The PURCHASER shall pay all transfer costs incurred in respect of the
transfer of the PROPERTY, including transfer duty and costs of this
Deed of Sale, and any VALUE ADDED TAX on such costs , which
amounts shall be paid immediately upon request of the SELLER’S
Conveyancers and provided for in Clause 2.5 hereof.

4. TRANSFER
Transfer of the PROPERTY shall be passed by the SELLER’S
Conveyancers, Bowes McDougall Incorporated and shall be given and
taken upon the PURCHASER and SELLER having complied with
Clause 2.1, 2.2, 2.3, 2.4, 2.5 and 3 hereof. …

6. RATES AND TAXES
6.1 Both the SELLER and PURCHASER shall be responsible for all
arrears rates and taxes and sewerage charges levied against
the property.
6.2 Both the SELLER and PURCHASER undertake that all arear
rates and taxes and refuse removal and sewerage charged
levied against the property and all service charges will be paid in
full on transfer and that the Municipal account will be paid in full
and will be up to date when the property is transferred. …

10. BREACH
…
10.2 Similarly in the event of the SELLER failing to fulfil, on due date,
any of the terms and conditions of this Deed of Sale, the
PURCHASER will be obliged to give the SELLER TEN (10)
days written notice, from the date of delivery of a written notice
to the SELLER to rectify their breach, faili ng which the
PURCHASER will be entitled:

(a) to cancel the sale by registered letter addressed to the SELLER
and to claim any damages which he /she may have suffered; or
(b) to claim delivery of the PROPERTY against payment of the
purchase price.’

[12] Applicant complied with some of his contractual obligations. This included the
special condition in clause 23 of the deed of sale . Clause 2.1 records that the
Applicant paid the purchase price of R130 000,000 in full. He partially complied with
his obligations under clause 6 read with clause 2.4 of the deed of sale . This he did
by paying R20 570,00 of the arrear municipal charges totalling R55 135.65. He made
payments to Stellenbosch municipality in periodic instalments. This occurred during
the period between 14 October 2016 to 18 February 2021 (see annexure DMD6).

[13] The founding papers records that the Applicant took steps for the first time in
January 2021 to ensure that transfer took place. This was more than six years after
the deed of sale was executed on 25 July 2014. The Applicant was unsuccessful. He
avers that the First Respondent was not contactable at th at time. This averment is
undisputed.

[14] The Applicant subsequently contacted the First Respondent on 1 February
2021. On the pleadings, this is the first time when the Applicant called on the First
Respondent to give him transfer of the property . Applicant refers to this as an
‘informal request’. In reply, the First Respondent informed the Applicant that the latter
should reach out to the former’s attorney, Mr L Fortuin. The Applicant duly complied.

[15] On 1 February 2021, w hen t he Applicant reached out to Mr Fortuin
telephonically, the latter informed the Applicant that, in his (Mr Fortuin’s) view, the
deed of sale was unenforceable by reason that the property in question was
agricultural land , which could not be sold without ministerial approval first being
given under the Subdivision of Agricultural Land Act 70 of 1970 . It is common cause
that such approval had not been obtained.

that such approval had not been obtained.

[16] According to the founding papers, a substantial delay exceeding two years
then ensued. The delay on the Applicants’ part was partly due to the advice received

from some attorney firms approached by him to enforce his claim under the deed of
sale, which indicated that a claim for transfer was unenforceable. Other law firms
took no action rega rding his case. The Applicant became despondent as a result of
this and failed to pursue the matter with any vigour. Finally, in August 2023, the
Applicant appointed Etienne Fourie & Co Attorneys ( “EF & Co ”). They launched the
present application.

[17] Prior to initiating this application on 12 January 2024, EF & Co commenced
their work by conducting a property search at the Deeds Office. This was done in
August 2023. It was then that EF & Co discovered that there was an endorsement on
the Deed of Transfer T[...] which pertains to the property held by the First
Respondent. In terms thereof, the property is exempted from the requirement of prior
ministerial consent for any sale . Accordingly, the absence of ministerial consent did
not then, and does not now, serve as a bar to registration of transfer as sought by
the Applicant on the strength of rights arising from the deed of sale.

