Feedpro Animal Nutrition (Pty) Ltd v Nienaber NO and Another

Feedpro Animal Nutrition (Pty) Ltd instituted action against the trustees of the Nienaber Trust for payment of R502 895 as the purchase price of fertiliser delivered to the Trust. The Trust counterclaimed for damages of R1 086 650 allegedly suffered due to Feedpro’s late delivery of fertiliser, which was delivered on 5 January 2010 instead of by 22 December 2009 as agreed. Feedpro raised a special plea that the Trust’s counterclaim had prescribed. By agreement, the special plea was separated under rule 33(4) and determined on a stated case of agreed facts. The trial court dismissed the special plea, holding that the Trust only became aware of its damages in March 2010. Feedpro appealed, contending that prescription commenced earlier, before 26 February 2010.

The appeal was dismissed with costs, but the order of the trial court was substituted. The dismissal of the special plea of prescription was set aside, and the matter was remitted to the Free State Division of the High Court for determination of the special plea together with the remaining issues after the leading of evidence.

The case is significant for clarifying the proper application of rule 33 stated cases and the separation of issues, emphasising that courts must not decide special pleas of prescription on inadequately stated agreed facts. It reinforces the principle that prescription disputes often require evidence and cautions against assuming facts not contained in a stated case.