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REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG DIVISION, PRETORIA
CASE NO: 70124/2018
In the matter between:
LISACRAFT (PTY) LTD Plaintiff
and
SUPERSTRIKE INVESTMENTS 37 (PTY) LTD First Defendant
BODY CORPORATE OF UNIPARK Second Defendant
HUURKOR ADMIN (PTY) LTD Third Defendant
This judgment is prepared and authored by the Judge whose name is reflected as
such and is handed down electronically by circulation to the parties/their legal
representatives by email and by uploading it to the electronic file of this matter on
CaseLines. The date for handing down is deemed to be 8 June 2026.
JUDGMENT
(1) REPORTABLE: NO
(2) OF INTEREST TO OTHER JUDGES: NO
(3) REVISED: YES
DATE 08/06/2026
SIGNATURE
Pauer AJ
Introduction
[1] This action relates to the enforcement of an agreement of sale (“the
agreement”) concluded between the plaintiff and the first defendant on 19 January
2015 in terms of which the plaintiff purchased thirty-seven sectional units at the
Unipark sectional title scheme (“the Units”) from the first defendant. The purchase
price of R 20 200 000 (twenty million two hundred thousand rand) is payable on the
date of transfer of the Units from the first defendant to the plaintiff. In terms of the
provisions of the agreement, the first defendant warranted that the Units had been
built in accordance with fully approved building plans and complied with all provincial
and local authority requirements affecting them or relating to them, and that the first
defendant had not been called upon to make any alteration, repairs , or additions to
the Units.
[2] The first defendant raised two special pleas in limine, namely that the matter
is res judicata and that the claim has prescribed in terms of the Prescription Act 1
(“the Act”).
[3] The parties agreed pursuant to rule 33(4) of the Uniform Rules of Court that
the two special pleas be adjudicated prior to and separately from the remaining
issues, and these were the issues before me for adjudication.
Previous litigation
[4] To give context to the primary relief the plaintiff is seeking in the particulars of
claim, it is necessary to briefly set out the relevant litigation history.
[5] On 20 October 2015, the second defendant approached the urgent court and
obtained an order against the first - and third defendants. In terms of the order
issued by Mabuse J (“Mabuse J’s order”), the first defendant had to perform certain
demolition work and thereafter restore ten of the Units to be in accordance with the
sectional title plans. Mabuse J’s order further interdicted the first defendant from
proceeding with the sale of any of the Units until such time as the ten sectional title
1 Act 68 of 1969.
Units in issue complied with the National Building Regulations and Building
Standards Act. Lastly, Mabuse J’s order also interdicted the third defendant from
issuing clearance figures unless and until such time as there had been proper
approval and compliance with the provisions of the National Building Regulations
and Building Standards Act.
[6] The first defendant failed to comply with Mabuse’s J’s order and has to date
not performed the required demolition and restoration work of the ten Units to be in
accordance with the sectional title plans . The third defendant could thus also not
issue the clearance figures yet.
[7] About nine months after Mabuse J’s order, on 25 July 2016 , the plaintiff
issued application proceedings out of this Court . I t sought an order (a) that it in
essence be authorised to give effect to Mabuse J’s order (Part A) and (b) to compel
the first defendant to do all things and sign all documents necessary to give effect to
the agreement, including paying all amounts required by the relevant local authorities
and the South African Revenue Service (SARS) to obtain clearance certificates (Part
B, i.e. after Part A had been given effect to ). This application was dismissed by
Molahlehi J in his judgment of 16 February 2018 . The grounds for the dismissal
were: first, with reference to Part A, that the plaintiff who was not a party to the
urgent application , did not apply for leave to intervene therein; and second, with
reference to Part B, that there existed a dispute of facts (“Molahlehi J’s judgment”).
[8] The plaintiff then issued summons in the action before me on 26 September
2018, and it was served on the first defendant on 3 October 2018.
The plaintiff’s claim
[9] It is against th e aforementioned litigation background that the plaintiff now
seeks the following primary relief in the particulars of claim:
“1. The Plaintiff is given leave to intervene in case number 81764/2015 instituted by
“1. The Plaintiff is given leave to intervene in case number 81764/2015 instituted by
the Second Defendant against the First and Third Defendants out of this Court.
2. The Plaintiff be and is hereby authorised to:
2.1. give effect to the order handed down by The Honourable Mr Justice
Mabuse on 20 October 2015 under case number 81764/2015 (the “ Court
Order”);
2.2. demolish all permanent structures erected in sectional title units 1, 2, 3, 4,
5, 6, 7, 8, 9 and 10 at the Sectional Title Scheme known as Unipark
situated at Erf 1[...], City of Tshwane, Gauteng ( “Unipark”) in order to
ensure that such sectional title units are in accordance with the sectional
title plans of Unipark;
2.3. restore sectional title units 1, 2, 3, 4, 5, 6,7, 8, 9 and 10 of Unipark, and
specifically restore the electrical wiring and water pipes at Unipark, to be in
accordance with the sectional title plans of Unipark;
2.4. sign all documents, and do all things necessary, to ensure that section title
units 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 properly comply with the National
Building Regulations and Building Standards Act.
3. The First Defendant shall forthwith give the Plaintiff access to sectional title units
1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of Unipark in order for the Plaintiff to give effect to
the Court Order as set out above.
4. Any amounts expended by the Plaintiff in giving effect to the Court Order shall be
deducted from the purchase price payable by it to the F irst defendant under and
in terms of the sale agreement.
5. The Plaintiff shall obtain confirmation from the National Regulator confirming that
sectional title units 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 properly comply with the
National Building Regulations and Building Standards Act.
6. Following delivery by the Plaintiff to the First Defendant of confirmation from the
national regulator that sectional title units 1, 2, 3, 4, 5, 6, 7, 8, 9 and 10 of
Unipark properly comply with the National Building Regulations and Building
Standards Act:
6.1. the First Defendant shall forthwith do all things, and sign all documents,
necessary to give effect to the Sale Agreement;
6.2. the First Defendant shall pay all amounts required by the relevant local
6.2. the First Defendant shall pay all amounts required by the relevant local
authorities and the South African Revenue Service in order to obtain
clearance certificates in respect of the Units;
6.3. should the First Defendant fail or refuse to do such things, and sign such
documents as may be necessary to effect the transfer of the Units to the
Plaintiff as aforesaid, the Sheriff of this Court (or his lawful deputy) be and
is hereby authorised to do such things and/or sign such documents for and
on the First Defendant’s behalf.”
