Pretorius v Bedwell (659/2020) [2022] ZASCA 4 (11 January 2022)

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[2022] ZASCA 4
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Pretorius v Bedwell (659/2020) [2022] ZASCA 4 (11 January 2022)

THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 659/2020
In
the matter between:
DAVE
PRETORIUS

APPELLANT
and
KENNETH
BEDWELL
RESPONDENT
Neutral
citation:
Dave
Pretorius v Kenneth Bedwell
(659/2020)
[2022] ZASCA 4
(11 January 2022)
Coram:
VAN DER MERWE, MOKGOHLOA and HUGHES JJA and
PHATSHOANE and WEINER AJJA
Heard:
2 November 2021
Delivered:
This judgment was handed down electronically by
circulation to the parties’ legal representatives via email. It has
been published
on the Supreme Court of Appeal website and released to
SAFLII. The date and time for hand-down is deemed to be 9h45 on 11
January
2022.
Summary:
Prescription – of damages claim based
on acceptance of repudiation of contract – when prescription
commences to run – innocent
party’s cause of action for damages
accrues when election to treat the contract as at an end is
communicated to repudiating party
– special plea correctly
dismissed.
ORDER
On
appeal from:
Gauteng Division of the
High Court, Johannesburg (Wepener, Fisher and Mahalelo JJ, sitting as
court of appeal):
The
appeal is dismissed with costs.
JUDGMENT
Mokgohloa JA (Van Der Merwe
and Hughes JJA and Phatshoane and Weiner AJJA concurring)
[1]
This is an appeal against the judgment of
the Full Court of the Gauteng Division of the High Court,
Johannesburg (the full court),
upholding the respondent’s appeal
and substituting the trial court’s order with one dismissing the
appellant’s special plea
of prescription with costs. The appeal is
with the special leave of this Court.
[2]
The background of the matter is as follows. The respondent, Mr
Kenneth Bedwell, was the owner of a holiday home in Oyster Bay in the
Eastern Cape (the property). During 2007, he needed money to complete
a guest house project he had started. In order to gain access
to
further funds, Mr Bedwell requested the appellant, Mr Dave Pretorius
(who was his brother-in-law), to provide him with a loan
against a
tender of the property as security. In terms of a written agreement
that was subsequently rectified by agreement, they
eventually agreed
that Mr Pretorius would purchase the property for an amount of
R1 850 000. Mr Pretorius would obtain
a loan from a bank in
the amount of R1 650 000 against the registration of a
mortgage bond over the property. Mr Bedwell
would continue to occupy
the property and would remain liable to maintain the property at his
own cost and pay all rates and taxes.
As soon as Mr Bedwell qualified
for a mortgage loan in his own name, that would make it possible to
cancel the mortgage bond registered
over the property in the name of
Mr Pretorius, Mr Pretorius would transfer the property back into the
name of Mr Bedwell. Mr Pretorius
paid the purchase price and the
property was registered into his name on 18 October 2007.
[3]
Soon thereafter the relationship between Mr
Bedwell and Mr Pretorius deteriorated. On 8 April 2008, Mr Bedwell
visited the property
in the company of his friends. When Mr Pretorius
learned that Mr Bedwell was at the property, he made a telephone call
to Mr Bedwell
and instructed him to leave the property forthwith.
However, Mr Bedwell and his friends only left the property the next
morning.
[4]
On 8 April 2008, Mr Bedwell wrote a letter to Mr Pretorius raising
his concern relating to Mr Pretorius’ attitude and stated the
following:
‘
(1)
I suggest that after your threats this afternoon that we set up
a polygraph test between the three of us and we have one
[take]
statements through your lawyers and my lawyer analysed.
NB
VERBAL agreements are
binding.
(2)
All ASSETS in the house belong to me plus the agreement of
SALE.
(3)
Please reply on the above fax no.’ (Original emphasis.)
[5]
Mr Pretorius did not respond to Mr Bedwell’s letter. He instead
sent a letter through his attorney to the security company
responsible for security at the property and to Chas Everitt real
estate
agents, informing them that Mr Bedwell would no longer be
entitled to occupy the property. Indeed, Mr Bedwell received a
telephone
call from the security company wherein he was informed of
the letter the security company had received instructing it to deny
him
access to the property.
[6]
During 2009, Mr Pretorius sold the property to a third party.
Mr
Bedwell only learned of the sale after his son had attended a
