Ndara and Another v Weir Investments (Pty) Limited and Others (3180/2013) [2015] ZAECGHC 12 (5 March 2015)

Ndara and Another v Weir Investments (Pty) Limited and Others (3180/2013) [2015] ZAECGHC 12 (5 March 2015)

The court found that the plaintiff had knowledge of all material facts necessary to institute his claim as early as 2004, and at the latest by 2007, when he had already litigated on the same facts and received legal advice regarding the alleged fraud. The document discovered in August 2013 did not constitute new or material information that would delay the running of prescription under section 12(3) of the Prescription Act. The plaintiff's cause of action arose when the contract was concluded and the purchase price fixed. Accordingly, the claims had prescribed by November 2007, and the special plea of prescription was upheld.

Citation
[2015] ZAECGHC 12
Parties
Plaintiff: Mzukisi Lubabalo Ndara; Plaintiff: Unathi Ndara; Defendant: Weir Investments (Pty) Limited; Defendant: First Rand Bank Limited t/a Wesbank; Defendant: Jaen Van Aardt
Court
Eastern Cape High Court, Grahamstown
Jurisdiction
South Africa
Judgment Date
5 March 2015
Case Number
3180/2013
Procedural Posture
Civil Trial / Special Plea of Prescription; Judgment on Prescription
Outcome
The defendant's special plea of prescription is upheld. The plaintiff's claim is dismissed with costs, including wasted costs of 2 March 2015.
Judges
E Revelas
Legal Topics
Prescription Act, Fraudulent Misrepresentation, Instalment Sale Agreement, Extinctive Prescription, Contract Cancellation, Delictual Damages
Civil Procedure Delict Commercial and Corporate Prescription Act Fraudulent Misrepresentation Instalment Sale Agreement Extinctive Prescription Contract Cancellation +1 more

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Parties

Mzukisi Lubabalo Ndara

Plaintiff

Unathi Ndara

Plaintiff

Weir Investments (Pty) Limited

Defendant

First Rand Bank Limited t/a Wesbank

Defendant

Jaen Van Aardt

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription; Judgment on Prescription

Legal Issues

  1. 1 Whether the plaintiff's claims arising from the sale of the vehicle have prescribed under section 11(d) of the Prescription Act.
  2. 2 Whether section 12(3) of the Prescription Act delays the commencement of prescription due to late discovery of relevant facts.
  3. 3 Whether the plaintiff had sufficient knowledge of the facts giving rise to his cause of action before August 2013.

Ratio Decidendi

The court found that the plaintiff had knowledge of all material facts necessary to institute his claim as early as 2004, and at the latest by 2007, when he had already litigated on the same facts and received legal advice regarding the alleged fraud. The document discovered in August 2013 did not constitute new or material information that would delay the running of prescription under section 12(3) of the Prescription Act. The plaintiff's cause of action arose when the contract was concluded and the purchase price fixed. Accordingly, the claims had prescribed by November 2007, and the special plea of prescription was upheld.

Court Disposition

The defendant's special plea of prescription is upheld. The plaintiff's claim is dismissed with costs, including wasted costs of 2 March 2015.

Orders

  • The defendant's special plea is upheld.
  • The plaintiff's claim is dismissed with costs.