Kosmos v Leopont (20546/2014) [2016] ZASCA 48 (31 March 2016)

Kosmos v Leopont (20546/2014) [2016] ZASCA 48 (31 March 2016)

Prescription for claims under the sale agreements could only commence once the erven were created and transferred, as the agreements were not enforceable until that point. The facilities were ancillary to the main object of the agreements and could not be due before the purchasers were entitled to the erven. There was no express time for performance of the collateral obligations, and no breach could occur prior to the main object being realised. Therefore, the earliest date for prescription to commence was 8 December 2005, when the General Plan was approved and the erven created. The claims had not prescribed when summons was served in August 2008. The special plea of prescription was...

Citation
[2016] ZASCA 48
Parties
Appellant: Kosmos X6 Homeowners Association; Respondent: Leopont 64 Properties (Pty) Ltd; Respondent: Jacobus Jochum Grabe
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 March 2016
Case Number
20546/2014
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria
Outcome
Appeal upheld; special plea of prescription dismissed; matter referred back to trial court for adjudication of all claims.
Judges
Lewis, Willis, Dambuza, Mathopo, Plasket
Legal Topics
Prescription Act, Specific Performance, Rectification of Contract, Town Planning and Township Ordinance, Transfer of Erven
Civil Procedure Land and Property Prescription Act Specific Performance Rectification of Contract Town Planning and Township Ordinance Transfer of Erven

Case Brief

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Parties

Kosmos X6 Homeowners Association

Appellant

Leopont 64 Properties (Pty) Ltd

Respondent

Jacobus Jochum Grabe

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 When does prescription commence for claims of specific performance under a contract of sale where the subject matter (erven) was not yet created at the time of contract conclusion.
  2. 2 Whether the special plea of prescription raised by the respondent is valid given the timing of enforceability of the sale agreements.
  3. 3 Whether the exchange of letters between the parties' attorneys constituted a binding undertaking to perform certain obligations.

Ratio Decidendi

Prescription for claims under the sale agreements could only commence once the erven were created and transferred, as the agreements were not enforceable until that point. The facilities were ancillary to the main object of the agreements and could not be due before the purchasers were entitled to the erven. There was no express time for performance of the collateral obligations, and no breach could occur prior to the main object being realised. Therefore, the earliest date for prescription to commence was 8 December 2005, when the General Plan was approved and the erven created. The claims had not prescribed when summons was served in August 2008. The special plea of prescription was...

Court Disposition

Appeal upheld; special plea of prescription dismissed; matter referred back to trial court for adjudication of all claims.

Orders

  • The appeal is upheld with costs, including the costs of two counsel.
  • The order of the trial court is set aside and replaced with: 'The special plea of prescription is dismissed with costs, including the costs of two counsel.'