THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No:   117/2009

In the matter between:

STANLEY ELLIAS LEKETI                                                  Appellant

and

MOGALE ANDREW TLADI N.O.                             First Respondent

FILIKANA HICKABOTH PETLELE                   Second Respondent

ALBERT MOERANE                                                 Third Respondent

THE REGISTRAR OF DEEDS                               Fourth Respondent

Neutral citation: Leketi v Tladi (117/09)[2010] ZASCA 38 (30 March
2010)

Coram:
MTHIYANE, NUGENT JJA, HURT, GRIESEL and
SALDULKER AJJA

Heard:
5 March 2010
Delivered:
30 March 2010

Summary:
Prescription ─ Plaintiff’s claim based on fraud committed on
25 June 1969 ─ claim only instituted in February 2004 ─
special plea of prescription upheld ─ held at the trial and on
appeal that by exercising reasonable care knowledge of
minimum facts necessary for plaintiff to institute claim could
have been obtained in time ─ argument that fraud was a
continuing wrong rejected.

___________________________________________________________

ORDER

On appeal from: North Gauteng High Court (Pretoria) (Thlapi AJ
sitting as court of first instance):

‘The appeal is dismissed with costs.’

JUDGMENT

MTHIYANE JA (Nugent JA, Hurt, Griesel and Saldulker AJJA
concurring)

[1] The appeal is against the judgment and order of the North Gauteng
High Court (Thlapi AJ) upholding a special plea of prescription and
dismissing with costs, the appellant’s claim against the executor (the first
respondent) and the second and third respondents, the beneficiaries of the
estate of his grandfather, the Late Albert Mogale (Albert), for a declarator
and vindicatory relief aimed at recovering from that estate immovable
property, known as Nooitgedacht No. 287 situated in the District of
Rustenburg (the property), which he alleged was the property of his
father, the Late George Mogale (George), who died on 5 January 1966.

[2] The appellant alleged that on 25 June 1969 Albert fraudulently
caused the property to be transferred and registered in his name, by
representing to the Registrar of Deeds, Pretoria (the fourth respondent)
that he was the only male heir of George and thus entitled to the property
upon intestate devolution according to Black custom. Albert also failed to
disclose that George was survived by three children from his marriage
with the appellant’s mother, Safira Mogale. These children were: the

appellant born on 7 April 1959, Audrey Mogale born on 17 February
1953 and Merona Maledu born on 22 August 1955.

[3] On 18 June 1974 Albert executed a will in which he bequeathed
the disputed property to the second and third respondents and two other
persons (now deceased) in equal shares as sole and universal heirs. The
appellant and his sisters, Audrey and Merona, are not mentioned in the
will.

[4] Although Albert’s alleged fraud took place on 25 June 1969 the
appellant’s summons commencing action was only served on the first to
third respondents between 9 February 2004 and 13 May 2004. The fourth
respondent, was only served on 20 July 2005.

[5] Only the first respondent pleaded to the summons, the others
elected to abide by the decision of the court. The first respondent filed a
special plea of prescription, in which he alleged that the appellant’s claim
had become prescribed by lapse of time. He contended that as the claim
fell due on 15 June 1969, when the property was transferred to Albert
(regard being had to the circumstance that the appellant attained majority
on 7 April 1980), the running of prescription against the appellant had
been delayed until 7 April 1981 under the provisions of s 13 of the
Prescription Act 68 of 1969. The first respondent contended further that,
as the summons was served more than three years after 7 April 1981, the
appellant’s claim had become prescribed and accordingly fell to be
dismissed with costs.

[6] The appellant replicated that he could not have instituted action
earlier because, until about 6 August 2003, he had had no knowledge of

‘the identity of the defendants and the facts from which the debt arose’.
He averred that he only gained knowledge of ‘the proper identity’ of the
defendants and facts giving rise to the cause of action on or about 6
August 2003, after obtaining information from certain documents in the
national archives in Pretoria. The documents referred to are the
following:

‘a copy of the decree of divorce between Safira Mogale and George Mogale;

confirmation that the property in issue belonged to George Mogale;

documents relating to the winding up of the estate of George Mogale;

a declaration by Albert Mogale that he was the sole surviving male heir of
George Mogale.’

