THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 659/2020

In the matter between:
DAVE PRETORIUS
APPELLANT
and
KENNETH BEDWELL
RESPONDENT

Neutral citation:
Dave Pretorius v Kenneth Bedwell (659/2020) [2022] ZASCA
4 (11 January 2022)
Coram:
VAN DER MERWE, MOKGOHLOA and HUGHES JJA and
PHATSHOANE and WEINER AJJA
Heard:
2 November 2021
Delivered:
This judgment was handed down electronically by circulation to the
parties’ legal representatives via email. It has been published on the Supreme
Court of Appeal website and released to SAFLII. The date and time for hand-down
is deemed to be 9h45 on 11 January 2022.
Summary: Prescription – of damages claim based on acceptance of repudiation
of contract – when prescription commences to run – innocent party’s cause of
action for damages accrues when election to treat the contract as at an end is
communicated to repudiating party – special plea correctly dismissed.

ORDER

On appeal from: Gauteng Division of the High Court, Johannesburg (Wepener,
Fisher and Mahalelo JJ, sitting as court of appeal):

The appeal is dismissed with costs.

JUDGMENT

Mokgohloa JA (Van Der Merwe and Hughes JJA and Phatshoane and
Weiner AJJA concurring)

[1] This is an appeal against the judgment of the Full Court of the Gauteng
Division of the High Court, Johannesburg (the full court), upholding the
respondent’s appeal and substituting the trial court’s order with one dismissing the
appellant’s special plea of prescription with costs. The appeal is with the special
leave of this Court.

[2] The background of the matter is as follows. The respondent, Mr Kenneth
Bedwell, was the owner of a holiday home in Oyster Bay in the Eastern Cape (the
property). During 2007, he needed money to complete a guest house project he
had started. In order to gain access to further funds, Mr Bedwell requested the
appellant, Mr Dave Pretorius (who was his brother-in-law), to provide him with a
loan against a tender of the property as security. In terms of a written agreement
that was subsequently rectified by agreement, they eventually agreed that Mr
Pretorius would purchase the property for an amount of R1 850 000. Mr Pretorius
would obtain a loan from a bank in the amount of R1 650 000 against the
registration of a mortgage bond over the property. Mr Bedwell would continue to
occupy the property and would remain liable to maintain the property at his own

cost and pay all rates and taxes. As soon as Mr Bedwell qualified for a mortgage
loan in his own name, that would make it possible to cancel the mortgage bond
registered over the property in the name of Mr Pretorius, Mr Pretorius would
transfer the property back into the name of Mr Bedwell. Mr Pretorius paid the
purchase price and the property was registered into his name on 18 October 2007.

[3] Soon thereafter the relationship between Mr Bedwell and Mr Pretorius
deteriorated. On 8 April 2008, Mr Bedwell visited the property in the company of
his friends. When Mr Pretorius learned that Mr Bedwell was at the property, he
made a telephone call to Mr Bedwell and instructed him to leave the property
forthwith. However, Mr Bedwell and his friends only left the property the next
morning.

[4] On 8 April 2008, Mr Bedwell wrote a letter to Mr Pretorius raising his concern
relating to Mr Pretorius’ attitude and stated the following:
‘(1)  I suggest that after your threats this afternoon that we set up a polygraph test between
the three of us and we have one [take] statements through your lawyers and my lawyer
analysed. NB VERBAL agreements are binding.
(2)  All ASSETS in the house belong to me plus the agreement of SALE.
(3)  Please reply on the above fax no.’ (Original emphasis.)

[5] Mr Pretorius did not respond to Mr Bedwell’s letter. He instead sent a letter
through his attorney to the security company responsible for security at the
property and to Chas Everitt real estate agents, informing them that Mr Bedwell
would no longer be entitled to occupy the property. Indeed, Mr Bedwell received a
telephone call from the security company wherein he was informed of the letter the
security company had received instructing it to deny him access to the property.

