`

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable

Case No:  817/2013

In the matter between:

ABSA BANK LIMITED

APPELLANT

and

ANDRÉ KEET

RESPONDENT

Neutral citation: Absa Bank v Keet (817/13) [2015] ZASCA 81 (28 May 2015)

Coram:

Maya, Bosielo, Wallis, Zondi JJA and Meyer AJA

Heard:

11 May 2015

Delivered:

28 May 2015

Summary:
Prescription - A claim under the rei vindicatio not a debt in terms
of Chapter III of the Prescription Act 68 of 1969 – does not
prescribe after three years.

___________________________________________________________________
ORDER
___________________________________________________________________

On appeal from: North Gauteng High Court, Pretoria (Fabricius J sitting as court of
first instance):
The appeal succeeds and the order of the high court upholding the special plea of
prescription is substituted with the following:
„The special plea of prescription is dismissed.‟
No order is made as to costs.

____________________________________________________________________
JUDGMENT

Zondi JA (Maya, Bosielo, Wallis JJA and Meyer AJA concurring):
[1] The main issue in this appeal is whether a claim under the actio rei vindicatio
becomes prescribed after three years by virtue of the provisions of s 10 of the
Prescription Act 68 of 1969 (the Prescription Act). The court a quo (Fabricius J) held
that it did. In so doing he rejected the view of Blignault J in Staegemann v
Langenhoven1  that such a claim is not a debt for the purposes of Chapter III of the
Prescription Act and can accordingly not be defeated by a plea of extinctive
prescription.

[2] The issue arose in the following circumstances: Eastvaal Motors Limited
(„Eastvaal Motors‟) sold a tractor vehicle („vehicle‟) to the respondent, André Keet, in
terms of a written instalment sale agreement („the agreement‟) concluded by the parties
on 26 September 2003. Eastvaal Motors‟ right, title and interest in and to the agreement
was ceded to the appellant, Absa Bank Limited, on 26 September 2003. Thereafter the

1 Staegemann v Langenhoven & others 2011 (5) SA 648 (WCC).

respondent took delivery of the vehicle.

[3] It was an express term of the agreement that ownership of the vehicle would not
pass to the respondent until all amounts owing under the agreement had been paid in
full. The purchase price would be paid by way of a specified number of instalments
commencing on 1 November 2003 and ending on 1 November 2007. It was a further
term of the agreement that, if the respondent failed to comply with any provisions of the
agreement, or failed to make any payment in terms thereof, the appellant would be
entitled to the return and possession of the vehicle. In that event the appellant would also
be entitled to demand payment of any arrear instalments.

[4] On 18 November 2011 the appellant instituted action against the respondent in the
North Gauteng High Court. It alleged that the respondent was in breach of the agreement
in that he had defaulted in paying the instalments due and that it had cancelled the
agreement. The summons was served on the respondent on 14 December 2011. In that
action the appellant sought confirmation of its cancellation of the agreement and the
repossession of the vehicle.

[5] The respondent defended the action, and apart from pleading over on the merits of
the appellant‟s claims, delivered a special plea in which he alleged that the appellant‟s
claim for payment of arrears had become prescribed under the Prescription Act. In his
special plea the respondent alleged that the agreement on which the appellant sued
would have come to an end on 1 November 2007, which is the date on which he
contended the amount alleged to be outstanding became due and payable. The
respondent contended that in terms of s 11 of the Prescription Act, „any claim for
arrears‟ against the respondent pursuant to the agreement prescribed on 31 October
2010. For that reason, he contended that it was not open to the appellant to cancel the
agreement and recover possession of the vehicle. The appellant did not replicate to the
respondent‟s special plea. The special plea was set down separately. On the basis of an

assumption that what was pleaded by the respondent in his special plea, though
inelegantly expressed, covered the point, the issue for determination was whether the
appellant‟s claim for repossession of the vehicle had become prescribed.

