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IN THE HIGH COURT OF SOUTH AFRICA
(WESTERN CAPE DIVISION, CAPE TOWN)
Reportable
Case No.: 17670/2024
In the matter between:
A[...] F[...] D[...] Applicant
and
C[...] C[...] D[...] First Respondent
FIRST NATIONAL BANK Second Respondent
Coram: Francis J
Heard: 25 March 2026
Delivered: 16 April 2026
__________________________________________________________________
ORDER
__________________________________________________________________
1. The non -compliance with the time limits for the filing of the first
respondent's answering affidavit is condoned.
2. The first respondent's counter-claim for specific performance under the deed
of sale dated 14 January 2011 is dismissed on the ground of prescription.
3. The remaining issues in the main application are postponed for
determination in the further proceedings to be arranged with the Registrar.
4. Each party shall bear their own costs in respect of the preliminary issues
argued and determined in this judgment.
__________________________________________________________________
JUDGMENT
____________________________________________________________________________________
FRANCIS, J:
Introduction
[1] This matter concerns the fate of a former matrimonial home. The walls of 1[…]
M[...] Street, Athlone, have borne witness to decades of family life, and now, long
after the traces of that life have faded, they contain only the stark contest of legal
principle between the applicant, Mr A[...] D[...] (‘A[...]’), and the first respondent,
Ms C[...] D[...] (‘C[...]’).
[2] A[...] approaches this court by way of the actio communi dividundo, seeking the
sale of the property and an equal division of the proceeds. C[...] resists this, and in
her answering affidavit, she mounts a counter-claim for specific performance. She
relies on a Deed of Sale dated 14 January 2011, which she alleges entitles her to
acquire A[...]'s half-share of the property for no cash consideration.
[3] A[...] raises three preliminary objections against this counter-claim. He
contends the answering affidavit was filed out of time without condonation; that
the counter-claim is procedurally irregular for want of a separate notice of motion;
and, most pivotally, that the claim has prescribed under the Prescription Act 68 of
1969. He also makes the serious allegation that his signature on the 2011 Deed is a
forgery.
[4] The matter has a complex procedural history, having been referred for the
hearing of oral evidence on the main actio application. However, at the court's
direction, the parties have argued the preliminary issues relating to the
sustainability of the counter-claim as discrete and potentially dispositive.
[5] Having carefully considered the papers and the helpful supplementary heads of
argument filed by both counsel, I have come to the firm conclusion that the
counter-claim cannot survive the plea of prescription. I therefore do not deem it
necessary to resolve the factual dispute regarding the authenticity of the signature
on the Deed of Sale. For the purpose of testing the legal viability of C[...]'s claim, I
will assume, without deciding, that the Deed of Sale is valid and binding. As will
become apparent, even under the benevolent light of that assumption, the claim is
extinguished by the unceasing march of time.
The procedural objections
[6] Before turning to the substance of prescription, I must address the two
procedural hurdles raised by A[...]. While I find they do not bar the consideration
of the counter-claim, they warrant a more in-depth examination than a mere
cursory nod.
(a) The late filing of the answering affidavit
[7] It is common cause that the answering affidavit, containing the counter-claim,
was filed significantly out of time. A draft order of 4 September 2024 required
filing by 14 September 2024. The affidavit was not filed in its complete form until
19 February 2025, some five months later. Compounding this lapse, C[...] did not
file a formal application for condonation for this non-compliance.
[8] Mr Filton, for A[...], urges me to disregard the affidavit entirely. He points to
the principle that a party that flouts a court order without explanation acts mala
fide and should not be heard.
[9] The power of this court to condone non-compliance with its rules or orders is a
judicial discretion to be exercised upon a consideration of all the relevant facts.
The guiding light remains the classic formulation in Melane v Santam Insurance
Co Ltd 1962 (4) SA 531 (A), where it was held that the court must be satisfied that
"good cause" has been shown. This involves considering the degree of lateness, the
explanation provided, the prospects of success on the merits, and the importance of
the case.
[10] I have two primary reasons for exercising my discretion in favour of C[...] on
this point, despite the record's unsatisfactory state.