[18] On 13 October 2023, EF & Co sent a formal letter of demand to the First
Respondent in terms of clause 10.2 of the deed of sale. In terms of th at demand, the
Applicant insisted on registration of transfer of the property into his name pursuant to
the deed of sale . On 30 November 2023, the First Respondent replied . He recorded
his refusal to effect transfer. In his reply, no mention was made about prescription.

[19] The First Respondent’s refusal to comply with the terms of the Applicant’s
demand for transfer culminated in th is application being launched in early January
2024. In his answering affidavit, the First Respondent averred, inter alia, that the
Applicant’s claim for transfer lapsed through the operation of extinctive prescription.

Submissions by the parties’ counsel

[20] Applicant’s counsel , Mr Karuaihe contended that although the Applicant’s

[20] Applicant’s counsel , Mr Karuaihe contended that although the Applicant’s
claim for transfer constitutes a debt that is subject to the Prescription Act,
prescription has not commenced (“the primary argument ”). Mr Karuaihe argued , in
the alternative, that while prescription may have commenced once the deed of sale

was entered into, its progression was subsequently interrupted and/or had not been
finalised by the time this application was launched on 12 January 2024 and was
served on 24 January 2024 (“the secondary argument”).

[21] The primary argument is predicated on the submission that prescription would
only begin to run once the First Respondent ’s debt to the Bank, being the Fourth
Respondent, is settled in full by the end of the loan term, which debt is secured by
the mortgage bond mentioned in clause 2.3 of the deed of sale. Mr Karuaihe
submitted that compliance by the First Respondent with his financial obligation to the
Bank by the end of the loan term is a pre -requisite for the Applicant’s entitlement to
enforce his claim for tr ansfer. Although the loan period was unclear on the papers,
counsel for both parties were ad idem that the loan term had not yet elapsed. The
First Respondent was still servicing that debt to the Bank by way of monthly
instalments.

[22] Mr Karuaihe argued that the settlement of the term loan debt, which is
secured by the mortgage bond registered over the entire property, is a condition
precedent for the transfer of the property as outlined in clause 4 of the deed of sale .
Therefore, the Applicant is precluded from demanding settlement of that debt, and
has been so precluded at all times material since the date of execution of the deed of
sale. Mr Karuaihe submitted that, f or this reason, the Applicant had not demanded
settlement of the debt t o the Bank , which would allow for cancellation of the
mortgage bond and registration of transfer into his name.

[23] In the alternative, Mr Karuaihe submitted that, in accordance with s 14 (1) of
the Prescription Act, prescription was interrupted by each and every payment made
by the Applicant to the local authority pursuant to clause 6 of the deed of sale. Mr
Karuaihe submitted that , based on this reasoning , the running of prescription was

Karuaihe submitted that , based on this reasoning , the running of prescription was
interrupted until 18 Februar y 2021, being the date of the Applicant’s last payment to
the Stellenbosch municipality. He argued that since the application was launched
and served on the First Respondent within three years from that last payment date,
Applicant’s claim has not prescribed and is still extant and enforceable in law.

[24] Mr Karuaihe also relied on s 13(2) of the Prescription Act. With reference to
Botha and Another v Rich NO and Others 2014 (4) SA 124 (CC) para 43, h e
submitted that clause 6 of the deed of sale created reciprocal obligations for himself
and the First Respondent regarding the arrear local authority debts levied on the
property. He argued that the First Respondent’s debt to the local municipality had
not prescribed by the time when this application was launched on 12 January 2024
and served on 24 January 2024. Consequently, so he argued, the First Respondent
acknowledged his liability , which meant t hat the prescription could not have been
completed.

[25] The First Respondent's attorney, Mr Vorster SC, cited Blaauwberg Meat
Wholesalers CC v Anglo Dutch Meats (Exports) Ltd 2004 (3) SA 160 (SCA) and
Road Accident Fund and Others v Mdeyide 2011 (2) SA 26 (CC) to argue that the
Applicant's claim for property transfer is a ’debt’ under the Prescription Act which has
prescribed because of his inaction, which lasted for more than three years. He
contended that the inaction was Applicant’s failure to take steps timeously to enforce
his transfer claim.

