Stemmet and Another v Mokhethi and Another

The respondents purchased a residential property from the appellants in May 2013 and took transfer and occupation in July 2013. Several months later, before June 2014, serious structural cracks and other defects became apparent throughout the property. The respondents discovered visible patchwork suggesting prior repairs. Believing the property to be structurally unsound, they lodged an insurance claim with Absa on 24 June 2014. On 12 August 2014, Absa repudiated the claim, stating that the damage was old, gradual, previously patched, and caused by active clay. In July 2017, the respondents issued summons in the magistrate’s court, alleging fraudulent non-disclosure and/or concealment of latent defects by the appellants. The appellants raised a special plea of prescription, contending that the respondents had knowledge of the defects by June 2014 and that the claim had prescribed.

The appeal was upheld with costs. The order of the full court was set aside and replaced with an order upholding the appellants’ special plea of prescription and dismissing the respondents’ claim with costs.

The case reaffirms and clarifies South African law on prescription by confirming that knowledge of the cause of damage or expert opinions is not required for prescription to commence. It underscores that creditors must act once they have the minimum factual knowledge to institute proceedings, reinforcing certainty and finality in civil litigation.