birthday party at Mr Pretorius’ house on 8 July 2010. The son
noticed furniture at Mr Pretorius’ house which had been in the
property. Upon making enquiries, Mr Pretorius told him that indeed
he
had sold the property. The son informed Mr Bedwell that evening about
the sale of the property.
[7]
On 11 October 2011, Mr Bedwell instituted action in the Gauteng
Division of the High Court, Pretoria (the trial court) against Mr
Pretorius for damages in the amount of R2 040 000. He based his
claim
on the repudiation of the contract by Mr Pretorius, in that he had
sold the property and the furniture. In paragraph 12 of
the
particulars of claim, Mr Bedwell stated the following:
‘
On
or about 2009, [Mr Pretorius] repudiated the contract between the
parties by selling the Oyster Bay property to a third party .
. .
alternatively, on or about May 2009, [Mr Pretorius] evicted [Mr
Bedwell] from the Oyster Bay property, alternatively denied [Mr
Bedwell] further use of the Oyster Bay property, which repudiation
[Mr Bedwell] has accepted, alternatively, which is accepted
herewith.’
[8]
Mr Pretorius defended the action and raised a special plea of
prescription. He stated in his special plea that he had repudiated
the contract on 8 April 2008 and since Mr Bedwell issued summons
on
11 October 2011, the claim prescribed in terms of
s 11
of the
Prescription Act 68 of 1969
. By agreement the special plea proceeded
to trial as a separated issue. The trial court upheld the special
plea and dismissed Mr
Bedwell’s claim with costs. Leave to appeal
was refused. This Court granted Mr Bedwell leave to appeal to the
full court. As I
have said, the full court overturned the trial
court’s decision and replaced it with an order dismissing the
special plea of prescription
with costs. The issue on appeal is
whether the order of the full court was correct.
[9]
The onus was on Mr Pretorius to prove that the claim of Mr Bedwell
had prescribed. This included proof of when prescription had
commenced. As I have said, Mr Pretorius pleaded that he had
repudiated
the contract on 8 April 2008 when he allegedly evicted Mr
Bedwell from the property. According to him, this was the date upon
which
the debt arose, and Mr Bedwell was, at that date, in a position
to reject the repudiation or accept it, cancel the contract and claim
damages. Mr Pretorius did not plead that the repudiation had been
accepted or that the contract was cancelled. The separated issue
was
formulated accordingly.
[10]
It is settled law that
repudiation of a contract occurs where one party to a contract,
without lawful grounds, indicates to the other
party, whether by
words or conduct, a deliberate and unequivocal intention to no longer
be bound by the contract.
[1]
Then the innocent party will be entitled to either: (i) reject the
repudiation and claim specific performance; or (ii) accept the
repudiation, cancel the contract and claim damages. If he or she
elects to accept the repudiation, the contract comes to an end upon
the communication of the acceptance of the repudiation to the party
who has repudiated. Only then does a claim for damages arise.
Accordingly, prescription commences to run from that date.
[11]
In my view, the special plea of prescription had to fail for a
variety of reasons.
First, as I have demonstrated, in the absence of
an allegation that the repudiation of 8 April 2008 had been accepted
and the contract
cancelled, the special plea did not disclose a
defence in law. Secondly, in any event, the trial court did not make
a credibility
finding against Mr Bedwell and his evidence had to be
accepted for purposes of determination of the appeal. On his evidence
it is
doubtful that what occurred on 8 April 2008 objectively
amounted to a repudiation by Mr Pretorius, but even so, Mr Bedwell
clearly
did not accept such a repudiation on that date. It follows
that Mr Pretorius did not prove that the running of prescription
commenced
on 8 April 2008 as alleged.
[12]
For these reasons I find that Mr Pretorius’ special plea did not
disclose a defence
in law and failed on the facts. The full court was
correct in concluding that it had to be dismissed.
[13]
In the result, the appeal is dismissed with costs.
F E MOKGOHLOA
JUDGE OF APPEAL
Appearances
For
appellant:

B Stoop SC
Instructed
by:

Pennells Attorneys, Pretoria
Phatshoane Henney Attorneys,
Bloemfontein
For
respondent:
J P Vorster SC
Instructed
by:

Lourens Attorneys, Brits
Symington De Kok Attorneys,
Bloemfontein.
[1]
Nash
v Golden Dumps (Pty) Ltd
[1985] ZASCA 6
;
[1985]
2 All SA 161
(A);
1985 (3) SA 1
(A) at 22D-F