[6] The court a quo upheld the special plea with costs. It did so on the basis of its
finding that Staegemann, in which it was held that a vindicatory claim being a claim to
ownership in a thing and not a claim for payment of a debt, does not prescribe after three
years, was wrongly decided.2 In upholding the plea it followed cases such as Evins v
Shield Insurance Co Ltd; 3 Barnett v Minister of Land Affairs;4 Grobler v Oosthuizen;5
and Leketi v Tladi NO.6 (More on these cases will be said later in the judgment). It
reasoned that if Staegemann were correct, „the Bank could withhold its demand for the
tractor for another decade or even longer, and then demand return of the vehicle so that
it could calculate its damages‟. It went on to refer to a recent decision of this Court in
Bester v Schmidt Bou Ontwikkelings CC,7 in which the correctness of Barnett and the
decisions that followed it, was doubted and in which this Court found the reasoning in
Staegemann attractive and quite convincing. This statement did not persuade the court a
quo to adopt the reasoning in Staegemann.

[7] The parties reached a settlement shortly before the hearing so that the respondent
was not represented. In view of the nature of the issues involved, this Court asked the
Free State Bar Council to appoint an amicus curiae and we are grateful to him. At the
hearing of this appeal this Court requested the appellant and the amicus curiae to
address it on two preliminary points. The first was whether prescription of the
vindicatory claim had been pertinently raised in the pleadings.8 The second was whether

2 See also J Saner Prescription in South African Law, (Service Issue 21 – September 2014) at 3-40─3-41 in which the
reasoning in Staegemann was criticised.
3 Evins v Shield Insurance Co Ltd 1979 (3) SA 1136 (W) at 1141F-G.
4 Barnett & others v Minister of Land Affairs & others 2007 (6) SA 313; [2007] ZASCA 95 (SCA) para 19.
5 Grobler v Oosthuizen 2009 (5) SA 500; [2009] ZASCA 51 (SCA) para 18.
6 Leketi v Tladi NO & others [2010] 3 All SA 519; [2010] ZASCA 38 (SCA) paras 8 and 21.
7 Bester NO & others v Schmidt Bou Ontwikkelings CC 2013 (1) SA 125; [2012] ZASCA 125 (SCA) para 15.
8 Section 17(2) of the Prescription Act.

the subsequent settlement of the matter by the parties and the withdrawal by the
respondent of his opposition to the appeal had not rendered the appeal moot by virtue of
the provisions of s 16(2)(a)(i) of the Superior Courts Act 10 of 2013.9 With regard to the
first point the parties were agreed that nothing turned on it as the issue was fully
ventilated when the special plea was argued in the court a quo and that its judgment
dealt with it and it is an issue in respect of which leave to appeal to this Court was
granted, submitted the appellant. As to the second point, the appellant urged on this
Court to hear the appeal notwithstanding its mootness on the ground that it raises a
discrete legal issue of public importance.

[8] As a general principle, courts should not decide issues that are of solely academic
interest. This principle is trite,10 being one of long standing.11 Notwithstanding its
mootness, I am of the view that this appeal is a proper matter for this Court to exercise
its discretion in favour of hearing it.12 The issue of the legal nature of a vindicatory claim
and whether it gives rise to a debt that is subject to extinctive prescription has been
decided differently by different divisions of the high court. The recent decision of
Staegemann on the period of extinctive prescription applicable to the vindicatory claim
departs from the earlier decision in what is now the Gauteng Local Division in Evins,
which received this Court‟s approval in Barnett.That decision was in turn followed by
this Court in Grobler and Leketi. This Court in Bester doubted the correctness of all
three of these decisions of this Court and expressed the view that a day would arise
when this Court would have an opportunity to reconsider this vexing legal question. This
is that day. Undoubtedly this appeal raises a discrete legal issue of public importance
„that would affect matters in the future and on which the adjudication of this Court is

9 Section 16(2)(a)(i) provides:
„When at the hearing of an appeal the issues are of such a nature that the decision sought will have no practical effect or result,
the appeal may be dismissed on this ground alone.‟
10 Legal Aid South Africa v Mzoxolo Magidiwana & others 2015 (2) SA 568; [2014] ZASCA 141 (SCA) para 2.
11 Coin Security Group v SA National Union for Security Officers 2001 (2) SA 872; [2000] ZASCA 48 (SCA) para 7.
12 Natal Rugby Union v Gould 1999 (1) SA 432; [1998] ZASCA 62 (SCA); Land en Landbouontwikkelingsbank van Suid-
Afrika v Conradie 2005 (4) SA 506; [2005] ZASCA 15 (SCA) and The Merak S: Sea Melody Enterprises SA v Bulktrans
(Europe) Corporation 2002 (4) SA 273; [2002] ZASCA 18 (SCA).

required . . .‟13 Moreover, the issue is not a factual dispute between the parties, but
rather a matter of law that will affect many litigants beyond the confines of this case.

