Stanley Ellias Leketi v Mogale Andrew Tladi N.O.

The appellant claimed that immovable property, Nooitgedacht No. 287 in the District of Rustenburg, rightfully belonged to his father, George Mogale, who died on 5 January 1966. The appellant alleged that on 25 June 1969, his grandfather, Albert Mogale, fraudulently caused the property to be transferred into his own name by representing to the Registrar of Deeds that he was the only male heir of George and entitled to the property under Black custom. Albert failed to disclose that George was survived by three children from his marriage with Safira Mogale: the appellant (born 7 April 1959), Audrey (born 17 February 1953), and Merona (born 22 August 1955). On 18 June 1974, Albert executed a will bequeathing the property to the second and third respondents and two others (now deceased), excluding the appellant and his sisters. The appellant only instituted action in February 2004, although the alleged fraud occurred on 25 June 1969. The appellant was 10 years old at the time of the fraud.

• Whether the appellant's claim for declaratory and vindicatory relief had become prescribed in terms of the Prescription Act 68 of 1969
• Whether the appellant had knowledge or could have acquired knowledge of the fraud by exercising reasonable care as required by section 12(3) of the Prescription Act
• Whether the effect of the appellant's minority delayed the completion of prescription in terms of section 13 of the Prescription Act
• Whether fraud constitutes a continuing wrong for purposes of prescription

The appeal was dismissed with costs.

For purposes of section 12(3) of the Prescription Act 68 of 1969, 'deemed knowledge' requires the application of an objective standard: a creditor is deemed to have knowledge if he could have acquired it by exercising reasonable care. The test is what a reasonable person in the creditor's position would have done to acquire knowledge of the identity of the debtor and the facts from which the debt arises. Fraud does not constitute a continuing wrong for purposes of prescription. Fraud is an act of deceit which results in a single completed act (in this case, transfer and registration) which constitutes the cause of action and triggers the running of prescription from that date. Where a creditor is a minor at the time the debt becomes due, section 13 of the Prescription Act delays the completion of prescription until one year has elapsed after the creditor attains majority (at the time, age 21).

The court made observations about the trial judge's findings regarding the probabilities that the appellant and his sisters knew or were told before they became majors that their right to the property stemmed from the fact that the farm had belonged to their father. The court cited various factors supporting this conclusion, including that George had frequented the farm, family members had visited the property and claimed items belonging to their father, an uncle had undertaken to ensure they received what rightfully belonged to them, and they had independently reported Albert's estate to the Master. While these observations supported the overall conclusion, the court emphasized that the real question was whether the appellant could have acquired knowledge by exercising reasonable care under the objective standard required by section 12(3).

This case is significant for clarifying the application of sections 12(3) and 13 of the Prescription Act 68 of 1969. It confirms that the 'deemed knowledge' provision in section 12(3) requires an objective standard of 'reasonable care' rather than a subjective evaluation of a creditor's actual knowledge. The case illustrates that a creditor cannot rely on lack of actual knowledge when reasonable steps could have been taken to acquire the necessary knowledge to institute a claim. It also clarifies that fraud does not constitute a continuing wrong for prescription purposes, but rather constitutes a single completed act that triggers the running of prescription. The judgment serves as a warning that dilatory conduct and failure to take reasonable steps to pursue one's rights, even where fraud is alleged, will not prevent the operation of prescription.