[26] Mr Vorster SC pointed to Applicant’s failure to demand performance of the
First Respondent’s financial obligations imposed by the deed of sale . This includes,
but is not limited to, payment of the arrear municipal charges and settlement of the
debt owed to the Bank so that the mortgage bond could be cancelled and transfer
effected. Mr Vorster SC argued, relying on Uitenhage Municipality v Molloy 1998 (2)
SA 735 (SCA) at 742E - 743C, that the Applicant’s failure for more than 9 years to
use clause 10.2 of the deed of sale to demand performance of the First
Respondent’s obligations under the deed of sale and to sue for transfer renders the
claim for transfer prescribed.

Discussion of the relevant prescription principles and their application in casu

Discussion of the relevant prescription principles and their application in casu

[27] The defence of prescription places an evidential burden on the party raising it.
Thus, the First Respondent must prove that Applicant’s claim is extinguished by the
lapse of a time period imposed by s 11 of the Prescription Act. See Mcleod v

Kweyiya 2013 (6) SA 1 (SCA) para 10. Accordingly, the First Respondent must
establish that the Applicant failed to meet the standard of diligence required by s
12(3) of the Prescription Act. If a prima facie case for prescription is proved, then the
onus shifts to the Applicant. See Grimbeek v Jacobo (922/2017) [2018] ZASCA 131
(27 September 2018) para 21.

[28] As appears from my summary of counsels ’ submissions, a key issue to be
resolved is whether prescription has begun to run. This is the subject of s 12 of the
Prescription Act. Accordingly, it is necessary to quote th is provision so far as it is
relevant to this application. Section 12(3) reads:

‘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.’

[29] Based on s 12(3), prescription begins to run as soon as a ‘debt’ becomes
‘due’, or when knowledge of the debt becoming due can reasonably be expected of a
creditor. Prescription is judicially interrupted when a process initiating a lawsuit for
the recovery of a debt is issued, whether by summons or application, and served on
a debtor. In the case of breach of contract, a creditor’s remedy is either to cancel a
contract and claim damages; or to keep the contract alive and claim specific
performance (as in this case). See Rademeyer v Ferreira 2025 (2) SA 1 (CC) para
59.

[30] For purposes of s 12(3), the Applicant is ‘the creditor’; First Respondent is ‘the
debtor’. For the purposes of the Prescription Act, the term ‘debt’ is undefined. This
term has, however, been the subject of judicial interpretation as to its import . See
Off-Beat Holiday Club and Another v Sanbonani Holiday S pa Shareblock Ltd and
Others 2017 (5) SA 9 (CC) paras 43 - 44; Lotter and Another v Lona Fruit Cape (Pty)

Others 2017 (5) SA 9 (CC) paras 43 - 44; Lotter and Another v Lona Fruit Cape (Pty)
Ltd and Another (19818/23) [2025] ZAWCHC 196 (12 May 2025) paras 59 - 60.

[31] In casu, the Applicant is owed a ‘debt’ as envisaged by s 12(3), namely, a
contractual duty by the First Respondent to transfer the property, being an obligation

to deliver corporeal goods in the form of immovable property. See Ethekwini
Municipality v Mounthaven (Pty) Ltd 2019 (4) SA 394 (CC) para 8. This is
uncontroversial. While it is trite that a ‘debt’ under the Prescription Act includes an
obligation arising from a contract for specific performance ( Tsie v Brenner and
Others 2024 JDR 1130 (GJ) para 29), the issue arising is: when does such a claim
fall due?

[32] In Trinity Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd
2018 (1) SA 94 (CC) para 47, the apex court held as follows:

‘In sum, the relevant principles may, in my view, be restated as follows. A
contractual debt becomes due as per the terms of that contract. When no due
date is specified, the debt is generally due immediately on conclusion of the
contract. However, the part ies may intend that the creditor be entitled to
determine the time for performance, and that the debt becomes due only
when demand has been made as agreed. Where there is such a clear and
unequivocal intention, the demand will be a condition precedent to claimability,
a necessary part of the creditor's cause of action, and prescription will begin to
run only from demand…’ (my emphasis added)

[33] In casu, t he deed of sale does not specify an exact date when the First
Respondent is obliged to give registration of transfer and Applicant is entitled to
receive transfer. Since the contract is silent on when performance is due, it must be
regarded as due on the date of the conclusion of the deed of sale, unless ‘a clear
and unequivocal intention’ appears from its terms to the effect that transfer only
becomes due once demand for it is made.