[9] I turn now to consider the merits of the appeal, namely whether the appellant‟s
claim for the repossession of its vehicle is a „debt‟, which for the purposes of the
Prescription Act prescribes after three years. The court a quo dismissed the appellant‟s
claim for repossession of the vehicle on the basis that it was a „debt‟ as contemplated in
s 11 of the Prescription Act and thus prescribed after three years. As I have already
stated above, it reached its conclusion on the basis that Staegemann was wrongly
decided.

[10]  Counsel for the appellant submitted that a vindicatory claim is clearly a claim
based on ownership of a thing and that it cannot be described as a claim for satisfaction
of a debt. He argued that this Court should follow the reasoning in Staegemann, which
he submitted, was correct. The amicus curiae submitted that if the legislature in its
wisdom, had wanted to stipulate the period of prescription in respect of a vindicatory
claim, for which neither the 1943 Prescription Act nor the present Prescription Act
provided, it could have done so. But it chose not to do so, because, he submitted, it
intended the prescription period in respect of a vindicatory claim to be decided on a case
by case basis. But when asked by the Court whether that proposition reflected a correct
approach to construing a statute such as the Prescription Act, he was constrained to
concede that the construction he contended for was incorrect. His alternative argument
was that for the sake of consistency this Court should in construing the Prescription Act
interpret the concept „debt‟ in the same manner as it was interpreted in cases such as
Barnett; Desai N.O. v Desai; 14; and Electricity Supply Commission v Stewarts &
Lloyds of SA (Pty) Ltd.15

13 Qoboshiyane NO v Avusa Publishing Eastern Cape (Pty) Ltd & others 2013 (3) SA 315; [2012] ZASCA 166 (SCA) para
5.
14 Desai N.O. v Desai & others 1996 (1) SA 141; [1995] ZASCA 113 (A).
15 Electricity Supply Commission v Stewarts & Lloyds of SA (Pty) Ltd 1981 (3) SA 340 (A).

[11] Staegemann was a case on all fours with the present one. The applicant claimed
the return of his vehicle from the first respondent, who had bought it from a third party,
to whom it was fraudulently sold by the third respondent. The first respondent resisted
the applicant‟s claim contending that the claim had prescribed. This plea was rejected
after a thorough review of the authorities.

[12] It was pointed out by Holmes AJA in Electricity Supply Commission at 344F-H
with reference to the Shorter Oxford English Dictionary and also to Leviton & Son v De
Klerk’s Trustee16 that a debt is „that which is owed or due; anything (as money, goods
or services) which one person is under obligation to pay or render to another and
„whatever is due – debitum – from any obligation‟. That definition was thereafter
adopted and extended by this Court in Desai N.O. at 146I-J where a „debt‟ was said to
have „a wide and general meaning, and includes an obligation to do something or refrain
from doing something‟. The notion that a vindicatory claim constituted a debt subject to
extinctive prescription has its origins in the following statement in Evins (at 1141F-G):
„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.‟

[13] It is by no means clear what King J intended by this dictum. Evins dealt with a
motor vehicle accident claim and the issue was whether a claim for personal injuries and
a claim for damages for loss of support arising from the death of the plaintiff‟s husband
were separate claims or a single debt for the purposes of prescription. No issue of a
vindicatory claim arose for consideration. As the judge was contrasting a claim sounding
in money with a claim for delivery of property, he may have meant nothing more than
that both types of claims could give rise to a debt. His statement was not approved when
the case came before this Court in Evins17 and there is a passage in the judgment of