Further relevant background facts
[10] Although there is a discrepancy in the pleadings, it seemed to me during oral
argument that it is common cause that the suspensive conditions in the agreement
were duly fulfilled on 24 April 2015. Nothing in any event turns on the
aforementioned discrepancy, and I accept the agreement became unconditional on
24 April 2015.
[11] On 15 September 20 15, the plaintiff’s attorney sent the second of two letters
of demand to the first defendant, formally placing th e first defendant on terms to
remedy its breach of clause 9.1 of the agreement within ten calendar days of receipt
of the letter (“the letter of demand”) . The breach of clause 9.1 relates to the first
defendant’s non-payment of the charges required by the relevant Local Authority and
SARS to obtain clearance figures contemplated in the agreement. It reads as
follows:
“9.1. All the costs of an incidental to the passing of transfer of the Property to the
Purchaser, including transfer duty (if any), stamp duty, bond costs, bank charges,
pro rata share of current rates and other charges, value added tax and all
Conveyancing fees and disbursements shall be borne by the Purchaser, who
shall pay such costs or estimated costs forthwith upon request being made
therefor by the conveyancers. The conveyancers shall attend to the registration
of transfer of the Property into the name of the Purchaser after the fulfilment of
the suspensive conditions herein but provided:
9.1.1. the Purchaser has:
9.1.1.1. paid all transfer costs and other fees and disbursements
(including estimated amounts payable by it as referred to
herein; and
9.1.1.2. secured the Purchase Price as required herein; and
9.1.2. the Seller has:
9.1.2.1. procured that the third parties who have encumbrances
over the Property have agreed to the cancellation of such
encumbrances upon transfer of the Property to the
Purchaser;
9.1.2.2. paid all charges required by the relevant Local Authorities
and SARS, to obtain clearance figures;
9.1.3. the Purchaser and Seller have duly attended to the signature and
completion of all necessary information for the purposes of transfer,
which the Purchaser and Seller shall be obligated to do within 14
(fourteen) calendar days after being called upon in writing to do so by
the Conveyancers.”
[12] It is common cause that the clearance figures were not paid.
[13] Clause 11 of the agreement deals with breach and provides as follows:
“In the event of either party to this agreement committing any breach or default of
its obligations under this agreement , and remaining in such breach or default for a
period of 10 (ten) calendar days after the aggrieved party has called upon the party
in breach by written notice to remedy such branch [breach], the aggrieved party
shall be entitled either to sue the defaulting party for performance of its obligations
under this agreement , or alternatively to can cel the agreement, without prejudice
however to the aggrieved party’s right to claim payment from the defaulting party of
any damages sustained by it by reason of the defaulting party’s default.”
Res judicata
[14] The first defendant pleaded res judicata on the basis that the claim in this
action was finally adjudicated upon by a Court of competent jurisdiction and set out
in Molahlehi J’s judgment.
[15] Counsel for the p laintiff referred me to National Sorghum Breweries Ltd (t/a
Vivo African Breweries) v International Liquor Distributors (Pty) Ltd ,2 and argued
amongst other, that it is settled law that in order to successfully raise a plea of res
judicata, a defendant must show that the plaintiff is demanding the same thing on the
same ground, on the same cause for the same relief, and that issue has been finally
determined upon by a competent court. In counsel’s view, although the plaintiff is
determined upon by a competent court. In counsel’s view, although the plaintiff is
demanding the same thing on the same ground from the first defendant, Molahlehi J
2 2001 (2) SA 232 (SCA) at paras 2-3.
did not deal with the merits of either Part A or Part B of the application and the issues
have therefore not been finally determined.
[16] In Horowitz v Brock ,3 the Appellate Court dealt with the requirements of a
defence of res judicata and stated as follows:
“The requisites of a valid defence of res judicata in Roman -Dutch law are that the
matter adjudicated upon, on which the defence relies, must have been for the same
cause, between the same parties, and the same thing must have been demanded.”
[17] The Appellate Court continued that the rule that the same thing must have
been demanded in both actions has been held by Steyn CJ in African Farms and
Townships Ltd v Cape Town Municipality,4 to mean:
“[T]hat where a court has come to a decision on the merits of a question in issue , that
question, at any rate as a causa petendi of the same thing between the same parties,
cannot be resuscitated in subsequent proceedings.” (Emphasis added.)
[18] In Prinsloo NO v Goldex 15 (Pty) Ltd ,5 Brand JA distilled the gist of the plea
of res judicata as follows:
“The expression 'res iudicata' literally means that the matter has already been decided.
The gist of the plea is that the matter or question raised by the other side had been
finally adjudicated upon in proceedings between the parties and that it therefore
cannot be raised again.” (Emphasis added.)
[19] To my mind, neither of the two substantive questions in the application before
Molahlehi J, being whether the plaintiff should be authorised to give effect to Mabuse
J’s order (Part A), and whether the first defendant should be compelled to do all
things and sign all documents necessary to give effect to the agreement (Part B) ,
was finally determined by Molahlehi J. It is patently clear from the judgment that
Molahlehi J’s reasoning was that, with regards to Part A , the application was flawed
since the plaintiff didn’t apply for leave to intervene, and with regards to Part B, there
since the plaintiff didn’t apply for leave to intervene, and with regards to Part B, there
was a dispute of fact that was not resolvable on the papers. This view is fortified in
the more recent matter of Skog NO v Agullus,6 wherein the Supreme Court of Appeal
3 1988 (2) SA 160 (A) at 178H.
4 1963 (2) SA 555 (A) at 562C-D.
5 2014 (5) SA 297 (SCA) at para 10.
6 2024 (1) SA 72 (SCA) at paras 72-73.
was inter alia seized with a cross -appeal by occupiers ( respondents) against the
Land Claims Court’s dismissal of their defence that the matter had been rendered
res judicata by an earlier magistrates' court order dismissing an eviction application
brought by the Trust (one of the appellants) against the same respondents.
Molemela JA dealt as follows with the cross-appeal:
“[72] It is well established that the successful invocation of res judicata requires the
party raising that plea not only to show that there was an identity of the parties and of
the issues in the former and in the present litigation, but must also show that the earlier
judgment relied upon was a final judgment. It is evident from the magistrate's judgment
that no final finding was made in respect of the allegations of misconduct against the
occupiers, as the magistrate believed that there was a dispute of fact on that aspect.
[73] Where the application is dismissed because of the existence of a factual
dispute, it would result in untenable hardship for the applicant in a matter of this nature
if, in circumstances where an issue was raised, but not finally determined, the earlier
judgment would entitle the respondent to successfully invoke the plea of res judicata,
despite that specific issue not having been adjudicated upon.” (Footnotes omitted.)
On the above basis, the special plea of res judicata cannot succeed and must be
dismissed.
Prescription
[20] The first defendant pleaded that prescription began to run on 15 March 2015,
alternatively 28 April 2015 when the suspensive conditions in the agreement were
fulfilled; further alternatively, and considering clause 11 of the agreement and the
date of the letter of demand, the date upon which the plaintiff was entitled to enforce
the agreement arose at the latest on 25 September 2015. Since the summons was
served on 3 October 2018, the claim prescribed in terms of section 11 of the he Act.
served on 3 October 2018, the claim prescribed in terms of section 11 of the he Act.
[21] The first defendant also pleaded that the application before Molahlehi J as
dismissed, did not interrupt prescription in terms of the provisions of section 15(2) of
the Act. Although it is not pleaded that Mabuse J’s order does not amount to a
superior force in terms of the provisions of section 13(1) of the Act, this was argued
by the first defendant’s counsel in response to paragraphs 12.4 to 12.6 of the
plaintiff’s consequential replication, and I return to this aspect later.
[22] The plaintiff replied in its consequential replication that the plea of prescription
is unsustainable for the following three primary reasons:
(a) Two of the plaintiff’s claims do not constitute a “debt” that prescribes.
(b) The one claim that is a “ debt” and can prescribe namely its claim under
prayer 6.1 of the particulars of claim (to compel the first defendant to do
all things and sign all documents necessary to give effect to the
agreement), has not prescribed and in fact prescription has not begun
to run on that claim yet. The debt is not due until the first defendant has
paid all amounts necessary to obtain clearance certificates.
