Feedpro Animal Nutrition (Pty) Ltd v Nienaber NO

Feedpro Animal Nutrition (Pty) Ltd instituted action in November 2012 against the trustees of the Nienaber Trust for payment of R502,895 for fertilizer products provided to the Trust. The Trust counterclaimed for R1,086,650 in damages for late delivery of fertilizer products. The Trust ordered fertilizer from Feedpro on 1 December 2009, which was to be delivered by 22 December 2009 but was only delivered on 5 January 2010. The Trust sent letters on 22 January 2010 and 11 February 2010 indicating it had suffered damages but that the extent could not be accurately determined at that stage. On 26 February 2010, the Trust appointed an assessor to conduct an assessment of the loss. The Trust's counterclaim for damages was served on Feedpro on 27 February 2013. Feedpro raised a special plea of prescription which was separated from the remaining issues by the trial court and adjudicated upon by reference to a written statement of agreed facts in the form of a stated case.

• Whether the Trust's counterclaim had prescribed
• When did prescription commence to run in respect of the Trust's counterclaim
• Whether the Trust had acquired knowledge of the debt in terms of section 12(3) of the Prescription Act 68 of 1969 before 26 February 2010
• Whether the agreed facts in the stated case were adequate to determine when prescription commenced to run
• Whether the trial court erred in separating the special plea from the remaining issues in circumstances where the agreed facts were inadequate and evidence needed to be led

The appeal was dismissed with costs. However, the order of the trial court dismissing Feedpro's special plea of prescription was set aside. The matter was remitted to the Free State Division of the High Court for determination of the special plea of prescription together with the remaining issues in light of evidence to be led.

The binding legal principles established are: (1) A stated case in terms of Rule 33 of the Uniform Rules must set out adequate agreed facts for determination of the issues in question - deciding a stated case on inadequate facts defeats the purpose of the rule. (2) A court adjudicating a dispute on agreed facts may not assume facts outside the scope of the agreed facts to compensate for inadequacies. (3) For purposes of section 12(3) of the Prescription Act 68 of 1969, knowledge requires justified, true belief - mere opinion, supposition, tentative assertion or suspicion is insufficient to constitute the knowledge that triggers prescription running. (4) A trial court should not separate a special plea from remaining trial issues under Rule 33(4) without proper consideration of whether the agreed facts are adequate and whether evidence needs to be led. (5) The defendant bears the onus of proving when the plaintiff acquired or should be deemed to have acquired knowledge to institute a claim for prescription purposes.

The Court expressed regret that despite ample guidance from the Supreme Court of Appeal in previous cases (Denel (EDMS) Bpk v Vorster and Absa Bank Ltd v Bernert), the trial court deemed it appropriate to separate the special plea from the remaining issues without first applying its mind to whether such separation was convenient and appropriate in circumstances where the agreed facts were inadequate and evidence needed to be led. The Court also commented on the logical probabilities, noting it would have been impossible for the Trust to have knowledge of any loss prior to 26 February 2010 since the fertilizer could only have been applied after delivery on 5 January 2010, after which the crop would continue growing until harvest months later - only at harvest could a determination be made as to whether loss was suffered.

This case is significant in South African law for providing important guidance on: (1) the proper use of Rule 33(4) of the Uniform Rules of Court regarding separation of issues for trial; (2) the requirements for adequate agreed facts in a stated case under Rule 33; (3) the nature of "knowledge" required under section 12(3) of the Prescription Act 68 of 1969 to trigger the running of prescription; and (4) the principle that a stated case must be decided on agreed facts and permissible inferences therefrom, not on assumptions to compensate for inadequate facts. The judgment reinforces that trial courts should not separate special pleas from the main issues where evidence needs to be led to properly determine them.