[7] The sole question for decision at the trial was therefore whether the
appellant’s claim had become prescribed, given that the fraud which
formed the basis of the claim took place on 25 June 1969 and summons
commencing action was only served in February 2004. It is not in dispute
that because of the appellant’s minority at that stage, (he was only 10
years old in 1969) leaving aside the question of whether or not he knew
of the fraud, the completion of prescription was delayed by virtue of the
provisions of s 13 of the Prescription Act. Section 13 of the Act provides:
‘(1)
If ─

(a)
the creditor is a minor . . .

the period of prescription shall not be completed before a year has
elapsed after the day referred to in paragraph (i).’
In the context of this case the ‘day’ referred to in para (a)(i) is the day the
appellant turned 21, viz 7 April 1980. Thus, in terms of s 13(1)(a), the
completion of prescription against the appellant would have been
deferred until 7 April 1981.

[8] In this context and for the purposes of considering the provisions of

the Prescription Act, the appellant is the ‘creditor’ and any obligation on
the part of the estate of Albert to restore to its rightful owner, property
which he fraudulently appropriated is a ‘debt’1 as described in s 11(d) of
that Act. In terms of the section the ordinary period of prescription for the
‘debt’ is three years from the date upon which a debt becomes due.
However, the matter is further complicated by s 12(3) which provides:
‘A debt shall not be deemed to be due until the creditor has knowledge of the identity
of the debtor and of the facts from which the debt arises: Provided that a creditor shall
be deemed to have such knowledge if he could have acquired it by exercising
reasonable care.’ (emphasis added)

[9] It is obviously difficult for the first respondent to get past the
appellant’s bald assertion that he only obtained knowledge of the fraud on
6 August 2003 when he obtained documents from the national archives in
Pretoria. It is a statement that can only be tested against the probabilities
in the light of the totality of the evidence presented at the trial. The trial
judge rejected the appellant’s version that he did not know that the farm
belonged to his father, George, and that he only came to know about this
on 6 August 2003. The learned judge concluded that ‘[i]n all probability
the appellant and his sisters knew or were told even before they became
majors that their right (to the property) stemmed from the fact that the
farm had belonged to their father.’ The judge set out grounds for this
conclusion. She said:
‘1.
Even before plaintiff’s birth George had been frequenting the farm. According

1 In Barnett & others v Minister of Land Affairs & others 2007 (6) SA 313 (SCA) it was said at para
19: ‘Though the Act does not define the term “debt,” it has been held that, for purposes of the Act, the
term has a wide and general meaning and that it includes an obligation to do something or refrain from
doing something.’ After referring to other relevant authorities Brand JA went further to say there is no
reason why the term ‘debt’ would not include ‘a claim for the enforcement of an owner’s right to
property.’ He cited with approval Evins v Shield Insurance Co Ltd 1979 (3) SA 1136 (W) at 1141F-G
where King J said: ‘The word “debt” in the Prescription Act must be given a wide and general meaning
denoting not only a debt sounding in money which is due, but also, for example, a debt for the
vindication of property.’

to Ntlatseng, on the date of plaintiff’s birth George had gone to the farm in
Rustenburg.
2.
According to Maureen, George used to visit them at their maternal
grandfather’s home in Rustenburg. He came from the farm driving his tractor;
3.
Maureen approached Hilda and pieces of corrugated iron and a table were
pointed out as the only remaining items from their home belonging to them. In my
view the home referred to then was the one in which George lived on the farm. In all
probability, Maureen went to see Hilda, about the farm which belonged to her father.
4.
Maureen accompanied Hilda to see Hugh Parkes, the attorney. In my view, it
is unlikely that she would have gone to Johannesburg, if not to establish first hand, the
reason why they could not inherit the farm. The possibility is there that she was
informed of Albert’s Last Will and Testament.
5.
Their uncle Nnakgolo George undertook to ensure that they received what
rightfully belonged to them to the exclusion of the other grandchildren.
6.
Independently they reported Albert’s estate to the Master in Mmabatho. Hilda,
Albert’s surviving spouse or the other grandchildren did not feature.’

[10] Although the above reasons are in themselves compelling, in my
view, the real question for decision in this appeal is whether on a
consideration of the totality of the available evidence, it can be said that
the appellant could not have acquired knowledge of the fraud on the part
of Albert on 25 June 1969, ‘by exercising reasonable care’, as required in
the proviso to s 12(3) of the Prescription Act.

