Couple claimed too late for defects in house, SCA rules

A couple who bought a house in Bloemfontein for R1.3m in July 2013 and discovered problems within a year of ownership have failed in their bid to claim damages for the defects. 

The Supreme Court of Appeal (SCA) ruled this week that their claim had prescribed when summons was lodged in the magistrate’s court just over three years after they became aware of the defects.

The Prescription Act states contractual and delictual debts extinguish after three years from the date when it became payable.  

In this case Tseliso Mokhethi and his wife Mmakweleng had viewed the property belonging to Gideon t and Elaine Stemmet on two separate occasions and were impressed with the condition of the property. An agreement of sale was concluded on May 24 2013 and the property was transferred to the Mokhethis on July 22 2013. 

Several months after taking occupation, but before June 24 2014, the couple noticed a number of defects on the house, including structural cracks in the bedrooms, along rafters in a gable wall and in the outside walls of the living room,  dining room and garage. 

On June 24 2014, the Mokhethis lodged a claim with Absa, which, as part of its financing of the purchase price of the property, had insurance cover over the property.  

Absa declined the claim on August 12 2014 on the basis that “the defects were old and gradual, had been previously patched and were caused by the expansion and retraction of the clay upon which the property was built”. 

On July 19 2017, the homeowners issued summons against the previous owners in the magistrate’s court for damages. 

They claimed the Stemmets knew of the defects when the house was bought, had a duty to inform them of the latent defects and failed to do so. 

The Stemmets raised a special plea of prescription. They asserted the Mokhethis were aware of the defects by June 2014, by which time the running of prescription had already commenced.  

The Stemmets said as summons was only served on July 27 2017, the claim had prescribed. 

When the case came before the magistrate’s court, Tseliso Mokhethi testified that when when he submitted the claim to Absa in June 2014, there were problems with doors jamming, after which cracks began appearing above the doors and grew bigger. Mokhethi testified the patchwork became visible and it was clear cracks had been covered up. 

In its judgment, the magistrate’s court said the Mokhethis could only have acquired the minimum acts to interrupt prescription on August 12 2014, when Absa declined their claim and provided the reason for its decision.  

It dismissed the special plea of prescription. The court then dealt with the merits and awarded damages in favour of the Mokhethis. 

The Stemmets appealed to the high court in Bloemfontein. The majority of the court dismissed the appeal, while the minority would have upheld the appeal having found  the Mokhethis’ claim had prescribed.  

In its judgment, the SCA said it must be determined precisely when the Mokhethis had acquired the minimum knowledge necessary to institute action against the Stemmets. 

“It is common cause that the defects started to manifest some time before June 24 2014, when the [Mokhethis] lodged the claim with Absa. Thus, at that stage, the [Mokhethis] were aware there were structural problems with the property,” judge of appeal Sharise Weiner said in a unanimous decision on behalf of the full bench. 

She said it was clear as early as June 2014 the Mokhethi family was in possession of sufficient facts to cause them, on reasonable grounds, to believe there had been attempts by the Stemmets to cover up latent defects in the property. 

“The attempt to patch up the cracks would have immediately led to a reasonable belief the [Stemmets] had fraudulently misrepresented the facts to them. That apprehension was sufficient to complete their cause of action against the [Stemmets].  

“They thus had knowledge of sufficient facts which would have led them to believe  the defects existed when they purchased the property and they were fraudulently concealed by the [Stemmets],” Weiner said. 

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