(c) The plaintiff was precluded by a superior force (Mabuse J’s order) from
enforcing its claim for transfer of the Units and therefore completion of
prescription has, in any event, been delayed.
[23] According to the plaintiff, it is not its claim for transfer of the Units that arose at
the latest on 25 September 2015, but only its claim to compel the first defendant to
pay clearance figures and this claim is not a “debt” that can prescribe. Neither is its
claim under prayers 1 to 5 of the particulars of claim to intervene in the urgent
application (under case no: 81764/2015) . From the wording of clause 9.1 of the
agreement, a necessary precondition to transfer the Units to the plaintiff is that the
purchaser pays the charges required by the relevant Local Authorities (i.e. clearance
figures) and that a clearance certificate is thereafter obtained.
[24] Three issues arise from the above:
(a) What is the nature of the plaintiff’s formulated claim – is it a debt
capable of prescribing?
(b) If the plaintiff’s claim is a debt capable of prescription, when did the
debt become due?
(c) Is Mabuse J’s order a superior force in terms of the provisions of
section 13(1) of the Act that has (and continue to) delay the completion
of prescription?
[25] The statutory provisions relevant to these three issues are sections 10(1), 11,
12(1), 13(1)(a) and (i) and 15(1) of the Act.
(a) Section 10 of the Act provides for the extinction of debts by prescription
and the relevant part of section 10(1) reads:
“[A] debt shall be extinguished by prescription after the lapse of the period
which in terms of the relevant law applies in respect of prescription of such
debt.”
(b) Section 11 is headed “Periods of prescription of debts” and the relevant
part provides:
“The period of prescription of debts shall be the following:
(a) . . .
(b) . . .
(c) . . .
(d) save where an Act of Parliament provides otherwise, three years in
respect of any other debt.”
(c) Section 12, in turn, is headed “When prescription begins to run” and the
relevant part of section 12(1) provides:
“. . .prescription shall commence to run as soon as the debt is due.”
(d) Section 13 is headed “Completion of prescription delayed in certain
circumstances” and the relevant part of section 13(1)(a) and (i)
provides:
“(1) If-
(a) the creditor is a minor or . . . . is prevented by superior force
including any law or any order of court from interrupting the
running of prescription as contemplated in section 15(1);
(i) the relevant period of prescription would, but for the
provisions of this subsection, be completed before or
on, or within one year after, the day on which the
relevant impediment referred to in paragraph (a), (b),
(c), (d), (e), (f), (g) or (h) has ceased to exist,
the period of prescription shall not be completed before a year has elapsed
after the day referred to in paragraph (i).”
(e) Lastly, section 15 provides for j udicial interruption of prescription and
reads:
(1) The running of prescription shall, subject to the provisions of
subsection (2), be interrupted by the service on the debtor of any
process whereby the creditor claims payment of the debt.
(2) Unless the debtor acknowledges liability, the interruption of
prescription in terms of subsection (1) shall lapse, and the running of
prescription shall not be deemed to have been interrupted, if the
creditor does not successfully prosecute his claim under the process in
question to final judgment or if he does so prosecute his claim but
abandons the judgment or the judgment is set aside.”
[26] I follow the following constitutional approach adopted the Constitutional Court
in Makate v Vodacom (Pty) Ltd (Makate),7 when interpreting the relevant sections of
the Act:
“It cannot be disputed that section 10(1) read with sections 11 and 12 of the
Prescription Act limits the rights guaranteed by section 34 of the Constitution.
Therefore, in construing those provisions, the High Court was obliged to follow section
39(2), irrespective of whether the parties had asked for it or not.”
What is the nature of the plaintiff’s formulated claim – is it a debt capable of
prescribing?
[27] The first defendant’s counsel argued as follows: in paragraph 12 of the
particulars of claim, the plaintiff alleges that, notwithstanding the delivery of the letter
of demand, the first defendant continues to refuse to effect transfer of the Units to
the plaintiff. In paragraph 13, the plaintiff then seeks specific performance by the first
defendant of its obligations under and in terms of the agreement, namely that the
defendant of its obligations under and in terms of the agreement, namely that the
first defendant does all things and signs all documents necessary to give effect to the
7 2016 (4) SA 121 (CC) at para 90.
agreement. As such, the essence of the plaintiff’s case is simply , in effect (despite
what the aforementioned prayers are disguised to do otherwise) , to seek transfer of
the immovable property in terms of the agreement.
[28] In response to the plaintiff’s pleaded contention that at best for the first
defendant it is the plaintiff’s claim to compel the first defendant to pay clearance
figures that arose on 25 September 2015 (and not to claim specific performance for
transfer) and that this is not a debt and therefore not capable of prescription, the first
defendant’s counsel relied upon the judgment in Frieslaar NO and Others v
Ackerman (Frieslaar),8 and argued that ultimately the claim is for specific
performance to achieve transfer of the Units in terms of the agreement. The plaintiff
could have simultaneously asked for payment of clearance amounts and transfer
within three years of fulfilment of the suspensive conditions, and they in fact did
exactly that when the plaintiff brought the application that served before Molahlehi J.
The same relief is sought again in this action, albeit after prescription of the claim.
[29] Lastly, with regards to the claim to intervene, the first defendant’s counsel
argued that the plaintiff does not need to intervene to enforce its contractual right,
and in any event, if it is correct that what the plaintiff seeks is in effect a transfer of
the immovable property and their claim has prescribed, then too has their right to
intervene in the Court proceedings.
[30] The argument of plaintiff’s counsel starts with the precursor that (a) the
Constitutional Court in Makate9 clarified the definition of a “debt” as an obligation to
pay money, deliver goods or render services, (b) the Constitutional Court further held
that there is nothing in law to suggest “that 'debt' includes every obligation to do
something or refrain from doing something, apart from payment or delivery” 10 and (c)
something or refrain from doing something, apart from payment or delivery” 10 and (c)
the debt in question must also be owed by the debtor to the creditor (and not to a
third party).
8 [2018] ZASCA 3.
9 Above n 7 at para 92.
10 Above n 7 at para 93.
[31] The plaintiff, so the argument proceeded, essentially seeks three forms of
relief, namely (a) leave to intervene , (b) an order compelling the first defendant to
pay all amounts required by the relevant local authorities and the SARS in order to
obtain clearance certificates in respect of the Units, and (c) an order compelling the
first defendant thereafter to do all things, and sign all documents, necessary to give
effect to the agreement. Clearly, the first relief is not a “debt” whilst the third relief
admittedly is.
[32] The reasons advanced in plaintiff’s counsel’s heads of argument as to why the
second form of relief is not a “debt” to the plaintiff that can prescribe, is essentially
that although the order seeks the first defendant to “pay money”, the money is to be
paid to the City of Tshwane and SARS and thus a “debt” owed to them and not to the
plaintiff. Similarly, the order it seeks to compel the first defendant to “do something”
(i.e. pay the City of Tshwane and SARS), is not an obligation to pay or deliver
something to the plaintiff. Rather, it is an obligation to pay something to a third party ,
which will then enable the plaintiff to obtain clearance certificates , which, in turn, will
allow the Units to be transferred.
[33] Although the plaintiff initially pleaded that the second form of relief it seeks is
not capable of prescription in that “ it does not constitute a claim for payment of
money or a claim for the delivery of something ”, plaintiff’s counsel has as
aforementioned, in his heads of argument conceded, correctly in my view, that since
the relief it seeks is indeed for the first defendant to “pay money” and “to do
something”, it falls within the definition of a “debt”. It now rather contends that it is
simply not a “debt” to the plaintiff that can prescribe , but it is a debt owed to a third
party.
