In terms of section 12(1) of the Prescription Act, 1969 (the Act), prescription begins to run as soon as the debt is due. Section 12(3) of the Act provides that a debt is not 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 is deemed to have such knowledge if it could have acquired by exercising reasonable care. The operation of section 12(3) has been the subject of much judicial and academic discussion. The issue was recently considered by the Full Bench in Superstrike Investments (Pty) Ltd v Van der Merwe (Case No A305/2024) [2026] ZAWCHC.
In the above matter the plaintiff, who was a first-year university student at the time, instituted a claim for damages arising from injuries sustained to her spine on 23 January 2016. The injury occurred after the plaintiff swung from a rope tied to a tree near a dam in Stellenbosch. She released the rope while she was above the dam and collided with a submerged tree stump. In December 2018, the plaintiff sued the ISA Carstens Academy (Pty) Ltd (the Academy) and the Stellenbosch University (the University) for injuries arising from the incident. The claim against the Academy was based, in part, on the allegation that it operated the student residence where the plaintiff resided at the time of the incident, during which she was enrolled for an academic course at the University. The incident occurred during a welcoming event for first-year students.
In January 2022, following joinder proceedings, amended her particulars of claim to join Superstrike Investments (Pty) Ltd (Superstrike) as a third defendant. Superstrike filed a special plea of prescription, contending that as the plaintiff's cause of action arose on 23 January 2016 (being the date of the incident), her claim against it would have prescribed at midnight on 22 January 2019. The parties agreed that the special plea would be determined separately on a limited body of evidence. The court a quo dismissed the special plea.
On appeal, the majority approached the matter on the basis that the central issue was whether the plaintiff was deemed to have had knowledge of the identity of Superstrike. This required an assessment of whether the plaintiff would have acquired such knowledge had she exercised reasonable care and based on the information available to her at the time of either the incident or when she instituted the claim. The majority held that the plaintiff had sufficient information available to her, including a Memorandum of Agreement she had signed before moving into her residence, which identified Superstrike as the lessor.
The majority rejected the explanation that the plaintiff's parents had co-signed some of the lease documents, finding no reasonable explanation why the plaintiff would not have knowledge of the Memorandum she had signed. Her explanation of signing documents without reading them and simply entrusting everything to her parents was indicative of adopting a passive stance, which has been criticised in previous decisions. The plaintiff was not required to have knowledge of the legal relationships between the parties. A reasonable reader of the welcoming program and the Memorandum would have been able to deduce that Superstrike was responsible for the accommodation, the Academy and the welcoming program. The appeal was accordingly upheld with costs.
In a substantial dissenting judgment, the minority warned that as prescription limits a party's right of access to court, a defendant who raises the defence should only succeed if they discharge their onus and establish the defence squarely on what has been pleaded. In certain circumstances, separating a special plea of prescription from the merits, where the primary facts (as opposed to conclusions of law, which are not "facts" for the purposes of section 12(3)) in possession of the plaintiff may be conclusively determined, may not be appropriate.
The judgment serves as a caution that where a party adopts a supine approach in the prosecuting its claim, the deeming provisions of section 12(3), in terms of which a party is deemed to have knowledge that could have been acquired by exercising reasonable care, may operate to their detriment.
