Hurry up and do not wait
By Charl Theron and Kara Fischer
Frieslaar NO and Others v Ackerman and Another, a judgment of the Supreme Court of Appeal (SCA) on 2 February 2018, dealt with prescription of the obligation of the seller of immovable property to transfer the property to the purchaser. If a debt prescribes, the creditor can no longer enforce the debt. And a “debt” is something (such as money, goods, or services) that one person is under an obligation to pay or render to another.
Save for several exceptions, such as debts owing to the State, prescription of a debt commences to run as soon as the debt becomes claimable; and three years thereafter the debt prescribes.
The purchaser and the seller signed four deeds of sale on 25 February 2010. They had some disputes along the way, and the seller did not transfer the properties to the purchaser. So the latter sued the former on 7 March 2013. On the merits, the seller had no defence. However, the seller pleaded prescription. Note the purchaser sued three years and 11 days after signature of the deeds of sale.
The prescription plea failed in the Court of first instance (the purchaser won). The seller appealed to a full bench (three Judges), and won. The purchaser then appealed to the SCA.
The main question in the SCA was on which date the purchaser became entitled to claim transfer of the properties. The SCA held that the purchaser had every right, had it elected to do so, to claim transfer of the properties immediately upon the conclusion of the deeds of sale (ie on 25 February 2010). So, the purchaser lost.
The end result seems inequitable. There are several circumstances that delay the completion of prescription and that interrupt prescription. It would be surprising if none of such circumstances could have assisted the purchaser in overcoming the plea of prescription. Perhaps the purchaser did not investigate the facts with enough vigour.