[34] The Constitutional Court in Makate11 referred with approv al to Electricity
party.
[34] The Constitutional Court in Makate11 referred with approv al to Electricity
Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd ,12 in which the Appellate
Division adopted the following dictionary meaning ascribed to the word “debt” in the
Shorter Oxford English Dictionary 5ed (1993):
11 Above n 7.
12 1981 (3) SA 340 (A) at 344E – G.
“1. Something owed or due: something (as money, goods or services) which one
person is under an obligation to pay or render to another.
2. A liability or obligation to pay or render something; the condition of being
obligated.”
[35] Counsel for the first defendant submitted that Frieslaar NO is on material
respects on all fours with the present matter .13 That case related to four pieces of
immovable property sold by the respondents to the Trust pursuant to agreements of
sale couched in identical terms, concluded on 25 February 2010. Clause 7.1 of t he
respective agreements of sale, imposed the following obligation on the respondents
as the sellers (which is comparable with clause 9.1 of the agreement in casu):
“The Seller shall be liable for all transfer costs, transfer duty, stamp duty, . . . and transfer
of the property into the name of the Purchaser by the conveyancers of the Seller, and the
conveyancing shall only commence after such costs have been paid by the Seller.”
The respondents raised a special plea of prescription , asserting that the claim of the
appellants had arisen on 25 February 2010 (when the agreements were concluded)
and that the appellants' summons was served on them on 7 March 2013, more than
three years after the date on which the claims arose.
[36] In the course of considering the meaning of the term “debt” in the Act, Petse
JA held as follows:14
[19] “The word 'debt' is not defined in the Prescription Act. But it is now trite that
the word 'debt' in s 12(1) of the Prescription Act is a wide concept which does not
equate to a 'cause of action'. Rather, it includes the broader concept of a 'right of
action'. In Drennan Maud & Partners v Town Board of the Township Pennington [1998]
ZASCA 29; 1998 (3) SA 200 (SCA) Harms JA put it thus (212F-J):
'[I]n 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,
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.'
[20] In Barnett & others v Minister of Land Affairs & others [2007] ZASCA 95; 2007
(6) SA 313 (SCA), para 19, the term 'debt' was given a broad meaning to refer to an
13 Above n 8.
14 Frieslaar NO above n 8 at paras 19-21.
obligation to do something, such as payment or delivery of goods or to abstain from
doing something.
[21] However, the Constitutional Court has expressed reservations in its recent
decisions, notably, Makate v Vodacom (Pty) Ltd [2016] ZACC 13; 2016 (4) SA 121
(CC) para 87 -93, in relation to the precise ambit of the word 'debt' implying that it
should be interpreted narrowly. Fortunately though, on the facts of this case , it is not
necessary to enter into that debate which must be left for another day when pertinently
raised and this court has enjoyed the benefit of full argument on this score for, in the
context of the facts of this case, even in adopting a narrow meaning of the word 'debt',
the obligations undertaken by the respondents in terms of clause 7.1 constitute a
debt.” (Emphasis added.)
[37] In Frieslaar NO ,15 counsel for the appellants (plaintiffs) contended with
reference to the aforementioned clause 7.1 (similar to plaintiff’s argument in casu
that the “debt” in terms of clause 9.1 of the agreement is an obligation to pay
something to a third party), that the obligation on the seller did not constitute a debt
and even if it were to be regarded as a debt, it was a debt owed not to the Trust but
to the conveyancers who were to transfer the properties to the Trust. The argument
was rejected by the Court, which inter alia stated the following:
“[36] Second, it cannot be an answer to say that the obligation to pay transfer costs
is owed to the conveyancers simply because payment must, in terms of clause 7.1, be
effected to them as the appellants sought to argue. The obvious answer is that all of
the obligations undertaken by the respondents in terms of the agreements in question
were owed to the Trust as the contracting party and only the Trust was entitled to
enforce those obligations.
[37] It therefore follows that the Trust had every right, had it elected to do so, to
demand that the respondents do what was required of them in terms of clause 7.1
demand that the respondents do what was required of them in terms of clause 7.1
immediately upon the conclusion of the agreements of sale.”
[38] In casu, only the plaintiff is entitled to enforce clause 9.1 of the agreement and
when the letter of demand is considered, the plaintiff was clearly aware that it had
every right to demand, as it did, that the first defendant fulfil its obligations in terms of
15 Above n 8 at paras 36-37.
clause 9.1, and that the first defendant’s non -compliance would amount to a breach
of the agreement. The plaintiff’s argument that payment of clearance figures is an
obligation to pay something to a third party is thus rejected.
[39] I furthermore agree with the contention of the first defendant’s counsel that
the essence of the plaintiff’s case is to seek transfer of the immovable property in
terms of the agreement. Prayer 6.1 of the particulars of claim seeks to order the first
defendant, after compliance with Mabuse J’s order, to do all things and sign all
documents necessary for the transfer of the Units in the plaintiff’s name , and it
constitutes a “debt”. As was stated in Ethekwini Municipality v Mounthaven (Pty)
Ltd:16
“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' in
the dictionary sense accepted in Makate. It really is as simple and straightforward as
that.”
[40] The first defendant has an obligation to the plaintiff to do all things and sign all
documents necessary to transfer the Units, including the obligation to make payment
of the clearance figures. The root premise behind prayer 6.2, i.e. to seek payment of
the clearance figures, thus remains the transfer of the Units to the plaintiff. In using a
narrow meaning, although a "debt" does not include every obligation in the
agreement to do something or refrain from doing something, it is trite that payment
and delivery are included. I thus apply Frieslaar NO and find that on either a broad or
narrow view, both the second and third forms of relief the plaintiff seeks in prayers
6.1 and 6.2 are debts capable of prescription.
[41] Lastly, prayers 1 to 5, namely to intervene in the urgent application and to
carry out Mabuse J’s order, do not constitute obligations on the first defendant to pay
money, deliver goods, or render services. As such, it does not constitute a “debt” and
accnot prescribe.
accnot prescribe.
When did the claims in prayers 6.1 and 6.2 fall due?
16 2019 (4) SA 394 (CC) at para 8.
[42] In this regard, the sum of the first defendant’s prescription plea is that,
considering the date of the letter of demand, the date upon which the plaintiff’s
claims arose was at the latest on 25 September 2015. During argument, counsel
contended that this is the date when the plaintiff could have enforced its rights under
the contract, including the first defendant’s obligations under clause 9.1. Counsel
relied on the plaintiff’s replication and submitted, correctly in my view, that I must
accept for purposes of the special plea that the pleadings are correct since no
evidence is being led. He referred me to the replication wherein the plaintiff pleaded
that “performance by both parties was due within a reasonable time after fulfilment of
the suspensive conditions”. As already stated, it is common cause that these
conditions were fulfilled before the letter of demand was delivered (on 24 April 2015)
and thus the contention of 25 September 20 15, which is also in accordance with
clause 11 of the agreement. He further again referred quite extensively to Frieslaar
NO,17 which I will return to again below.
[43] Plaintiff’s counsel, for his part, contended as follows:
(a) Firstly, with reference to various authorities, a debt is “due” when every
fact necessary to sustain a cause of action is present and in existence.