16 Leviton & Son v De Klerk’s Trustee 1914 CPD 685 at 691.
17 Evins v Shield Insurance Co Ltd 1980 (4) SA 814 (A).

Corbett JA (at 842E-F) that seems inconsistent with it. There, in dealing with what
constitutes a debt for purposes of prescription, Corbett JA said:
„… it is clear that the “debt” is necessarily the correlative of a right of action vested in the creditor,
which likewise becomes extinguished simultaneously with the debt. (Cf Erasmus v Grunow en ‘n
Ander 1978 (4) SA 233 (O) at 245E.)‟

[14] In Erasmus v Grunow, Van Heerden J had said that „a right of action‟ and „a
debt‟ were two poles of an obligation‟ („‟n Vorderingsreg en „n skuld is egter twee pole
van „n verbintenis‟.) In other words, they are the opposite poles of a single obligation.18
An obligation for these purposes could arise from contract, delict or ex lege as Van
Heerden AJA made clear in Oertel,19 where he said that a debt is an obligation to do
something, either by payment or the delivery of goods or services. It is one pole of an
obligation, which in this context encompasses a right to receive and a corresponding
duty to give. Significantly absent from this exposition is any suggestion that a claim
arising other than from an obligation of this character, such as a claim to enforce a real
right, is a debt.

[15] In Barnett this Court was confronted with a special plea of prescription raised by
certain persons who had occupied and built structures on State land. The occupiers‟
argument in support of the plea relied on s 12(3) of the Prescription Act. They
contended that the prescription period of three years commenced to run, at the latest,
when the government acquired knowledge of the „identity of the debtor and of the facts
upon which the debt arose‟; the „debt‟ being the vindicatory relief which the government
sought to enforce.

[16] Brand JA writing for this Court stated at para 19 of the judgment with reference

18 Cape Town Municipality and another v Allianz Insurance Co Ltd 1990 (1) SA 311 (C) at 331C-E.
19 Oertel en Andere NNO v Direkteur van Plaaslike Bestuur 1983 (1) SA 354 (A) at 370B-C.

to Evins that he was prepared to accept that the vindicatory relief which the government
sought to enforce constituted a „debt‟ as contemplated by the Prescription Act. He said
that he could see no reason why it would not include a claim for the enforcement of an
owner‟s right to property. But then the prescription point was dismissed on the basis of
application of the concept of a continuous wrong.20

[17] Grobler concerned the question whether a claim to recover the proceeds of
certain insurance policies ceded to the appellant‟s late husband, had prescribed. The
high court held on the basis of the application of the pledge theory that what the
applicant there sought to enforce was a vindicatory claim that became prescribed after
30 years. This Court rejected that finding. At para 19 this Court stated:
„. . . the prescription period of 30 years in s 1 of the Prescription Act relates to acquisitive prescription.
For extinctive prescription, the period can, in the present context, only be three years provided for in s
11(d) of the Act‟.
It referred to Evins and Barnett in support of that proposition. In the end nothing turned
on the prescription point and the case was decided on other grounds.

[18] In Leketi the appellant alleged that his grandfather had fraudulently caused certain
property to be registered in his own name instead of in the name of the appellant‟s late
father. His claim was directed at setting aside the registration in the name of his
grandfather and then procuring transfer of the property from his late father‟s estate. The
claim was not a vindicatory claim and accordingly the reference to Barnett  was obiter
and irrelevant to the decision, which turned on the appellant‟s knowledge of the
allegedly fraudulent transfer.

[19] In Schmidt Bou Ontwikkelings the question whether a vindicatory claim gives rise
to a „debt‟ which prescribed after three years, was raised, but not decided by this Court.
But the reasoning in Staegemann in which the correctness of Barnett was doubted, was

20 Paras 20 and 21.

found attractive and quite convincing and an inclination was expressed to revisit the
correctness of the decisions in Barnett; Grobler; and Leketi to the effect that such a
claim is extinguished by prescription after three years. 21

