De Jager N.O and Another v Van Onselen N.O and Another (CA248/2017) [2019] ZAECGHC 7 (5 February 2019)

De Jager N.O and Another v Van Onselen N.O and Another (CA248/2017) [2019] ZAECGHC 7 (5 February 2019)

The court found that, given the family context of the transaction and the absence of agreed terms and conditions for the loan, the parties intended that demand would be a condition precedent for the debt to become due. The evidence showed that Rose did not expect payment or demand accounting while the prevailing circumstances continued, and his inaction was consistent with the parties' intention. The sequestration of Rose's estate changed the circumstances, vesting the estate in the appellants, who then acted in the interests of creditors. The court disagreed with the court a quo's finding that a reasonable time for demand was 12 months from registration of transfer, holding instead that...

Citation
[2019] ZAECGHC 7
Parties
Appellant: Werner De Jager N.O.; Appellant: Sean Mario Johnson N.O.; Respondent: Pfeifer Van Onselen N.O.; Respondent: Susara Lovina Van Onselen N.O.
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
5 February 2019
Case Number
CA248/2017
Procedural Posture
Civil Appeal / Appeal Against Judgment Upholding a Plea of Prescription
Outcome
Appeal succeeds; order of the court a quo upholding the plea of prescription is set aside.
Judges
J M Roberson, N G Beshe, G N Z Mjali
Legal Topics
Prescription Act, Loan Repayable on Demand, Contractual Terms, Family Trust Transaction, Accounting and Debatement
Civil Procedure Commercial and Corporate Prescription Act Loan Repayable on Demand Contractual Terms Family Trust Transaction Accounting and Debatement

Case Brief

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Parties

Werner De Jager N.O.

Appellant

Sean Mario Johnson N.O.

Appellant

Pfeifer Van Onselen N.O.

Respondent

Susara Lovina Van Onselen N.O.

Respondent

Procedural Posture

Civil Appeal / Appeal Against Judgment Upholding a Plea of Prescription

Legal Issues

  1. 1 When did prescription begin to run in respect of the appellants' claim for the unpaid balance of the purchase price and accounting?
  2. 2 Was demand an essential element of the appellants' cause of action, thereby deferring the running of prescription until demand was made?
  3. 3 Did the parties intend that demand would be a condition precedent for the debt to become due?

Ratio Decidendi

The court found that, given the family context of the transaction and the absence of agreed terms and conditions for the loan, the parties intended that demand would be a condition precedent for the debt to become due. The evidence showed that Rose did not expect payment or demand accounting while the prevailing circumstances continued, and his inaction was consistent with the parties' intention. The sequestration of Rose's estate changed the circumstances, vesting the estate in the appellants, who then acted in the interests of creditors. The court disagreed with the court a quo's finding that a reasonable time for demand was 12 months from registration of transfer, holding instead that...

Court Disposition

Appeal succeeds; order of the court a quo upholding the plea of prescription is set aside.

Orders

  • The appeal succeeds with costs.
  • The order of the court a quo upholding the plea of prescription and dismissing the appellants' claims with costs is set aside and replaced with: 'The special plea of prescription is dismissed with costs.'