[11] One only has to look at his version to come to the conclusion that
he took no steps at all, let alone ‘reasonable’ steps, to enforce his claim in
a manner envisaged in s 12(3) of the Prescription Act. The appellant and
his sisters, Audrey and Merona, knew all along that they were going to
inherit the property, as Albert’s intestate heirs. The appellant says he did
not know that the property belonged to his late father, George, nor was he
aware that Albert had made a will bequeathing the farm to the second and

third respondents and two other persons (now deceased). Albert died in
1976. Understandably he was too young then to do anything about the
matter. But after graduating from medical school in 1983 he could have
taken steps to find out in whose name the property was registered. Instead
what did he do? After completing his medical degree, he set up practice
in Thaba Nchu in 1984 and later went to practise in Bloemfontein in
1985. Subsequently he moved to Potchefstroom during 1986 and finally
settled in Springs during 1987.

[12] The appellant testified that he only started applying his mind to the
property issue in 1986 and 1987 when he returned to practise in Gauteng.
In reply to a question in cross-examination he said it did not strike him as
strange that after 11 years the property, which was his entitlement, had
not yet been transferred and remarked somewhat curiously:
‘It was not strange for me at that point because at that point there was no dispute / I
came back from my studies and I needed to inquire who was then taking care of the
property.’
It is clear from the above remark that claiming the property was the least
of his priorities. He was more concerned about who was taking care of
the farm because he had obtained information that there was a company
that was carrying on mining operations on it and another person who had
planted sunflowers there. It is not clear from the record what those
enquiries yielded.

[13] Two years later in 1989 the appellant and his sister Merona went to
consult an attorney, Mr Makhambeni, to seek advice on how to deal with
the ‘people that were mining granite’ on the farm and those ‘who had
planted sunflower for the trading’ purposes. There is no indication that
the appellant sought to instruct Makhambeni to enforce his entitlement to

the farm. Makhambeni requested them to obtain the marriage certificate
of their parents, confirming that they were born of George and their
mother, Safira Mogale. They were also asked to obtain copies of death
certificates of George and Albert and some confirmation that George was
the son of Albert.

[14] Merona obtained the requested documents from the Department of
Home Affairs, Rustenburg, and when she returned to Makhambeni’s
office with them in 1990 she discovered that he had been struck off the
roll of attorneys.

[15] In the meantime the appellant was having discussions with
members of the family and the purpose and details of these meetings is
far from clear from the record. Be that as it may, they culminated in the
appellant meeting one of his aunts, Ms Nthlaseng Mogale, from whom he
went to ‘check’ who was actually taking care of the farm. His aunt
referred the appellant to her brother, George Nagole Mogale, who was
‘the one who had been taking care of the farm’. The appellant and his
sister, Merona, went to visit the gentleman concerned and he assured
them that he would see to it that the farm was returned to them. It appears
from the record that this meeting took place around 1999. Arrangements
were then made for the appellant and his sisters to go to Tlhabane
Magistrates’ court, presumably for the purpose of winding up the estate
of Albert who died in 1976. The appellant’s uncle, George Nagole
Mogale, most unfortunately died in 2001 before the visit to the Tlhabane
Magistrate’s court.

[16] Merona ended up going to the magistrate together with her and the
appellant’s half brother, Sipho Leketi. On 21 September 2001 they were

issued with a letter of authority which authorized them to take control of
the assets of the estate of Albert. On 29 November 2002 the said letter of
authority was withdrawn, when it was discovered that Albert had in fact
died testate and consequently the first respondent was appointed the
executor of the estate of Albert.

[17] The appellant is not an ordinary lay person. He is a medical
practitioner, who qualified as such in 1983. He commenced his practice
in 1984 and was certainly at that stage in a position to engage an attorney
to secure transfer of the farm into his name. On his own version as early
as 1978 there was never any dispute as to whom the farm (the property)
was to go to.