[20] In my view, there is merit in the argument that a vindicatory claim, because it is a
claim based on ownership of a thing, cannot be described as a debt as envisaged by the
Prescription Act. The high court in Staegemann (para 16) was correct to say that the
solution to the problem of the prescription is to be found in the basic distinction in our
law between a real right (jus in re) and a personal right (jus in personam). Real rights
are primarily concerned with the relationship between a person and a thing and personal
rights are concerned with a relationship between two persons.22 The person who is
entitled to a real right over a thing can, by way of vindicatory action, claim that thing
from any individual who interferes with his right. Such a right is the right of ownership.
If, however, the right is not an absolute, but a relative right to a thing, so that it can only
be enforced against a determined individual or a class of individuals, then it is a personal
right.23

[21] That distinction between real rights and personal rights has consistently been
recognised in our case law24 and was recently explained by this Court in National
Stadium South Africa (Pty) Ltd v Firstrand Bank Ltd 25 para 31:
„The first concerns the distinction between real and personal rights. Real rights have as their object a
thing (Latin: res; Afrikaans: saak). Personal rights have as their object performance by another, and the
duty to perform may (for present purposes) arise from a contract. Personal rights may give rise to real
rights; for instance, a personal obligation to grant someone a servitude matures into a real right on
registration. Real rights give rise to competencies: ownership of land entitles the owner to use the land
or to give others rights in respect thereof. Others may say that ownership consists of a bundle of rights,

21 Para 15.
22 Reinhard Zimmerman The Law of Obligations (1990) at 6-7; C G Van der Merwe Things in 27 LAWSA 2 ed para 59.
23 Wessels Law of Contract in South Africa 2 ed vol 1 p 3-4.
24 Smith v Farrelly’s Trustee 1904 TS 949 at 958; Lorentz v Melle & others 1978 (3) 1044 (T) at 1050D-E.
25 National Stadium South Africa (Pty) Ltd & others v Firstrand Bank Ltd 2011 (2) SA 157; [2010] ZASCA 164 (SCA) para
31.

including the right to use the land, but it does not really matter who is right on this point.‟

[22] Wessels points out at 3-4 that:
„In a real right we have the owner in direct relation to the thing he claims, but in a personal right the
claimant must claim his right to a thing or act indirectly through an intermediate person called a debtor.
The person who claims from his debtor money lent has no absolute right to particular coins, but he has
the right of compelling his debtor to pay him what is due to him by virtue of the loan. The debtor is
under a legal obligation to pay his creditor what is due to the latter.‟

[23] The obligation which the law imposes on a debtor does not create a real right (jus
in rem), but gives rise to a personal right (jus in personam). In other words, an
obligation does not consist in causing something to become the creditor‟s property, but
in the fact that the debtor may be compelled to give the creditor something or to do
something for the creditor or to make good something in favour of the creditor.26

[24] The manner in which the Prescription Act is structured, reflects this distinction ─
acquisitive prescription of real rights is dealt with in Chapters 1 and 2 and the extinctive
prescription of obligations is dealt with in Chapter 3. The reason for arranging the
Prescription Act in this manner was explained by Professor J C de Wet, the author and
draftsman of the present Prescription Act, in a full memorandum he submitted to the
Legislature. The memorandum was published in February 1979 in a work called
Opuscula Miscellanea.27 Professor de Wet had this to say at p 77 para 5:
„Whether prescription is concerned with a single legal concept with two branches, viz. acquisitive and
extinctive prescription, or whether there are in fact two distinct legal concepts is an old controversy. It
appears to me that one is actually concerned with two distinct legal concepts and even the expressions,
“acquisitive” and “extinctive” prescription are somewhat unfortunate and misleading. It is true that the
passage of time plays a role in both legal concepts and that certain circumstances, connected to the
person against whom “prescription runs”, apply to both legal concepts, but nonetheless the two legal
concepts rest on different foundations. In the case of acquisitive prescription one is concerned with real
rights, which do not concern simply the acquisition of a right by the one and the loss of a right by the
other,
but
also
outward
appearances
that
may
affect
third
parties
in
their

