Claasen v Bester in re: Bester v Claasen and Another [2010] ZAFSHC 143 (15 November 2010)

Claasen v Bester in re: Bester v Claasen and Another [2010] ZAFSHC 143 (15 November 2010)

After considering the arguments and the judgment, the court found that although the original decision addressed all relevant aspects thoroughly, there remains a reasonable possibility that another court may reach a different conclusion regarding both the legal principles and factual findings, particularly on whether the nullity or voidability of the contract is a 'fact' for prescription purposes and whether the respondent/plaintiff had the requisite knowledge. Given the importance and potential impact of the legal question on prescription in contractual claims, leave to appeal should be granted to the Supreme Court of Appeal for clarity and final determination.

Citation
[2010] ZAFSHC 143
Parties
Applicant: Evert Bakkes Claasen; Respondent: Michiel Daniël Bester; Defendant: Evert Bakkes Claasen; Defendant: Registrateur van Aktes, Bloemfontein; Plaintiff: Michiel Daniël Bester
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
15 November 2010
Case Number
6686/2007
Procedural Posture
Leave to Appeal / Application for Leave to Appeal Against Judgment and Order on Special Plea of Prescription
Outcome
Leave to appeal granted to the Supreme Court of Appeal against the whole judgment and order delivered on 23 June 2010 under case number 6686/2007.
Judges
C. Van Zyl, R
Legal Topics
Prescription Act, Special Plea of Prescription, Contract Nullity, Sale of Immovable Property
Civil Procedure Land and Property Prescription Act Special Plea of Prescription Contract Nullity Sale of Immovable Property

Case Brief

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Parties

Evert Bakkes Claasen

Applicant

Michiel Daniël Bester

Respondent

Evert Bakkes Claasen

Defendant

Registrateur van Aktes, Bloemfontein

Defendant

Michiel Daniël Bester

Plaintiff

Procedural Posture

Leave to Appeal / Application for Leave to Appeal Against Judgment and Order on Special Plea of Prescription

Legal Issues

  1. 1 Whether the nullity or voidability of the sale contract constitutes a 'fact' for purposes of section 12(3) of the Prescription Act, 68 of 1969.
  2. 2 Whether the plaintiff/respondent had knowledge of the facts giving rise to the invalidity of the contract more than three years before service of summons, or could reasonably have acquired such knowledge.

Ratio Decidendi

After considering the arguments and the judgment, the court found that although the original decision addressed all relevant aspects thoroughly, there remains a reasonable possibility that another court may reach a different conclusion regarding both the legal principles and factual findings, particularly on whether the nullity or voidability of the contract is a 'fact' for prescription purposes and whether the respondent/plaintiff had the requisite knowledge. Given the importance and potential impact of the legal question on prescription in contractual claims, leave to appeal should be granted to the Supreme Court of Appeal for clarity and final determination.

Court Disposition

Leave to appeal granted to the Supreme Court of Appeal against the whole judgment and order delivered on 23 June 2010 under case number 6686/2007.

Orders

  • Leave is granted to the applicant/first defendant to appeal to the Supreme Court of Appeal against the whole judgment and order delivered on 23 June 2010 under case number 6686/2007.
  • The costs of the application for leave to appeal are costs in the appeal.