[6] During 2009, Mr Pretorius sold the property to a third party. Mr Bedwell only
learned of the sale after his son had attended a birthday party at Mr Pretorius’
house on 8 July 2010. The son noticed furniture at Mr Pretorius’ house which had
been in the property. Upon making enquiries, Mr Pretorius told him that indeed he

had sold the property. The son informed Mr Bedwell that evening about the sale of
the property.

[7] On 11 October 2011, Mr Bedwell instituted action in the Gauteng Division
of the High Court, Pretoria (the trial court) against Mr Pretorius for damages in the
amount of R2 040 000. He based his claim on the repudiation of the contract by
Mr Pretorius, in that he had sold the property and the furniture. In paragraph 12 of
the particulars of claim, Mr Bedwell stated the following:
‘On or about 2009, [Mr Pretorius] repudiated the contract between the parties by selling
the Oyster Bay property to a third party . . . alternatively, on or about May 2009, [Mr
Pretorius] evicted [Mr Bedwell] from the Oyster Bay property, alternatively denied [Mr
Bedwell] further use of the Oyster Bay property, which repudiation [Mr Bedwell] has
accepted, alternatively, which is accepted herewith.’

[8] Mr Pretorius defended the action and raised a special plea of prescription.
He stated in his special plea that he had repudiated the contract on 8 April 2008
and since Mr Bedwell issued summons on 11 October 2011, the claim prescribed
in terms of s 11 of the Prescription Act 68 of 1969. By agreement the special plea
proceeded to trial as a separated issue. The trial court upheld the special plea and
dismissed Mr Bedwell’s claim with costs. Leave to appeal was refused. This Court
granted Mr Bedwell leave to appeal to the full court. As I have said, the full court
overturned the trial court’s decision and replaced it with an order dismissing the
special plea of prescription with costs. The issue on appeal is whether the order of
the full court was correct.

[9] The onus was on Mr Pretorius to prove that the claim of Mr Bedwell had
prescribed. This included proof of when prescription had commenced. As I have
said, Mr Pretorius pleaded that he had repudiated the contract on 8 April 2008
when he allegedly evicted Mr Bedwell from the property. According to him, this
was the date upon which the debt arose, and Mr Bedwell was, at that date, in a
position to reject the repudiation or accept it, cancel the contract and claim

damages. Mr Pretorius did not plead that the repudiation had been accepted or
that the contract was cancelled. The separated issue was formulated accordingly.

[10] It is settled law that repudiation of a contract occurs where one party to a
contract, without lawful grounds, indicates to the other party, whether by words or
conduct, a deliberate and unequivocal intention to no longer be bound by the
contract.1 Then the innocent party will be entitled to either: (i) reject the repudiation
and claim specific performance; or (ii) accept the repudiation, cancel the contract
and claim damages. If he or she elects to accept the repudiation, the contract
comes to an end upon the communication of the acceptance of the repudiation to
the party who has repudiated. Only then does a claim for damages arise.
Accordingly, prescription commences to run from that date.

[11] In my view, the special plea of prescription had to fail for a variety of
reasons. First, as I have demonstrated, in the absence of an allegation that the
repudiation of 8 April 2008 had been accepted and the contract cancelled, the
special plea did not disclose a defence in law. Secondly, in any event, the trial
court did not make a credibility finding against Mr Bedwell and his evidence had to
be accepted for purposes of determination of the appeal. On his evidence it is
doubtful that what occurred on 8 April 2008 objectively amounted to a repudiation
by Mr Pretorius, but even so, Mr Bedwell clearly did not accept such a repudiation
on that date. It follows that Mr Pretorius did not prove that the running of
prescription commenced on 8 April 2008 as alleged.

[12] For these reasons I find that Mr Pretorius’ special plea did not disclose a
defence in law and failed on the facts. The full court was correct in concluding that
it had to be dismissed.

[13] In the result, the appeal is dismissed with costs.