{i) First, there is a clear absence of prejudice to A[...]. He was able to file a
comprehensive and robust replying affidavit that addresses the counter-claim on its
substantive merits, including a detailed plea of prescription and an allegation of
forgery. The purpose of procedural rules is to ensure a fair trial, not to create traps
for unwary litigants. The delay did not hamper A[...]'s ability to meet the case
against him.
(ii) Second, I cannot ignore the realities of this litigation. C[...] is an unemployed
woman who was initially unrepresented. The record reflects that Legal Aid South
Africa subsequently came on record for her. While this does not excuse non-
compliance with a court order, it offers context for the procedural disarray. The
issues at stake—the potential loss of a home and a claim to property—are of great
significance. To shut the door on C[...]'s defence and counter-claim on this ground
alone, especially where the opposing party has suffered no demonstrable trial
prejudice, would be a disproportionate response and would not serve the interests
of justice.
[11] Accordingly, the non-compliance with the time limits is condoned.
(b) The failure to launch a formal counter-application
[12] A[...]'s second objection is that C[...]'s prayer for specific performance is not
properly before the court because it was not accompanied by a separate notice of
motion. He argues that all applications must comply with Rule 6(1) of the
Uniform Rules of Court.
[13] With respect, this argument misapprehends the nature of motion proceedings.
The mechanism for a counter-application in motion proceedings is governed
specifically by Rule 6(7). It provides that a party may bring a counter-application
"to the same extent as would be competent if the party wishing to bring such
counter-application... were a defendant in an action." The Rule does not require a
separate notice of motion. The vehicle for the counter-application is the answering
affidavit itself.
[14] The commentary in Erasmus Superior Court Practice (RS 21, 2023, D1-82)
stats that a notice of motion is not necessary for a counter-application. In my view,
the relief is set out in the answering affidavit and the notice of motion in the main
application will serve as the vehicle for the counter-application. This practice has
been affirmed in numerous cases, including Costa v Korte and Another [2022]
ZAGPJHC 1037.
[15] The purpose of pleading is to define the issues. In her answering affidavit,
C[...] clearly set out the relief she seeks: rectification of the Deed of Sale and an
order for specific performance directing A[...] to take all steps necessary to transfer
his half-share. A[...] knew precisely what case he had to meet, and he met it
directly in his replying affidavit. There is no irregularity. This point is dismissed.
Prescription: the extinction of the claim
[16] I now turn to the real substance of the matter: has C[...]'s claim for transfer of
the property prescribed?
[17] It is an established and venerable principle of our law that a claim for the
transfer of immovable property constitutes a “debt” as contemplated in the
Prescription Act. This was authoritatively settled by the Appellate Division in
Desai NO v Desai 1996 (1) SA 141 (A) and reaffirmed by the Constitutional Court
in eThekwini Municipality v Mounthaven (Pty) Ltd [2018] ZACC 43 at paragraph
[8], where the court stated: "A claim to transfer immovable property in the name of
another is thus a claim to perform an obligation to deliver goods in the form of
immovable property. It is a “debt”..."
[18] Section 11(d) of the Prescription Act provides that a debt is extinguished by
prescription after a period of three years. The critical question is always: when did
this three-year period commence? Section 12(1) provides the answer: prescription
commences to run "as soon as the debt is due."
[19] The principles for determining the due date of a contractual debt were
succinctly summarised by the Constitutional Court in Trinity Asset Management
(Pty) Ltd v Grindstone Inv 132 (Pty) Ltd 2018 (1) SA 94 (CC) at paragraph [47]:
"A contractual debt becomes due as per the terms of the contract. When no due
date is specified, the debt is generally due immediately on conclusion of the
contract”.
[20] The Supreme Court of Appeal applied this very reasoning in a property
transfer context in Frieslaar NO v Ackerman [2017] ZASCA 03 (2 February
2018). In that case, the SCA held that, on proper construction of the agreement,
there was an unconditional obligation to transfer, and, because no date was
specified, the debt became due immediately upon signing the contract.
[21] Applying these principles to the Deed of Sale before me, Clause 6 states:
"Transfer of the property in the name of the Purchaser shall be attended to by the
Seller's transferring attorneys, Vorster & Brant. The Purchaser shall pay all
transfer costs of this agreement to the said transferring attorneys upon demand."