[34] The contract must be construed in order to ascertain if such an intention
applies in this case. Contractual i nterpretation entails a unitary exercise (not a
process occurring in stages) in which proper consideration is given to the objective
content of the document being construed. Concerning commercial contracts, as with

content of the document being construed. Concerning commercial contracts, as with
the deed of sale in casu, the provisions of the con tract are to be given a sensible,
business-like meaning which is appropriate in their commercial context so as to best
give effect to the underlying purpose of the parties’ agreement. See Natal Joint

Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593 (SCA) paras 18 -
22.

[35] As a result, the content of the deed of sale related to the alienation of
agricultural land, its broader context, and purpose must be understood to determine
when transfer became due and enforceable. Although clause 4 does not indicate a
specific date for transfer, it indicates the timing thereof, namely, ‘[t]ransfer … shall be
given and taken upon the PURCHASER and SELLER having complied with Clause
2.1, 2.2, 2.3, 2.4, 2.5 and 3 thereof’.

[36] Clause 4 read in conjunction with clauses 2 and 3 are couched in a way that
renders the timing of compliance with the duties in these clauses to be immediate, in
the sense that the duties are to be performed immediately after signature, failing
which the remedy in clause 10 may be invoked by the innocent party. Accordingly, I
find that ‘the debt’ owed to Applicant (that is, transfer of the property) became ‘due’
immediately on 25 July 2014 (subject to compliance with clauses 2.1 to 2.5 and 3,
which obligations were immediately due). A contrary intention does not appear
clearly and unequivocally. Therefore, the Applicant was entitled to enforce his right to
transfer as far back as the 2014 calendar year (see further the discussion under the
next heading).

[37] Even if the deed of sale were interpreted as rendering the duty to pass
transfer as becoming ‘due’ within a reasonable time (not immediately) from the
execution of the contract on 25 July 2014, then I hold that th e Applicant still delayed
pursuing his claim more than three years beyond any date which would, in the
circumstances, qualify as a ‘reasonable time’ computed the date of execution of the
deed of sale. See Tsie v Brenner supra para 34.

[38] These factual considerations all align neatly with the decision in Drennan
Maud & Partners v Pennington Town Board 1998 (3) SA 200 (SCA) at 290H -I in
relation to the exercise of ‘reasonable care’ as required of a diligent creditor by s

relation to the exercise of ‘reasonable care’ as required of a diligent creditor by s
12(3) of the Prescription Act. In that case, the SCA held:

'In my view, the requirement "exercising reasonable care" requires diligence
not only in the ascertainment of the facts underlying the debt, but also in
relation to the evaluation and significance of those facts. This means that the
creditor is deemed to have the requisite knowledge if a reasonable person in
his position would have deduced the identity of the debtor and the facts from
which the debt arises.'

[39] The applicant also possessed all the necessary information to enforce his
claim at all relevant points in time after the deed of sale was completed . T he
Applicant knew the identity of the party liable to give him transfer of the property ,
namely, the First Respondent. He knew the First Respondent – they had prior
dealings with one another and they negotiated the terms of the contract directly with
each other.

[40] The Applicant knew that his claim for transfer of the property arose from the
deed of sale. As a result, he admits to making payment in terms of clauses 2.1, 2.4,
6.1, and 23 in compliance with his financial obligations for purposes of transfer under
clause 4. All these facts enabled the Applicant to timeously demand performance
from the First Re spondent and to take legal action, whether immediately after the
deed of sale was concluded , or within a reasonable time thereafter. He failed to do
so promptly, resulting in prescription running its course.

[41] On 1 February 2021, t he Applicant made an informal request to the First
Respondent for transfer of the property . He formally did so in October 2023 under
clause 10.2 of the deed of sale by way of a demand . This application was launched
on 12 January 2024 and served on 24 January 2024. These facts demonstrate that
the Applicant knew his debtor’s identity, and he knew his debtor’s whereabouts, and
he knew of his right to claim transfer of the property.

[42] Accordingly, at all material times, it was well within the Applican t’s control to

[42] Accordingly, at all material times, it was well within the Applican t’s control to
demand performance from the First Respondent timeously , and to institute legal
proceedings promptly. He neglected to judicially interrupt prescription within the
legislated three-year period in s 11(d) of the Prescription Act computed from the date
when the Applicant’s claim for transfer became due under the deed of sale.