That is when the creditor acquires a complete cause of action for its
recovery. Thus, all necessary preconditions to claiming relief must have
been fulfilled, and prescription cannot begin to run before the cause of
action is fully accrued. In respect of the transfer of immovable property,
the cause of action is fully accrued when the plaintiff is in a position to
obtain the transfer of the immovable property from the defendant.
In casu , the plaintiff is not in a position to take transfer of the Units
unless two events occur, i.e., the first defendant has made payment of
the clearance figures and the City of Tshwane has issued clearance
the clearance figures and the City of Tshwane has issued clearance
certificates, and secondly, Mabuse’s J’s order has been given effect to.
Obtaining clearance certificates to obtain transfer of the Units is
contingent upon compliance with Mabuse J’s order.
17 Above n 8.
Unless and until the plaintiff is entitled to transfer of the Units, every
fact necessary to sustain a cause of action is not present and in
existence. In support of this contention, plaintiff’s counsel relied
specifically on Santam Ltd v Ethwar (“Ethwar”)18 and Brooklyn Edge
(Pty) Ltd v City of Tshwane Metropolitan Municipality (Brooklyn Edge).19
Below, I will deal with these authorities, which, in my view , are both
distinguishable from this matter.
(b) Secondly, even if the “debt” (i.e. transfer of the Units) could start to run
prior to compliance with Mabuse J’s order, it did not start to run o n 25
September 2015. This is because clause 11 of the agreement gives the
plaintiff an election upon the first defendant failing to remedy its breach
on 25 September 2015 – the plaintiff can either “sue the defaulting
party for performance of its obligations under this agreement, or
alternatively to cancel this agreement…” . It is settled law that since the
first defendant repudiated the agreement, the plaintiff was entitled to a
reasonable time to elect whether or not to claim specific performance or
cancel and claim damages.20 Unless and until the election is made, the
plaintiff cannot be said to be in default, or guilty of dilatoriness and this
contention is supported by the S upreme Court Appeal judgment in
Standard Bank of South Africa Ltd v Miracle Mile Investments 67 (Pty)
Ltd (“Miracle Mile Investments”).21 Only after this reasonable time could
prescription said to have commenced to run. In casu, Mabuse J’s order
was granted on 20 October 2015 , prior to a reasonable period elapsing
from 25 September 2015 . It was only on 21 October 2015, at the very
earliest, that the Plaintiff could institute the claim and that prescription
could notionally have started to run.
18 1999 (2) SA 244 (SCA).
19 [2019] ZAGPPHC 233. This matter went on appeal - See City of Tshwane Metropolitan Municipality v Brooklyn
Edge (Pty) Ltd and Another (928/2020) [2022] ZASCA 23; [2022] 2 All SA 334 (SCA) (1 March 2022) and n35
below.
20 HMBMP Properties (Pty) Ltd v King 1981 (1) SA 906 (N) (HMBMP Properties).
21 2017 (1) SA 185 (SCA) at para 26.
[45] I deal first with the plaintiff’s second contention and the case law he referred
me to in support thereof:
(a) I do not regard HMBMP Properties as authority for the contention that
the innocent party has a reasonable time to make an election whether
to reject or accept the repudiation. The case is also distinguishable
from this matter because it deals specifically with anticipatory breach. It
is within this context that Thirion J said at 912 F to H:
“It is settled law that an anticipatory repudiation has no effect in law
unless and until the innocent party elects to treat it as a breach and
cancels the contract. If he does not elect to cancel the contract he cannot
sue for damages in respect of obligations the due date, for the
performance of which, has not yet arrived.
In my view in the case of an anticipatory breach the innocent party's cause
of action, in respect of damages resulting from the repudiation by the other
party of an obligation which is to be performed by him at some future date,
only accrues and the "debt" of the guilty party only becomes due when the
innocent party makes his election to treat the contract as at an end.
Consequently I am of the view that prescription commences to run from
that date.” (Own emphasis added.)
Election is a prerequisite to a plaintiff's right to claim damages in
respect of anticipatory breach . Absent such election, the repudiating
party can always retract his repudiation “and thus purge his own
continuing refusal to be bound by the contract” . Thus, in the event that
the innocent party wants to claim damages in anticipation of a breach
before the “ debt is due”, the party has to give notice thereof for the
claim to accrue. That is different from the election in terms of clause 11
of the agreement in casu where the letter of demand evidenced that the
breach already occurred and the first defendant was placed on terms to
pay the clearance figures, failing which the plaintiff was immediately
pay the clearance figures, failing which the plaintiff was immediately
entitled to either sue for specific performance or cancel the agreement
I
and sue for damages. In terms of this election I find that the due date of
the debt is not postponed. As stated by Professor Loubser:22
“The right of election to enforce a remedy for breach of contract
should be exercised within a reasonable time; and the creditor who
fails to act runs the risk of an inference of waiver of the rights; but
prescription in any event applies as a backstop so that the debt
correlative to this right becomes prescribed three years after the
breach occurred or after the creditor obtained knowledge or could
reasonably have had knowledge of the breach.”
There is also the difficulty , as referred to in various authorities , that if
time did not commence running until the plaintiff has made its election,
the plaintiff would by its own action be able to put off the running of
prescription indefinitely. That is contrary to what was stated in, amongst
other cases, Uitenhage Municipality v Molloy ,23 and Benson v
Walters.24
(b) Miracle Mile Investments 25 was decided within the specific context of
accelerated clauses in a contract, and is similarly also distinct from this
case. The issue in principle before the S upreme Court of Appeal was
“when prescription commences to run in an agreement containing an
acceleration clause that entitles the creditor bank to claim the whole
outstanding amount payable, upon the occurrence of a breach by the
principal debtor.” (Own emphasis added.) Is the debt in terms of section
12(1) of the Act due when the principal debtor breaches the obligation
to pay the monthly instalment, or is it due when the creditor elects to
enforce the acceleration clause, in order to render the whole amount
payable?
It was a condition of the acceleration clause in the agreement that
before Standard Bank could claim payment of the full balance, it had to
22 Loubser Extinctive Prescription 2nd ed (Juta & Co Ltd, Cape Town) at 154.
23 1998 (2) SA 735 (SCA) at 742A-G.
24 1981 (4) SA 42 (C) at 49G.
23 1998 (2) SA 735 (SCA) at 742A-G.
24 1981 (4) SA 42 (C) at 49G.
25 Miracle Mile Investments above n 21 at para 2.
furnish the debtor with a first written notice to remedy a failure to pay
any instalment within seven days, and in the event of a failure to make
payment, a second written notice that it is terminating the facility and
claiming immediate repayment of the full outstanding balance. Only the
first notice was given and upon continued failure to make payment, the
second notice was never issued. The full balance owing on the facility,
excluding the outstanding arrear payments, was thus not yet due as
Standard Bank never elected in terms of the agreement to terminate
the facility and claim repayment of the full outstanding balance. It is
within this context that Mbha JA held as follows:26
“Compliance with the jurisdictional requirements for acceleration of the
outstanding balance is not simply a procedural matter but is essential
in establishing a cause of action. . . . .[T]here is no sense in looking for
the moment in time when the debt is due, if the debt does not even
exist. It is not a case of delaying an existing claim. The creditor cannot
be said to be in default, or guilty of dilatoriness, until he has made his
election. The election and communication thereof in the form of the
requisite notices are essential preconditions to create a cause of
action in the first place. The election is one which Standard Bank does
not have to take at all. Prescription would therefore commence to run
only from the date of a notice claiming the outstanding balance in
terms of clause 12.2 [of the agreement].”