[22] There is no specified date for transfer. There is no suspensive condition that
suspends the obligation to transfer until the bond is paid off. The phrase "upon
demand" qualifies only the Purchaser's (C[...]'s) obligation to pay the transfer costs.
It does not, on a plain and grammatical reading, qualify the Seller's (A[...]'s)
antecedent and primary obligation to attend to the transfer of the property.
[23] Mr Nduli argued thoughtfully that this cannot be what the parties really
intended. He pointed out that in 2011, there was still a substantial mortgage bond
over the property. It would have been impossible, in practise, to register the
transfer while that bond was in place. He says the parties must have intended for
the obligation to become due only once the bond was paid up and the transferring
attorneys issued a demand for costs.
[24] I have some sympathy for this view. It seems unlikely that the parties, as
laypeople, contemplated that prescription would start running while a bond
prevented any actual transfer. But the law does not always correspond with the
unexpressed, subjective intentions of contracting parties. A practical obstacle to the
fulfilment of an obligation does not, as a matter of legal principle, delay the due
date of that obligation. The right to claim performance (the debitum) existed from
the day the agreement was signed. In 2011, C[...] could have demanded that A[...]
instruct his attorneys to begin preparing for transfer, even if the final registration
had to wait.
[25] But I do not need to rest my decision on that strict interpretation alone. Even if
I give C[...] the full benefit of the doubt, the result is the same. Even if I accept that
the debt could not become due until the practical bar of the mortgage bond was
lifted, the facts are against her. The bank statements in the record show, beyond
any doubt, that the bond was paid in full and closed on 28 February 2019.
[26] From that moment onwards, there was nothing—not a legal bar, not a practical
hurdle—standing in the way of C[...] demanding that A[...] take steps to transfer
his half-share. If the debt was not due before, it was certainly due on 28 February
2019. The three-year clock began to tick on that day. It ran out, quietly and finally,
on 28 February 2022.
[27] C[...] only asserted her claim for specific performance in her answering
affidavit filed in February 2025. That is nearly three full years too late. Whether
one calculates the prescription from the date of signature in 2011 (expiring in
2014) or from the settlement of the bond in 2019 (expiring in 2022), the claim is
extinguished.
[28] There is one final argument I must address. It was suggested that, because the
transferring attorneys never issued a demand for the transfer costs, the debt never
became due. I cannot accept this. To do so would mean that A[...], by simply
instructing his nominated attorneys to remain silent, could indefinitely postpone
the running of prescription and keep C[...]’s claim in a state of perpetual legal
suspension. That is not how the law works. The purpose of extinctive prescription
is to bring certainty and finality. A construction of the contract that allows one
party to control the accrual of the other's cause of action in that way is not one that
commends itself.
[29] For these reasons, I uphold the plea of prescription. The counter-claim for
specific performance, founded upon the Deed of Sale of 14 January 2011, is
dismissed.
The remaining issues and costs
[30] My finding on prescription renders it unnecessary to determine the remaining
disputes regarding the validity of the Deed of Sale, the allegation of forgery, or the
enforceability of the agreement in light of the 2004 Divorce Order. Those issues
remain to be ventilated, should it become necessary, in the context of the main
application for the actio communi dividundo.
[31] In the exercise of my discretion on costs for this preliminary phase, I note that
A[...] succeeded on the decisive, substantive issue of prescription, but failed in his
procedural objections regarding the filing of the affidavit and the form of the
counter-claim. Conversely, C[...] successfully resisted the procedural attacks but
failed on the point that determines the fate of her counter-claim. In these
circumstances, I consider it just and equitable that each party bear their own costs
for this portion of the proceedings.
Order
[34] I make the following order:
1. The non-compliance with the time limits for the filing of the First Respondent's
answering affidavit is condoned.
2. The First Respondent's counter-claim for specific performance under the Deed
of Sale dated 14 January 2011 is dismissed on the ground of prescription.
3. The remaining issues in the main application are postponed for determination in
the further proceedings to be arranged with the Registrar.
4. Each party shall bear their own costs in respect of the preliminary issues argued
and determined in this judgment.
____________________
M FRANCIS
Judge of the High Court
Appearances:
For Applicant: Adv Mark Filton
Instructed by: L Boer Attorneys
For Respondent: Mr Bonginkosi Nduli
Instructed by Legal Aid SA