26 Wessels p 5.
27 J J Gauntlett (ed) Opuscula Miscellanea (1979).

relationships with the one or the other. The rationale for the acquisition of real rights by prescription is
the perpetuation of a factual situation that has existed for a long time, and upon which third parties
may rely in their relationships with the ostensible rightful owner. In the case of extinctive prescription
one is more specifically concerned with the relationship between creditor and debtor and prescription
serves in the first instance to protect the debtor against claims that perhaps never came into existence
or had already been extinguished. The obligation is by its nature and substance a temporary
relationship that is destined to terminate through performance and moreover a relationship between
creditor and debtor in which third parties are only indirectly involved. A real right, by contrast, is a
relationship of a durable nature, that can be maintained against anyone and everyone, and which can
impede commerce if outsiders cannot with confidence rely on the appearance thereof.‟28 (My own
translation)

[25] In the circumstances, the view that the vindicatory action is a „debt‟ as
contemplated by the Prescription Act which prescribes after three years is, in my
opinion, contrary to the scheme of the Act. It would, if upheld, undermine the
significance of the distinction which the Prescription Act draws between extinctive
prescription, on the one hand and acquisitive prescription on the other. In the case of
acquisitive prescription one has to do with real rights. In the case of extinctive
prescription one has to do with the relationship between a creditor and a debtor. The
effect of extinctive prescription is that a right of action vested in the creditor, which is a
corollary of a „debt‟, becomes extinguished simultaneously with that debt.29 In other

28 The original text reads:
„5.
Dit is „n ou strydvraag of mens by verjaring met een regsinstelling te doen het wat twee vertakkings het, tw.
Verkrygende en bevrydende verjaring, dan wel of hier eintlik twee selfstandige regsinstellings is. Na dit my voorkom het mens
hier eintlik met twee selfstandige regsfigure te doen en is selfs die uitdrukkings “verkrygende” en “bevrydende” verjaring
ietwas ongelukkig en misleidend. Dit is waar dat by albei regsfigure tydsverloop „n rol speel en dat sekere omstandighede, wat
verband hou met die persoon teen wie “verjaring loop”, by albei regsfigure te pas kom, maar tog berus die twee regsinstellings
of verskillende grondslae. In die geval van verkrygende verjaring het mens met saaklike regte te doen, waar dit nie net gaan
oor die verkryging van „n reg deur die een en die verlies van „n reg deur die ander nie, maar ook met die skyn wat derdes in
hulle verhoudings met die een of die ander kan raak. Die ratio vir die verkryging van saaklike regte deur verjaring is die
bestendiging van „n feitlike toestand, wat vir „n lang termyn bestaan het, en waarop derdes ook kan afgaan in hulle
verhoudings met die oënskynlike reghebbende. By bevrydende verjaring het mens meer bepaald te doen met die verhouding
tussen skuldeiser en skuldenaar, en dien verjaring in die eerste plek om die skuldenaar te beskerm teen eise wat miskien nooit
ontstaan het nie of reeds gedelg is. Die verbintenis is uit sy aard en wese „n tydelike verhouding wat bestem is om deur
voldoening tot niet te gaan, en bowendien „n verhouding tussen skuldeiser en skuldenaar, waarby derdes slegs onregstreeks
betrokke is. „n Saaklike reg, daarenteen, is „n verhouding van „n duursame aard, wat teenoor elkeen en iedereen gehandhaaf
kan word, en waarby dit in die verkeer stremmend kan werk indien buitestaners nie met vertroue op die skyn kan afgaan nie.‟
29 Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 842E-F.

words, what the creditor loses as a result of operation of extinctive prescription is his
right of action against the debtor, which is a personal right. The creditor does not lose a
right to a thing. To equate the vindicatory action with a „debt‟ has an unintended
consequence in that by way of extinctive prescription the debtor acquires ownership of a
creditor‟s property after three years instead of 30 years that is provided for in s 1 of the
Prescription Act. This is an absurdity and not a sensible interpretation of the Prescription
Act.30

[26] I am aware that we are differing from a view that has been expressed in three
judgments of this court, albeit in my view none of those decisions was dependent upon
the correctness of that view for the ultimate result. However, to the extent that this view
could be seen as the ratio decidendi of those decisions, I would hold that it was
incorrect. I am aware of the restricted basis upon which this Court departs from its
earlier decisions, but am of the view that this is one of those rare cases in which it is
appropriate to do so. First, the decision (Barnett) is of reasonably recent origin so it
cannot be said that people have organised their affairs on the basis that it was correct.
Second, the author of the decision has indicated that it should be reviewed by this Court.
Third, the perpetuation of that view gives rise to absurdity in the construction of an
important statute and would cause uncertainty in a multitude of relationships.

