Stemmet and Another v Mokhethi and Another

The respondents (Mr and Mrs Mokhethi) purchased a property from the appellants (Mr and Mrs Stemmet) in Fichardt Park, Bloemfontein for R1 290 000 on 24 May 2013. Transfer and occupation occurred on 22 July 2013. Several months after taking occupation but prior to 24 June 2014, the respondents noticed structural cracks throughout the property, including in bedrooms, walls, ceilings, and windows detaching from walls. On 24 June 2014, they lodged a claim with Absa Bank (their insurer/mortgagee). On 12 August 2014, Absa declined the claim, advising that the defects were old and gradual, had been previously patched, and were caused by expansion and retraction of clay upon which the property was built. On 19 July 2017, the respondents issued summons claiming damages of R128 423.26, alleging fraudulent non-disclosure and/or concealment of latent defects by the appellants. The first respondent was a qualified engineer who testified that he noticed patchwork covering previous cracks before lodging the Absa claim and understood the structural nature of the cracks. The appellants raised a special plea of prescription.

• When does prescription commence to run in a delictual claim for fraudulent non-disclosure and/or concealment of latent defects in property?
• What constitutes the 'minimum facts' required under section 12(3) of the Prescription Act 68 of 1969 for prescription to commence running?
• Whether knowledge of the cause of defects is necessary for prescription to commence, or whether knowledge of the existence of defects and evidence of concealment is sufficient?
• Whether a creditor must know the technical cause of damage before having sufficient knowledge to institute action?

The appeal was upheld with costs. The order of the Full Court was set aside and replaced with an order upholding the appeal to the Full Court with costs. The magistrate's court order was set aside and replaced with an order upholding the defendants' special plea of prescription and dismissing the plaintiffs' claim with costs.

In a delictual claim for fraudulent concealment of latent property defects, prescription under section 12(3) of the Prescription Act 68 of 1969 commences when the creditor has knowledge of: (1) the identity of the debtor; and (2) the minimum facts from which the debt arises - namely, the existence of defects and evidence suggesting concealment (such as patchwork covering previous repairs). Knowledge of the technical or scientific cause of the defects is not required for prescription to commence running. The requirements of fault and unlawfulness are legal conclusions to be drawn from the facts, not factual ingredients of the cause of action. A creditor is not required to have all the evidence necessary to prove the case comfortably, but only the minimum facts necessary to institute action. A creditor cannot postpone prescription by claiming lack of technical, scientific or legal knowledge of causation once the factual basis for the claim is known or could reasonably have been known.

The Court implicitly endorsed the principle from Mtokonya v Minister of Police that requiring creditors to have knowledge that conduct is wrongful and actionable in law (as opposed to knowledge of the factual basis) would render prescription so ineffective it may as well be abolished, as it would exclude the vast majority of non-legally trained persons from the operation of prescription. The judgment emphasized that if creditors could postpone prescription until receiving expert opinions on technical causation, they could 'by supine inaction arbitrarily and at will postpone the commencement of prescription', undermining the purpose of prescription legislation. The Court noted that the appellants did not appeal the finding on the merits, and the parties had settled quantum at R128 423.26, indicating that had prescription not applied, the appellants would have been liable.

This judgment clarifies and reaffirms the principles governing when prescription commences under sections 12(2) and 12(3) of the Prescription Act 68 of 1969. It establishes that creditors need only have knowledge of the minimum facts necessary to institute action, not technical or expert knowledge of causation. The judgment reinforces that the requirements of fault and unlawfulness are legal conclusions, not factual ingredients of a cause of action. The case is significant for property law disputes involving latent defects, making clear that prescription begins when a purchaser discovers defects and evidence of concealment, not when expert opinions confirm technical causes. The judgment prevents creditors from postponing prescription indefinitely by claiming they lack technical or legal knowledge, thereby maintaining the effectiveness of prescription as a legal institution. It also clarifies that constructive knowledge under the 'reasonable care' proviso in section 12(3) requires what a reasonable person would do, not what a legal or technical expert would know.