Stemmet and Another v Mokhethi and Another (A21/2021) [2022] ZAFSHC 55; [2022] 2 All SA 896 (FB) (17 March 2022)

Stemmet and Another v Mokhethi and Another (A21/2021) [2022] ZAFSHC 55; [2022] 2 All SA 896 (FB) (17 March 2022)

The majority held that prescription did not begin to run until the respondents received the Absa Insurance letter on 12 August 2014, which revealed the latent nature of the defects and prior patchwork. Until then, the respondents lacked the minimum facts necessary to institute action, including the cause of the defects and the identity of the debtor. The court found that the appellants, as sellers, deliberately concealed the latent defects by filling cracks and painting over them, amounting to fraudulent misrepresentation. This conduct deprived them of protection under the voetstoots clause. The respondents' expert evidence was unchallenged and supported the finding that the defects were...

Citation
[2022] ZAFSHC 55
Parties
Appellant: Gideon Jakobus Petrus Stemmet; Appellant: Elaine Stemmet; Respondent: Tselisa James Mokhethi; Respondent: Mmakwaleng Naomi Mokhethi
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
17 March 2022
Case Number
A21/2021
Procedural Posture
Civil Appeal / Appeal From Magistrate's Court Judgment
Outcome
Appeal dismissed with costs; the order of the Magistrate's Court stands.
Judges
MBHELE, DAFFUE, MATSHAYA
Legal Topics
Latent Defects, Fraudulent Misrepresentation, Voetstoots Clause, Prescription Act Section 12 3, Burden of Proof, Damages Quantification
Land and Property Civil Procedure Delict Latent Defects Fraudulent Misrepresentation Voetstoots Clause Prescription Act Section 12 3 Burden of Proof +1 more

Case Brief

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Parties

Gideon Jakobus Petrus Stemmet

Appellant

Elaine Stemmet

Appellant

Tselisa James Mokhethi

Respondent

Mmakwaleng Naomi Mokhethi

Respondent

Procedural Posture

Civil Appeal / Appeal From Magistrate's Court Judgment

Legal Issues

  1. 1 Whether the respondents' claim for damages based on latent defects in the property had prescribed at the time of institution of action.
  2. 2 Whether the appellants fraudulently concealed latent defects and are deprived of protection under the voetstoots clause.
  3. 3 Whether the trial court erred in its factual findings and credibility assessments, particularly regarding the second appellant's evidence.

Ratio Decidendi

The majority held that prescription did not begin to run until the respondents received the Absa Insurance letter on 12 August 2014, which revealed the latent nature of the defects and prior patchwork. Until then, the respondents lacked the minimum facts necessary to institute action, including the cause of the defects and the identity of the debtor. The court found that the appellants, as sellers, deliberately concealed the latent defects by filling cracks and painting over them, amounting to fraudulent misrepresentation. This conduct deprived them of protection under the voetstoots clause. The respondents' expert evidence was unchallenged and supported the finding that the defects were...

Court Disposition

Appeal dismissed with costs; the order of the Magistrate's Court stands.

Orders

  • The appeal is dismissed with costs.
  • Appellants are liable for wasted costs occasioned by premature enrolment of the matter before the court on 10 May 2021.