[27] In the circumstances, the court a quo erred in upholding the special plea on the
basis of its finding that a claim for delivery of a tractor was a „debt‟ that becomes
prescribed after three years by virtue of the provisions of s 10 of the Prescription Act.

[28] In the result the following order is made:
The appeal succeeds and the order of the high court upholding the special plea of

30 See, in general, National Joint Municipal Pension Fund v Endumeni Municipality 2012 (4) SA 593; [2012] ZASCA 13
(SCA) para 18.

prescription is substituted with the following:
„The special plea of prescription is dismissed.‟
No order is made as to costs.

_______________________

D H Zondi

Judge of Appeal

Appearances
For the Appellant:
N C De Jager

Instructed by:

Webber Wentzel Attorneys, Cape Town

c/o Matsepes Inc Attorneys, Bloemfontein

Amicus Curiae:

L le R Pohl SC
THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
28 May 2015
Status:
Immediate

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.

Absa Bank Limited v André Keet (817/2013) [2015] ZASCA 81 (28 May 2015)

The Supreme Court of Appeal (SCA) today delivered a judgment upholding an appeal against the judgment of
the North Gauteng High Court, Pretoria upholding a special plea of prescription.

The issue before the SCA was whether a claim for repossession of a vehicle is a ‘debt’ as envisaged by the
Prescription Act that becomes prescribed after three years. The issue arose in the following circumstances:

Eastvaal Motors Limited (‘Eastvaal Motors’) sold a tractor vehicle (‘vehicle’) to the respondent, André Keet in
terms of a written instalment sale agreement (‘the agreement’) concluded by the parties on 26 September 2003.
Eastvaal Motors’ right, title and interest in and to the agreement was ceded to the appellant, Absa Bank Limited,
on 26 September 2003. Thereafter the respondent took delivery of the vehicle.

It was an express term of the agreement that ownership of the vehicle would not pass to the respondent until all
amounts owing under the agreement had been paid in full. The purchase price would be paid by way of a
specified number of instalments commencing on 1 November 2003 and ending on 1 November 2007. If the
respondent failed to comply with any provisions of the agreement, or failed to make any payment in terms
thereof, the appellant would be entitled to the return and possession of the vehicle. In that event the appellant
would also be entitled to demand payment of any arrear instalments.

On 18 November 2011 the appellant instituted action against the respondent in the North Gauteng High Court. It
alleged that the respondent was in breach of the agreement in that he had defaulted in paying the instalments due
and that it had cancelled the agreement. The summons was served on the respondent on 14 December 2011. In

that action the appellant sought confirmation of its cancellation of the agreement and the repossession of the
vehicle.

The respondent defended the action, and apart from pleading over on the merits of the appellant’s claims,
delivered a special plea in which he alleged that the appellant’s claim for payment of arrears had become
prescribed under the Prescription Act. In his special plea the respondent alleged that the agreement on which the
appellant sued would have come to an end on 1 November 2007, which is the date on which he contended the
amount alleged to be outstanding became due and payable. The respondent contended that in terms of s 11 of
the Prescription Act, ‘any claim for arrears’ against the respondent pursuant to the agreement prescribed on 31
October 2010. For that reason, he contended that it was not open to the appellant to cancel the agreement and
recover possession of the vehicle. The appellant did not replicate to the respondent’s special plea. The special
plea was set down separately. The high court upheld the special plea. It held that a claim for a delivery of a
tractor is a ‘debt’ as envisaged in the Prescription Act which prescribes after three years. It accordingly ruled
that the appellant’s claim for repossession of a tractor had prescribed.

The appellant appealed to the SCA and challenged the correctness of the high court’s finding that its claim for
the delivery of its tractor being a ‘debt’ had prescribed. The SCA upheld the appeal. It held that the appellant’s
claim for repossession of a tractor being a claim based on ownership of property, is not a ‘debt’ and as such,
does not become prescribed after three years.