Drennan Maud & Partners v Town Board of the Township of Pennington (8161/92) [1998] ZASCA 29; 1998 (3) SA 200 (SCA); [1998] 2 All SA 571 (A) (27 March 1998)

Drennan Maud & Partners v Town Board of the Township of Pennington (8161/92) [1998] ZASCA 29; 1998 (3) SA 200 (SCA); [1998] 2 All SA 571 (A) (27 March 1998)

The Supreme Court of Appeal held that the Town Board, by 18 November 1989 at the latest, had actual or deemed knowledge of the design defect in the retaining wall constructed by the appellant. Observable damage, including substantial subsidence and erosion, was present and a reasonable person in the Town Board's position would have deduced that the design was faulty and that the costs of building the wall were wasted. The court found that prescription commenced before summons was issued on 20 November 1992, rendering the Town Board's claim prescribed. The court rejected the argument that knowledge of only part of the defect delayed prescription, holding that knowledge of the defect in one...

Citation
[1998] ZASCA 29
Parties
Appellant: Drennan Maud & Partners; Respondent: Town Board of the Township of Pennington
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 March 1998
Case Number
8161/92
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Special Plea of Prescription
Outcome
Appeal allowed; special plea of prescription upheld; respondent's claim dismissed with costs, including costs of two counsel.
Judges
Van Heerden DCJ, Harms JA, Olivier JA, Scott JA, Zulman JA
Legal Topics
Prescription Act Section 12, Breach of Contract, Professional Negligence, Damages for Wasted Expenditure
Civil Procedure Land and Property Prescription Act Section 12 Breach of Contract Professional Negligence Damages for Wasted Expenditure

Case Brief

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Parties

Drennan Maud & Partners

Appellant

Town Board of the Township of Pennington

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Special Plea of Prescription

Legal Issues

  1. 1 Whether the Town Board had actual or deemed knowledge of the facts from which the debt arose before 20 November 1989, for purposes of prescription under section 12(3) of the Prescription Act.
  2. 2 Whether the breach of contract claim against the appellant became prescribed before summons was issued.
  3. 3 Whether knowledge of one aspect of a design defect suffices to trigger prescription for the entire claim.

Ratio Decidendi

The Supreme Court of Appeal held that the Town Board, by 18 November 1989 at the latest, had actual or deemed knowledge of the design defect in the retaining wall constructed by the appellant. Observable damage, including substantial subsidence and erosion, was present and a reasonable person in the Town Board's position would have deduced that the design was faulty and that the costs of building the wall were wasted. The court found that prescription commenced before summons was issued on 20 November 1992, rendering the Town Board's claim prescribed. The court rejected the argument that knowledge of only part of the defect delayed prescription, holding that knowledge of the defect in one...

Court Disposition

Appeal allowed; special plea of prescription upheld; respondent's claim dismissed with costs, including costs of two counsel.

Orders

  • The appeal is allowed with costs and the cross-appeal dismissed with costs, such costs to include the costs attendant upon the employment of two counsel.
  • The order of the court a quo is set aside and replaced by the following order: 'The special plea is upheld and the plaintiff's claim is dismissed with costs, such costs to include the costs of two counsel.'