[18] Obtaining a deed of transfer from the Deeds Registry would have
provided the appellant with the required minimum facts for the institution
of a claim against the estate of his grandfather, Albert, much earlier than
on 6 August 2003. It seems to me that the adverse operation of s 12(3) is
not dependent upon a creditor’s subjective evaluation of the presence or
absence of ‘knowledge’ or minimum facts sufficient for the institution of
a claim. In terms of s 12(3) of the Prescription Act the ‘deemed
knowledge’ imputed to the ‘creditor’ requires the application of an
objective standard rather than a subjective one. In order to determine
whether the appellant exercised ‘reasonable care’ his conduct must be
tested by reference to the steps which a reasonable person in his or her
position would have taken to acquire knowledge of the ‘fraud’ on the part
of Albert. (See Drennan Maud & partners v Pennington Town Board.2)
On the application of that objective standard, it is clear that if the
appellant had exercised reasonable care he could have acquired

2 1998 (3) SA 200 (SCA) at 209F-G.

knowledge of the fraud, long before the claim prescribed, and thus the
requisite minimum facts to enable him to institute his claim timeously.

[19] On the evidence, it is clear that the appellant’s failure to institute
action timeously was not due to his lack of or inability to obtain
knowledge but rather to his dilatoriness as correctly found by Thlapi AJ.
It took him 6 years (1981 – 1987) after his claim had prescribed to begin
to make enquiries. It seems that he was more concerned about
establishing the identity of the person who was ‘taking care of the farm’
so as to take up the issue as to who was conducting mining operations on
the property and who were planting sunflowers. It then took him another
3 years (1987 – 1990) to consult an attorney for the first time. The
appellant was not indigent and had the means to instruct an attorney.
Then some 14 years passed before the appellant made enquiries about
documents, which were ultimately retrieved from the National Archives,
Pretoria on 6 August 2003. In these circumstances it is difficult to
disagree with the judge a quo’s finding that the appellant’s dilatory and
nonchalant conduct was the key contributory factor to his purported
inability to obtain ‘knowledge’ timeously.

[20] A further ground advanced by the appellant for his contention that
his claim has not prescribed is that the fraud committed by his
grandfather, Albert, on 25 June 1969 was a continuing wrong. Mr Bokaba
for the appellant, argued that for as long as the property remained
registered in the name of Albert, the claim remains alive. No authority
was cited for the submission that a claim based on fraud does not become
prescribed.

[21] The point is clearly without merit. Fraud is an act of deceit which

resulted in a single act of transfer and registration which was completed
on 25 June 1969. It is that single act which constitutes the appellant’s
cause of action and does not amount to a continuing wrong. (cf Barnett &
others v Minister of Land Affairs & others3)

[22] In the result and on either basis the appellant fails. The following
order is made:
‘The appeal is dismissed with costs.’

________________________

K K Mthiyane

Judge of Appeal

3 At 320I-321A.

APPEARANCES

APPELLANT:

T J B Bokaba SC (with him D C Mpofu)

Instructed by Noko Inc, Pretoria

Naudes, Bloemfontein

FIRST RESPONDENT:
F J Erasmus
Instructed by Rooth Wessels Motla
Conradie, Pretoria

Rosendorff Reitz Barry, Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

30 March 2010

STATUS:
Immediate

Leketi v Tladi (117/09)[2010] ZASCA 38 (30 March 2010)

Please note that the media summary is intended for the benefit of the media and does
not form part of the judgment of the Supreme Court of Appeal

The SCA today dismissed with costs, an appeal by the appellant, Dr Stanley Ellias
Leketi, from the judgment of the North Gauteng High Court (Thlapi AJ), which
dismissed his action with costs, after a finding that his claim had become prescribed.
Dr Leketi had instituted a claim for the recovery of certain immovable property
known as Nooitgedacht No 287 situated in the District of Rustenburg, which belonged
to his father, the late George Mogale, who died on 5 January 1966. Dr Leketi alleged
that his late grandfather had fraudulently caused the property to be transferred and
registered into his name on 25 June 1969, by claiming to be George’s only surviving
male heir and failing to disclose to the Registrar of Deeds, Pretoria that George was
survived by three children from his marriage namely, Dr Leketi and his two sisters,
who would have been lawfully entitled to inherit the property as George’s intestate
heirs.

Unfortunately Dr Leketi delayed instituting action and only caused his summons to be
served in February 2004, some 24 years after he had turned 21 years. The executor of
the estate of his late grandfather, Albert Mogale, took the point that his claim had
become prescribed. The plea of prescription was upheld by the North Gauteng High
Court and the SCA agreed with that finding.

Dr Leketi’s appeal was accordingly dismissed with costs.