1 Nash v Golden Dumps (Pty) Ltd [1985] 2 All SA 161 (A); 1985 (3) SA 1 (A) at 22D-F

_________________
F E MOKGOHLOA
JUDGE OF APPEAL

Appearances

For appellant:

B Stoop SC
Instructed by:

Pennells Attorneys, Pretoria
Phatshoane Henney Attorneys, Bloemfontein

For respondent:

J P Vorster SC

Instructed by:

Lourens Attorneys, Brits
Symington De Kok Attorneys, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:
11 January 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and
does not form part of the judgments of the Supreme Court of Appeal
Dave Pretorius v Kenneth Bedwell (659/2020) [2022] ZASCA 4 (11 January 2022)
Today, the Supreme Court of Appeal (SCA) dismissed with costs an appeal brought by Dave
Pretorius (the appellant) against the judgment of the full court of the Gauteng Division of the
High Court, Johannesburg (the full court), upholding Kenneth Bedwell’s (the respondent)
appeal and substituting the trial court’s order with one dismissing the appellant’s special plea
of prescription with costs.

The background of the matter was as follows. The respondent, Mr Kenneth Bedwell, was the
owner of a holiday home in Oyster Bay in the Eastern Cape (the property). During 2007, he
needed money to complete a guest house project he had started. In order to gain access to
further funds, Mr Bedwell requested the appellant, Mr Dave Pretorius (who was his brother-
in-law), to provide him with a loan against a tender of the property as security. In terms of a
written agreement Mr Pretorius would purchase the property for an amount of R1 850 000. Mr
Pretorius would obtain a loan from a bank in the amount of R1 650 000 against the registration
of a mortgage bond over the property. Mr Pretorius paid the purchase price and the property
was registered into his name on 18 October 2007. Soon thereafter the relationship between
Mr Bedwell and Mr Pretorius deteriorated. On 8 April 2008, Mr Bedwell visited the property in
the company of his friends. When Mr Pretorius learned that Mr Bedwell was at the property,
he made a telephone call to Mr Bedwell and instructed him to leave the property forthwith.
During 2009, Mr Pretorius sold the property to a third party. Mr Bedwell only learned of the
sale on 8 July 2010.

On 11 October 2011, Mr Bedwell instituted action in the Gauteng Division of the High Court,
Pretoria (the trial court) against Mr Pretorius for damages in the amount of R2 040 000. He
based his claim on the repudiation of the contract by Mr Pretorius, in that he had sold the
property and the furniture. Mr Pretorius defended the action and raised a special plea of
prescription. He stated in his special plea that he had repudiated the contract on 8 April 2008
and since Mr Bedwell issued summons on 11 October 2011, the claim prescribed in terms of
s 11 of the Prescription Act 68 of 1969. By agreement the special plea proceeded to trial as a
separated issue. The trial court upheld the special plea and dismissed Mr Bedwell’s claim with
costs. Leave to appeal was refused. This Court granted Mr Bedwell leave to appeal to the full
court. The full court overturned the trial court’s decision and replaced it with an order
dismissing the special plea of prescription with costs. In the SCA the issue on appeal was
whether the order of the full court was correct.

The SCA found that the special plea of prescription had to fail for a variety of reasons. Firstly,
in the absence of an allegation that the repudiation of 8 April 2008 had been accepted and the
contract cancelled, the special plea did not disclose a defence in law. Secondly, in any event,
the trial court did not make a credibility finding against Mr Bedwell and his evidence had to be
accepted for purposes of determination of the appeal. On his evidence it was doubtful that
what occurred on 8 April 2008 objectively amounted to a repudiation by Mr Pretorius, but even
so, Mr Bedwell clearly did not accept such a repudiation on that date. It followed that Mr
Pretorius did not prove that the running of prescription commenced on 8 April 2008 as alleged.

For these reasons the SCA held that Mr Pretorius’ special plea did not disclose a defence in
law and failed on the facts. The full court was thus correct in concluding that it had to be
dismissed.

~~~~ends~~~~