[46] The provisions of clause 11 of the agreement in casu do not require notice to
be given of the plaintiff’s election to either sue for performance or cancel the
agreement. It simply entitles the plaintiff to immediately proceed with either if the first
defendant remains in breach for a period of 10 (ten) calendar days after demand.
[47] I now turn to the plaintiff’s first contention, i.e. that the plaintiff is not in a
[47] I now turn to the plaintiff’s first contention, i.e. that the plaintiff is not in a
position to take transfer of the Units unless (a) the first defendant has made payment
of the clearance figures and clearance certificates are issued, and (b) Mabuse’s J’s
order has been given effect to . Since this has not happened yet, the debt is not due
yet, and prescription cannot commence running.
26 Miracle Mile Investments above n 21 at para 26.
[48] My starting point to decide when the debt became due is the interpretation of
clauses 9.1 and 11 of the agreement and the interpretation of the Act referred to
above. In Natal Joint Municipal Pension Fund v Endumeni Municipality ,27 Wallis JA
summarised the state of the law in regard to interpretation . The point of departure is
the language of the relevant provisions, read in context and having regard to the
purpose of the provision s and the background to the preparation and production of
the document.
[49] In Frieslaar NO, the S upreme Court of Appeal examined the jurisprudence
dealing with the interpretation of the phrase “debt is due” in section 12 of the Act, and
referred to relevant authorities as follows:28
“[22] Similarly, the phrase 'debt is due' is not defined in the Prescription Act. But it is
now well settled that the term must be given its ordinary meaning, that is, that a
debt owing and already payable or immediately claimable or immediately exigible
at the election of the creditor . . . .Put differently, there must be a debt in respect
of which the debtor is under an obligation to perform immediately.
[31] An obligation to do something undertaken in terms of a contract, when the
contract is silent as to the time of performance, is a debt which becomes
immediately claimable or exigible at the instance of the creditor. Thus
prescription commences to run from the date on which the contract was
concluded. In Munnikhuis v Melamed NO 1998 (3) SA 873 (W) the court
said the following (at 887E-F):
'. . . A right to claim performance under a contract ordinarily becomes due
according to its terms or, if nothing is said, within a reasonable time, which
in appropriate circumstances, can be immediately . . .'”
Petse JA further refers to Professor Loubser who, inter alia points out that where a
contract is silent as to the time of performance, the debt is generally due
immediately upon conclusion of the contract. 29 He also refers to J Saner SC who
immediately upon conclusion of the contract. 29 He also refers to J Saner SC who
in Prescription in South African Law, Issue 23 (2016) says the following (at 3.65):
27 2012 (4) SA 593 (SCA) at para 18.
28 Above n 8 at para 22 & 31.
29 Above n 8 at para 34.
“It is arguable that a contract allowing a creditor to determine, of his own accord,
when performance is to be made is in effect silent as to the time of performance.
Performance is therefore due immediately on conclusion of the contract, when
prescription begins to run. Taking the argument further, the stipulation that
performance is due on demand merely reinforces the implicit term of the contract
that performance is due from the conclusion of the contract.”
[50] According to clause 9.1 of the agreement, the conveyancers must attend to
the registration of transfer of the Units into the name of the purchaser “after the
fulfilment of the suspensive conditions , but provided ” amongst others, the seller
paid all charges required to obtain clearance figures . Plaintiff’s contention implies
that the payment of clearance figures and issuing of clearance certificates was a
further suspensive condition that had to be fulfilled before transfer of the Units.
Having regard to paragraph 9.1 as a whole and the language used in the context
of the ordinary rules of grammar and syntax, I reject this approach. The obligations
imposed on the parties in clause 9.1 are not couched as forming part of the
suspensive conditions that should be fulfilled before transfer of the Units can take
place, but rather as a further term or obligations. The plaintiff’s contention can
therefore not stand.
[51] Clause 9.1 nowhere stipulates the time a t which payment of the clearance
figures should be made. All it does is to impose, amongst others, an obligation on
the first defendant as the seller to pay these costs. The only reference to a time
period is in clause 3.2 of the agreement that stipulates that the first
defendant/conveyancer “will not apply for clearance figures prior to the fulfilment of
the suspensive conditions. ...” The plaintiff thus had every right, had it elected to
do so, to demand that the first defendant complies with the terms of clause 9.1
do so, to demand that the first defendant complies with the terms of clause 9.1
immediately upon fulfilment of the suspensive conditions. This is precisely what
the plaintiff did when it issued the two letters of demand.
[52] This brings me t o Mabuse J’s order and the contention that the claim for
transfer of the Units is not yet due (the running of prescription has not yet
commenced) because the order has not been complied with. Counsel for the
plaintiff argued that the question is not whether the plaintiff was b arred from the
order to institute proceedings, but rather whether the debt is due , i.e., a ll the
elements are present to successfully prosecute the claim and obtain transfer of the
immovable property from the first defendant.
[53] I find it difficult to follow the plaintiff’s argument with regards to Mabuse J’s
order in the context of determining when the debt became due. It is irrelevant. It is
only with reference to sec tion 13(1) of the Act (which I return to below) that
Mabuse J’s order becomes relevant and , in th at context, the only question is
whether it is an impediment that delays the completion of prescription.
[54] In the event that I find that Mabuse J’s order is indeed such an impediment
and the completion of prescr iption is delayed, it is nevertheless possible for the
debt to become due despite such impediment, as explained by Professor Loubser
in his work Extinctive Prescription, wherein he states:30
“A debt may be due even if some impediment or disability prevents that debt from
being enforced by legal process at the time when it becomes due. For example, a due
debt may not be enforceable because the creditor is a minor, or insane, or married to
the debtor in community of property, or a juristic person with the debtor as a member of
its governing body, or deceased without an executor having been appointed; or
because the debtor is a minor, or insane, or outside the Republic, or deceased without
an executor having been appointed. If these circumstances affect the creditor or the
debtor, the 1969 Prescription Act provides that the eventual completion of the
prescription period is delayed, but the Act does not provide that any of the
circumstances mentioned delays the beginning of the running of the prescription
period. The combined effect of ss 12 and 13 of the 1969 Prescription Act is therefore
that a debt may become due and payable so that the prescription period begins to run
even though a disability or impediment affecting one of the parties may prevent the
even though a disability or impediment affecting one of the parties may prevent the
debt from being immediately enforceable by legal process. In such a case the disability
or impediment delays the completion of the prescription period in terms of s 13 of the
Act.”
[55] There are abundant authorities dealing with the term “a debt is due” and I
only refer to a couple here.
30 Loubser above n 22 at 124.
(a) In Truter & Another v Deysel ,31 the Supreme Court of Appeal held as
follows:
“A debt is due . . . 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.”
55.1 It was further held in Apalamah v Santam Insurance Co Ltd32 that:
“Although it is true that in many cases the date upon which a debt
"becomes due" might also be the date upon which it "arose", that is
obviously not true of all cases. There is a vital difference in concept
between the coming into existence of a debt and the recoverability
thereof. There can be little doubt, if any, that the purpose of the
Legislature in enacting sec. 12 (1) of the new Prescription Act was to
crystallize that difference; thenceforth prescription in terms of that Act
began to run not necessarily when the debt arose but only when it
became due.”
