In the case of Stemmet and Another v Mokhethi and Another, the Supreme Court of Appeal (SCA) considered the crucial question of when prescription starts to run in cases involving latent defects, as prescription runs for a period of three years, before a claim will prescribe. The dispute revolved around a property sale where the purchasers alleged that the sellers had concealed significant structural defects and cracks.
After occupation in July 2013, the purchasers discovered structural defects which they alleged the sellers were aware of but had failed to disclose. On 19 July 2017, the purchasers initiated legal action against the sellers, claiming damages for the undisclosed defects. They argued that the defects were fraudulently concealed, leading them to purchase the property under false pretences.
The SCA noted that the purchasers had reasonable grounds to believe that the defects existed as early as June 2014 and were in possession of enough evidence to conclude that the sellers tried to conceal these defects through patchwork on the cracks. The court emphasized that prescription begins when the
creditor has the minimum facts needed to initiate legal action, not when they are fully aware of the extent of their legal rights or possess all the evidence to prove their case. Accordingly, the claim had prescribed and was dismissed with costs.