[43] The Applicant’s failure to timeously demand transfer of the property and to
timeously enforce his right to transfer by way of legal proceedings constitute inaction
on his part which, in the context of this case, is negligent (not innocent). His lack of
diligence and failure to exercise reasonable care has consequences under the law.

[44] I find that the First Respondent proved , on a prima facie basis, that the
Applicant’s claim for transfer of the property prescribed after the lapse of th ree years
computed from the date when the ‘debt’ concerned fell ‘due’ under the deed of sale ,
irrespective whether that date is computed as being immediately after the execution
of the contract concerned (as I have found was applicable in casu) , or within a
reasonable time after the execution thereof on 25 July 2014 (if the alternative
reasonable time standard were to be applicable and is applied).

[45] The Applicant procrastinated. He demanded transfer late in 2023 and
launched this application early in 2024, being almost a decade after his claim fell
due. This is an inordinate delay. The Applicant failed to pursue his claim for transfer
of the property with the level of expedition and diligence required of a creditor
exercising reasonable care. The rationale underpinning the operation of the principle
of extinctive prescription was aptly explained by the apex court in RAF v
Mdeyide supra in the following terms:

‘This Court has repeatedly emphasised the vital role time limits play in
bringing certainty and stability to social and legal affairs and maintaining the
quality of adjudication. Without prescription periods, legal disputes would have
the potential to be drawn out for indefinite periods of time, bringing about
prolonged uncertainty to the parties to the dispute. The quality of adjudication
by courts is likely to suffer as time passes, because evidence may have
become lost, witnesses may no longer be able to testify, or their recollection of

become lost, witnesses may no longer be able to testify, or their recollection of
events may have faded. The qua lity of adjudication is central to the rule of
law.' (para 8)

[46] For all the foregoing reasons, I find that the defence of prescription ought to
succeed, unless I am able to find merit in any of the arguments advanced by Mr
Karuaihe on the Applicant’s behalf. It is to this question that I now turn my attention.

Evaluation of the Applicant’s case against prescription

[47] Paragraphs [20] through [21] above provide an outline of Mr Karuaihe's
primary argument. Its effect is that the running of prescription is postponed until the
date when the First Respondent settles his loan debt with the Bank by the end of the
loan period as agreed to between the Bank and the First Respondent . Prior to that
date, so the argument proceeded, the ‘debt’ owed to the Applicant by the First
Respondent is n ot due. For the reasons advanced hereunder, I find that t his
argument is predicated on an un tenable interpretation of the deed of sale. In my
view, Mr Karuaihe’s interpretation is both factually unsound and destructive , as a
matter of law, of the Applicant’s case for an order to compel transfer of the property.

[48] If, as a matter of fact and law, the Applicant’s right to claim transfer is
dependent on the First Respondent ’s fixed term loan with the Bank being settled in
full at its expiration, then logic and common sense dictate that the application to
compel registration of transfer is premature and, therefore, doomed. This would be
so bec ause it is common cause that the fixed term loan giving rise to the First
Respondent’s secured debt to the Bank has not yet expired; nor has the underlying
debt to the Bank been settled.

[49] Accordingly, based on Mr Karuaihe's main contention, the Applicant would not
currently have an enforceable right to assert transfer. But, in my view, a correct
interpretation of the deed of sale inevitably leads to the conclusion that the
Applicant's right to demand the transfer of the property is independent of the
settlement of the underlying loan debt owed to the Bank at the conclusion of the term
loan period.

loan period.

[50] Mr Karuaihe was constrained to concede that there is no express provision in
the deed of sale which renders the Applicant’s right to claim transfe r suspended or
postponed until the term loan between the Bank and the First Respondent is settled

at the end of the loan period. Mr Karuaihe was unable to identify any clause in the
deed of sale that can be construed as supporting the claim he made, despite my
inquiry during the hearing. As a result, Mr Karuaihe’s primary argument is not
grounded in a proper interpretation of the deed of sale and must fail.