55.2 In List v Jungers,33 the Court referred with approval to Apalamah and
held that:
"[T]he date on which a debt arises usually coincides with the date on
which it becomes due, but that that is not always the case. The difference
relates to the coming into existence of the debt on the one hand and the
recoverability thereof on the other hand."
[56] In casu , the plaintiff’s claim for specific performance in terms of the
agreement arose and became due on 24 April 2015 when the agreement became
unconditional (with the letter of demand and clause 11 not creating the due date,
but merely confirming an existing breach). On 24 April 2015 the entire set of facts
31 2006 (4) SA 168 (SCA) at para 16.
32 1975 (2) SA 229 (D) at 232E-F.
33 1979 (3) SA 106 (A) at 121C-D.
which the plaintiff must prove to succeed with its claim for specific performa nce
was in place or, in other words, “had happened which would entitle the plaintiff to
institute action and to pursue the claim”. Mabuse J’s order was not in existence at
this date. Even if it is accepted as pleaded that according to clause 11 t he debt
became due on 25 September 2015,34 this date is still before Mabuse J’s order.
[57] In regard to the plaintiff’s reliance on Brooklyn Edge , the judgment is
distinguishable: Firstly, in Brooklyn Edge the immediate transfer of the properties
was in terms of th at deed of sale conditional upon the City ’s compliance with a
statutory obligation that was present when the deed of sale was entered into ,
namely, successfully effecting the closure and rezoning of the properties . Neither
Mabuse J’s order nor the payment of clearance figures in this matter are in terms
of th e agreement conditions precedent to transfer of the Units , and as stated,
Mabuse J’s order was furthermore only handed down after the debt became due.
Secondly, in regard to the first defendant’s defence in that case that the plaintiff’s
rights to seek the closure and the rezoning of the properties have prescribed, it
was pointed out by the S upreme Court of Appeal, neither of these are debts that
can prescribe.35 In casu, the claims in prayers 6.1 and 6.2 are both debts that can
prescribe.
[58] Counsel for the plaintiff also referred me to the S upreme Court of Appeal
decision in Ethwar36 to support his contentions that because the preconditions to
enable transfer of the property, i.e. compliance with Mabuse J’s order and then the
issuing of clearance certificates, are contingent upon the extraneous aid of third
parties, the debt cannot be due yet. In this regard:
(a) In Ethwar, the plaintiff had concluded a settlement agreement with
the defendant pursuant to which the defendant offered to pay the
plaintiff’s costs “as taxed or agreed between the parties”. More than
plaintiff’s costs “as taxed or agreed between the parties”. More than
three years after the acceptance of the offer, the plaintiff's attorneys
served on the defendant’s attorneys a bill of costs and a notice of
34 See Frieslaar above n 8 at para 31 referring to Munnikhuis v Melamed NO 1998 (3) SA 873 (W).
35 City of Tshwane Metropolitan Municipality v Brooklyn Edge (Pty) Ltd ZASCA 23 at para 30.
36 Above n 18.
taxation, to which the defendant’s attorneys objected on the basis
that the plaintiff’s claim for costs had prescribed. In dismissing the
claim for prescription, Harms JA held at 253B that whether the costs
became payable (i.e. the debt was due) without an agreement or
taxation, depends on whether it was an agreed condition for payment
or that payment was contingent thereon. Agreement or taxation was
not just a simple procedural step, and the parties could not have
intended that the plaintiff could recover her costs without a prior
agreement or taxation. Both require extraneous aid of third parties
over whom the plaintiff had no control. Any summons claiming
payment of costs not agreed upon or not taxed would have been met
by a successful exception.
(b) The contention by plaintiff’s counsel in casu is that b ecause the
clearance certificates are likewise preconditions for transfer but
cannot be obtained before Mabuse J’s order is complied with, and
both are contingent upon the extraneous aid of third parties , the
plaintiff cannot sue for transfer yet.
(c) In my view, the flaw in the plaintiff’s argument is that in casu it is the
first defendant, not a third party, who, in terms of the agreement ,
should pay all amounts to obtain clearance certificates. A debtor's
inability to perform (here, the building non-compliance) is the debtor's
breach; it does not negate the creditor's accrued cause of action to
demand transfer. The plaintiff pleaded in par a 8 of the particulars of
claim, “As such, and by no later than 18 March 2015 (corrected to 24
April 2015 in par a 2 of its consequential replication to the first
defendant’s second special plea) , the Sale Agreement became
unconditional in accordance with its terms, and thus of full force and
effect.” It again pleaded in par 3.1 of its consequential replication that
“The Plaintiff admits that the conditions precedent were indeed
fulfilled by 24 April 2015”. It seems contradictory to me that the
fulfilled by 24 April 2015”. It seems contradictory to me that the
plaintiff now argues that the transfer has never been due because it
was conditional upon the payment of clearance figures. Simply put,
the agreement cannot, in accordance with its terms , simultaneously
be unconditional and conditional.
(d) Although Mabuse J’s order interdicts the issuing of clearance
certificates until the first defendant has performed certain demolition
work and thereafter restores ten of the Units to be in accordance with
the sectional title plans , I already found that the order was delivered
after the debt became d ue on 25 September 2015 , and it cannot
retrospectively change the due date.
Is Mabuse J’s order a superior force in terms of the provisions of section 13(1) of the
Act that has (and continue to) delay the completion of prescription?
[59] Now that I have found that the plaintiff’s obligation in clause 9.1 of the
agreement to pay all the amounts required to obtain clearance certificates is indeed
a debt that became due, together with transfer, on 25 September 2015, the only
question remaining is whether completion of prescription is delayed by Mabuse J’s
order.
[60] First defendant’s counsel submitted the following in summary: In paragraph
19 of the particulars of claim, the plaintiff pleads that its alleged right to enforce the
sale agreement and to take transfer of the Units has been adversely affected by
Mabuse J’s order and the first defendant’s alleged failure to comply and/or seek
enforcement of the court order. The true test is , though, whether the plaintiff was
stopped from doing anything , and they were not – the order only interdicted the first
and third defendants from doing something. This is evidenced by the plaintiff having
approached the Court twice, i.e., by launching the application that served before
Mohahlehi J and instituting this action. The y could and should have done so before
prescription. It was also submitted that the order , in any event, only deals with ten of
the Units and the plaintiff could have enforced performance with regards to the rest
of the Units.
[61] Plaintiff’s counsel, on the other hand, contended the following:
(a) Mabuse J’s order is clearly a “superior force” contemplated by section
13(1) of the Act that precluded the plaintiff from enforcing his claim by
summons. Although the plaintiff could have served summons, it could
not enforce its claim for the transfer of the Units. In effect, it was
powerless to enforce the agreement.
If it instituted action, t he plaintiff would have been met with a special
plea that performance was (at least temporarily) impossible because of
the order. It is only when this impediment is removed and there is
“proper compliance with the National Building Regulations and Building
Standards Act”, that the plaintiff is notionally able to “enforce its claim”.
It is precisely for this reason that the claim for enforcement of the
agreement is conditional upon Mabuse J’s order first being given effect
to.