[51] The loan agreement underlying the mortgage bond and the date on which the
last instalment of the underlying loan is due to be paid to the Bank are not mentioned
in the deed of sale. Clause 2.3 merely records the existence of a mortgage bond in
favour of the Bank and the balance ’outstanding’ at 25 July 2014, being
’approximately R277 000.00 ’. These are significant objective considerations which
emerge from the deed of sale and they are relevant to its interpretation.

[52] The objective factors mentioned here bolster my interpretation, and concomitant
view, that the deed of sale envisages the stock standard, customary requirement that
the seller, who is the First Respondent , must settle his indebtedness to the
bondholder, who is the Bank, by no later than the date of registration of transfer so
that ownership of the property can b e given to the Applicant , as purchaser, without
any encumbrance in favour of the Bank . This intention underpins the deed of sale ,
and is consistent with the underl ying purpose of th at agreement, namely, to pass
ownership to the Applicant of an undivided share in certain agricultural land situate in
Stellenbosch, Western Cape.

[53] If the intention of the contracting parties was to postpone the Applicant’s right
to receive and to claim transfer of the property only after the term loan between the
Bank and th e First Respondent is settled at the end of its loan period , then it can
reasonably be expected of them to state so clearly in the deed of sale. The absence
of an express provision indicating such an unequivocal intention speaks volumes.

[54] Mr Karuaihe’s argument also flies in the face of the Applicant’s pleaded

[54] Mr Karuaihe’s argument also flies in the face of the Applicant’s pleaded
position. If the Applicant believed that the bargain he made with the First Respondent
was along the lines contended for by Mr Karuaihe , then it m akes no sense that the
Applicant took informal steps in February 2021 to procure transfer, and took formal
steps in October 2023 by demanding transfer, and then finally suing for transfer in
January 2024.

[55] It does not make business sense for the Applicant to pay the full purchase
price (as stated in clause 2.1) and give the First Respondent money from the sale
price to cancel the foreclosure sale (as stated in clause 23), then delay his right to
claim transfer until an unspecified future date that is not recorded at all, given the
provisions recorded in the deed of sale and the goal which the Applicants intends to
achieve (namely, to take transfer of a half -share in agricultural land within
Stellenbosch).

[56] For all the foregoing reasons, I reject Mr Karuaihe’s primary argument. It does
not overcome the prescription defence pleaded in the answering papers . I now
consider Mr Karuaihe’s alternative argument, being that the running of prescription
was not completed by virtue of s 13(2) of the Prescription Act, or that prescription
was interrupted as envisaged b y s 14(1) thereof. For present purposes, th ese
provisions are now quoted in full.

[57] Sections 13(2) and 14(1) read as follows:

‘13. Completion of prescription delayed in certain circumstances.— …
(2) A debt which arises from a contract and which would, but for the
provisions of this subsection, become prescribed before a reciprocal debt
which arises from the same contract becomes prescribed, shall not become
prescribed before the reciprocal debt becomes prescribed. …
14. Interruption of prescription by acknowledgement of liability. —
(1) The running of prescription shall be interrupted by an express or tacit
acknowledgement of liability by the debtor.’

[58] Section 13(2) does not prevent the running of prescription in any instance. As
is evident from the heading to s 13 and s 13(2)’s contents itself, s 13(2) operates to
prevent the completion of prescription : ‘it serves merely to prevent prescription from
taking its toll when the appropriate period has elapsed if there then happens to be in
existence a reciprocal debt which is not yet prescribed’ (Minister of Public Works and

existence a reciprocal debt which is not yet prescribed’ (Minister of Public Works and
Land Affairs and Another v Group Five Building Ltd 1996 (4) SA 280 (A) at 288C).

[59] In casu, the three-year prescription period envisaged by s 11( d) has elapsed.
Section 13(2) would only operate to prevent prescription from taking effect (‘taking its
toll’) if the Applicant establishes that, arising from the deed of sale, there is, vis-a-vis-
himself and the First Respondent, a ‘reciprocal debt which is not yet prescribed’.

[60] In a contract, a reciprocal obligation is a performance owed by one
contracting party to another in circumstances where the latter contracting party
undertakes a counter-performance in exchange for a performance received. See Ese
Financial Services (Pty) Ltd v Cramer 1973 (2) SA 805 (C) at 809D. A reciprocal duty
between contracting parties in the sense explained here creates the kind of
‘reciprocal debt’ within the meaning of this term in the context of s 13(2) of the
Prescription Act.

[61] The following dictum in Minister of Public Works and Land Affairs v Group
Five Building supra at 288 D usefully expounds on the notion of reciprocal debts in
contract:

‘Reciprocity of debt in law does not exist merely because the obligations
which are claimed to be reciprocal arise from the same contract and each
party is indebted in some way to the other . A far closer, and more immediate
correlation than that is required.’

[62] For purposes of s 13(2), Mr Karuaihe relies on the duties arising from clauses
6.1 and 6.2 of the deed of sale (read with clause 2.4). He argues that the liability to
the Stellenbosch municipality for arrear rates , taxes, and other local authority
charges is a ‘reciprocal debt’ to which s 13(2) of the Prescripti on Act applies. I
disagree.

[63] The deed of sale is a bilateral contract. In terms of clause s 6.1 and 6.2 , the
obligation to pay the arrear municipal charges is a joint debt of the Applicant and the
First Respondent. The Applicant, as purchaser, and Firs t Respondent, as seller and
property owner, agreed to be jointly liable to pay the arrear charges to the

property owner, agreed to be jointly liable to pay the arrear charges to the
Stellenbosch municipality . This is not a reciprocal obligation which the one
contractant owes to the other . Therefore, the contractual duty resting on Applicant

and the First Respondent to contribute to the settlement of the arrear municipal
account is not a ‘reciprocal debt’ within the meaning and contemplation of s 13(2) of
the Prescription Act.

[64] Concerning s 14(1) of the Prescription Act, Mr Karuaihe contends that the
Applicant’s payments to the Stellenbosch municipality during the period 2016 to
2021 interrupted the running of prescription . I disagree. It is inconceivable that the
First Respondent, either explicitly or implicitly, acknowledged a liability owed by him,
as debtor, to the Applicant, as creditor, resulting from the deed of sale, based on the
Applicants' numerous payments to the local authority over the course of five years
totalling R 20 570,000, both on an individual and collective payment basis. In this
regard, I also agree with Mr Vorster SC who pointed out that the pleadings are
devoid of an iota of evidence which indicate that the First Respondent was even
aware that the Applicant made the various payment relied on by Mr Karuaihe for
purposes of this argument rooted in s 14(1) of the Prescription Act.

[65] For all these reasons, the Applicant has failed to establish facts from which it
may be justifiably found that s 13(2) or s 14 (1) of the Prescription Act finds
application.

Costs

[66] There is no reason why costs ought not to follow the result. At the hearing, the
debate was on the scale to be ordered for counsel’s fees. Mr Vorster SC contended
that Scale C ought to be used because he is a silk and a costs’ creditor ought not to
be unnecessarily out of pocket with counsel’s fees. Mr Karuaihe , on the other hand,
contended that Scale B was more appropriate in the circumstances of this case. He
argued that the issues at stake in the application viewed as a whole were not
complex at all, or that any complexity it may have was not of such a nature as to
warrant senior counsel. I agree.

[67] The First Respondent litigated in luxury by appointing a silk , and then too

[67] The First Respondent litigated in luxury by appointing a silk , and then too
appointing one from another Province, thereby increasing his costs even further. This
matter was relatively uncomplicated: it concerned a run -of-the mill application to

enforce compliance with the prov isions of a deed of alienation concerning certain
land. On the pleadings read as a whole, t here were no issues raised which were of
such high complexity that it required the forensic skills or other expertise which a
senior counsel ordinarily brings to bear on a matter.

[68] It would be unreasonable if the Applicant were saddled with increased party-
and-party costs which could have been reduced by the First Respondent appointing
a suitably experienced junior counsel. Speaking proverbially, litigants ought to
choose the right horse for the right course. This was not done here. In the
circumstances, counsel’s fees shall be allowed on tariff scale B.

Order

[69] In the result, the following order is made:

[69.1] The application is dismissed with costs. Counsel’s fees are allowed on
scale B.


_____________________
F. MOOSA
ACTING JUDGE OF THE HIGH COURT


Appearances

For Applicant: JRS Karuaihe
Instructed by: JJV Attorneys Inc

For First Respondent: J Vorster SC
Instructed by: Faure & Faure Attorneys (Mr L Fortuin)