(b) The contention proceeds that i f I find that Mabuse J’s order did not
interrupt the running of prescription , it would carry with it the absurd
and inequitable consequence that on the one hand, if the plaintiff did
not institute proceedings against the first defendant to enforce the
agreement, its claim would prescribe, and on the other hand, if the
plaintiff did institute such proceedings, its claim would be dismissed
(i.e. on the basis of Mabuse J’s order ). In the latter scenario, section
15(2) of the Act would result in the interruption of prescription falling
away. The plaintiff would be left in the absurd situation that nothing it
could do could possibly interrupt prescription of the “debt” and t his
would undermine the very purpose of the Prescription Act.
(c) Plaintiff’s counsel also does not agree with the contention by counsel
for the first defendant that Mabuse J’s order is against the first and third
defendants and not the plaintiff. He contended that the order is against
everyone it effects.
[62] In summary, sec tion 13 of the Act provides that where an impediment
[62] In summary, sec tion 13 of the Act provides that where an impediment
contemplated by section 13(1) exists, the running of prescription shall not be
completed until one year after the impediment has been removed. In the context of
section 13(1)(a) of the Act, the impediment in question is a “superior force including
any law or any order of court ” that precludes a person from interrupting the running
of prescription.
[63] In Knysna Hotel CC v Coetzee NO,37 the Supreme Court of Appeal interpreted
“superior force ” to mean that the creditor is, objectively speaking, prevented from
enforcing the claim by causing a summons to be served on the debtor , for example,
if a creditor company is in liquidation in respect of which no liquidator has yet been
appointed.
[64] The purpose of section 13 of the Act was summarised as follows by the
Supreme Court of Appeal in Silhouette Investments Ltd v Virgin Hotels Group Ltd:38
“The various impediments listed in s ection 13(1) are circumstances which, as
Professor MM Loubser puts it in his work Extinctive Prescription at 117, 'have in
common some legal or practical problem which makes it difficult or undesirable for a
creditor to institute proceedings for the enforcement of his claim against the debtor'.
See also ABP 4x4 Motor Dealers (Pty) Ltd v IGI Insurance Co Ltd 1999 (3) SA 924
(SCA) at 930I - 931A, where it was said that:
‘(t)he word impediment . . . covers a wide spectrum of situations ranging from
those in which it would not be possible in law for the creditor to sue to those in
which it might be difficult or awkward, but not impossible, to sue'.”
[65] In the case of Mattioda Construction (SA) (Pty) Ltd v Everite Ltd,39 Franklin J.,
gave the following interpretation of section 13(1)(a):
"This means, in my view, that, between the time when a winding -up order has been
granted and the appointment of a liquidator, the company is prevented by the
operation of the Companies Act and of the order of the Court from interrupting
prescription; ie that it is prevented by "superior force" within the meaning of s ection 13
(1)(a) of the Prescription Act from so doing."
(1)(a) of the Prescription Act from so doing."
37 1998 (2) SA 743 (SCA) at 754I.
38 2009 (4) SA 617 (SCA) at para 31.
39 1980 (3) SA 157 (W) at 161F-G.
[66] When I consider the af orementioned authorities , in the circum stances and
facts in casu, I find that Mabuse J’s order is not a superior force for the following
reasons:
(a) I agree with the first defendant’s counsel that Mabuse J’s order
interdicts only the first - and third defendant from doing something, i.e.
the first defendant cannot proceed with the sale until it fulfils certain
obligations and the third defendant cannot issue clearance certificates
until there is compliance with the National Building Regulations and
Building Standards Act . The order does not prevent the plaintiff from
interrupting the prescription through issuing Court proceedings.
(b) Despite Mabus e J’s order, the plaintiff brought the application before
Molahlehi J and when that was unsuccessful, also instituted this action
in which it seeks specific performance by the first defendant of its
obligations under and in terms of the sale agreement . The plaintiff
demonstrably could litigate — it brought the Molahlehi J application and
this very action. That defeats the section 13(1)(a) plea.
(c) The plaintiff’s current action was not met with the suggested special
plea that performance is (at least temporarily) impossible. There is also
no reason to accept that it would have been met by such a plea if it was
brought timeously.
(d) I find it difficult to accept the plaintiff’s “catch 22” speculation that if the
plaintiff instituted proceedings against the first defendant to enforce the
agreement by 24 September 201 8, the claim would have been
dismissed on the merits and that this would have triggered the
operation of sec tion 15(2) of the Act. There is no basis for me to find
that if regard is had to the Mabuse J order, the claim would have been
couched differently on 24 September 2018 from what it was couched
currently on 26 September 2018 . The contention can thus only imply
that the plaintiff is of the view that the current action should be
that the plaintiff is of the view that the current action should be
dismissed on the merits , which begs the question why then these
proceedings in the first place ? Section 13(1)(a) of the Act is concerned
with whether the creditor was prevented from the act of interrupting
prescription (serving process under s ection 15(1)) — not with the
prospects of ultimate success on the merits. The prospect of losing is
legally irrelevant to whether a "superior force" prevented service. The
plaintiff conflates an impediment to interrupting prescription with an
impediment to succeeding.
(e) The plaintiff’s contention is incongruent with the litigation thus far. In the
event that Mabuse J’s order is a superior force as contemplated in
section 13(1), the running of prescription shall not be completed until
one year after the impediment has been removed. It would then not
have matter ed how long it to ok the plaintiff to first compel the first
defendant to comply with the urgent application and remove the
impediment (as it intended doing in the Molahlehi J application and now
again in this action) before it thereafter brought an action with prayer
6.1 and 6.2 of the particulars of claim. Such a process would at least
have been congruent with the plaintiff’s contentio n. Having said that, I
am not convinced that the plaintiff needed to intervene at all to enforce
its contractual right , but this is not an issue I have to decide with
regards to the special plea of prescription and I make no finding in this
regard.
Conclusion, costs and order
[67] In this matter the due date is 24 April 2015 (or 25 September 2015) . The
prescription period under s ection 11(d) is three years using the civilian method of
computation. Completion was at the latest on 25 September 2018 with summons
being served after completion on 3 October 2018.
[68] The first defendant bears the onus to allege and prove the date of inception
and that the prescription period has run . I conclude, that for all the foregoing
reasons, the first defendant has discharged the onus upon it, and the special plea of
reasons, the first defendant has discharged the onus upon it, and the special plea of
prescription must succeed. Although t he claim to intervene is not a debt that can
prescribe, it is contingent upon the plaintiff’s claim for transfer of the Units which has
now become prescribed.
[69] The special plea of res judicata on the other hand must fail.
[70] The principle that costs follow success finds application.
Order:
1. The first and second special pleas are separated in terms of the provisions of
rule 33(4) of the Uniform Rules of Court from the rest of the issues.
2. The plea of res judicata is dismissed.
3. The plea of prescription is upheld with costs.
4. The transfer claim in prayers 6.1 and 6.2 having prescribed, p rayers 1 to 5
disclose no cause of action and serve no purpose and are accordingly
dismissed.
5. The plaintiff’s claim is dismissed with costs, such costs to be on a party and
party basis with counsel’s fees on scale C.
________________________________
F PAUER
ACTING JUDGE OF THE HIGH COURT
GAUTENG DIVISION, PRETORIA
Date of hearing: 10 November 2025
Judgment delivered: 8 June 2026
APPEARANCES:
For plaintiff: J M HOFFMAN
Instructed by: Harris Incorporated, Pretoria
For first defendant: J HERSHENSOHN SC
Instructed by: Du Plessis & Eksteen Attorneys
No appearance for the second and third defendants.