THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Reportable
Case No: 20866/2014

In the matter between:
FEEDPRO ANIMAL NUTRITION (PTY) LTD
APPELLANT

and

READA ANNA NIENABER NO                                     FIRST RESPONDENT
MARITA ELIZABETH NIENABER NO                  SECOND RESPONDENT

Neutral citation: Feedpro Animal Nutrition v Nienaber NO (20866/2014) [2016]
ZASCA 32 (23 March 2016).

Bench:
Lewis, Petse, Willis, Saldulker JJA and Kathree-Setiloane AJA

Heard:
19 February 2016

Delivered: 23 March 2016

Summary: Prescription – Dismissal of special plea: the trial court erred
in separating the special plea from the remaining issues in the trial where the
agreed facts in the stated case were inadequate: need for evidence to be led: matter
remitted to the trial court for determination of the special plea together with the

remaining issues in light of evidence to be led.

______________________________________________________________________

ORDER
______________________________________________________________________

On appeal from: Free State Division of the High Court, Bloemfontein (Naidoo J
sitting as court of first instance):
(1)
The appeal is dismissed with costs save that the order is substituted in the
following terms:
„(a) The order of the trial court dismissing the appellant‟s special plea of
prescription is set aside.
(b) The matter is remitted to the Free State Division of the High Court for
determination of the special plea of prescription together with the remaining issues
in light of evidence to be led‟.
______________________________________________________________________

JUDGMENT
______________________________________________________________________

Kathree - Setiloane AJA (Lewis, Petse, Willis, Saldulker JJA concurring):
[1] In November 2012, Feedpro Animal Nutrition (Pty) Ltd (Feedpro) instituted
action in the Free State Division of the High Court against the trustees of the
Nienaber Trust (the Trust) for payment of the purchase price of R502 895 for
fertilizer products which it provided to the Trust. The Trust instituted a
counterclaim in the amount of R1 086 650 for damages sustained as a result of the
late delivery of the fertilizer products.

[2] Feedpro raised a special plea of prescription, which by order of the trial
court, in terms of rule 33(4) of the Uniform Rules of Court, was adjudicated upon
separately from the remaining issues in the trial. The parties agreed, in terms of
rule 33(1) of the Uniform rules, that the special plea would be adjudicated upon
with reference to a written statement of agreed facts in the form of a stated case.

[3] The stated case records that the special plea of prescription should be
adjudicated with reference to the pleadings (including the request for further
particulars and further particulars) and the agreed facts. The agreed facts for
purposes of the special plea of prescription are, inter alia, these:
(a)
The Trust ordered fertiliser products from Feedpro on 1 December 2009.
In terms of the oral agreement between the parties, the fertiliser products ordered
on 1 December 2009 had to be delivered by no later than 22 December 2009. They
were, however, only delivered on 5 January 2010. This constituted a breach of the
agreement by Feedpro.
(b)
The Trust sent a letter, dated 22 January 2010, to Feedpro recording that as a
result of the late delivery of the fertiliser products it had suffered damages, and that
because the damages could not be accurately determined, at that stage, it proposed
that the parties agree that the damages be calculated during the harvest of the crop.
The concluding paragraph of this letter reads:
„Die skade kan nie nou akkuraat bepaal word nie, ek sal verkies dat daar nou „n ooreenkoms aangegaan
word dat die skade tydens strooptyd bepaal word.‟
When the parties failed to reach the proposed agreement, the Trust‟s attorney sent
a letter, dated 11 February 2010, to Feedpro recording that the Trust had suffered
damages but, at that stage, the damages could not be ascertained with any
certainty. This letter reads:

„U het egter kontrakbreuk gepleeg en eers op 5 Januarie 2010 afgelewer. Weens die laat ontvangs van die
blyk dit dat ons kliënt ŉ misoes het. Ons kliënt het dus skade gely, welke skade nie op hierdie stadium
met sekerheid bepaal kan word nie. Ons stel u ook hiermee in kennis dat sou u dagvaarding hierin
uitreik dit ons instruksie is om „n teineis in te stel.‟
(c)
On 26 February 2010, the Trust requested Herman Smith, an assessor, to
conduct an assessment of the loss sustained by the Trust as a result of the crop
failure. The assessment report of Smith was made available to the Trust after
February 2010. The exact extent of the damages suffered by the Trust due to the
crop failure only became known to it after this date. The Trust‟s counterclaim for
damages was served on Feedpro on 27 February 2013.

[4] The parties‟ respective contentions are recorded in the statement of case.
Feedpro contended that prescription of the Trust‟s counterclaim commenced to run
by no later than 26 February 2010 (thus before 26 February 2010), with the result
that the Trust‟s counterclaim had become prescribed. The Trust, in turn, contended
that the prescription of its counterclaim did not commence to run before 26
February 2010 (thus after 26 February 2010), with the result that its counterclaim
has not become prescribed. The trial court (per Naidoo J) found in favour of the
Trust, and dismissed Feedpro‟s special plea on the basis that the Trust only became
aware that it suffered damages in March 2010.  Feedpro appeals with leave of the
court below.

[5] The primary issue in this appeal is whether the Trust became aware before
26 February 2010 that it had suffered damages as a result of Feedpro‟s breach of
contract. In terms of s 12(3) of the Prescription Act 68 of 1969 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. However, in terms of the proviso to s 12(3),

a creditor shall be deemed to have such knowledge if he could have acquired it by
exercising reasonable care.1 It is well established that the defendant bears the onus
of proving when the plaintiff acquired or should be deemed to have acquired the
knowledge to institute a counterclaim against it.2

[6] Feedpro‟s contention, that the Trust had become aware of the loss suffered
prior to 26 February 2010 is premised upon the contents of the two letters, dated 22
January 2010 and 11 February 2010, respectively which, it submits, explicitly
establish that the Trust had sustained damages as a result of Feedpro‟s breach of
contract prior to 26 February 2010. In support of this contention, Feedpro argues
that the Trust would not have advised it that it had sustained damages as a result of
the delay in the delivery of the fertiliser products, and threatened it with a
counterclaim, if the loss sustained was totally unconnected to its breach of
contract. In addition, Feedpro contends that the Trust‟s appointment of an assessor,
on 26 February 2010, to conduct an assessment of its loss, also confirms that the
Trust became aware, before this date, of the loss sustained as a result of Feedpro‟s
breach of contract. Feedpro, therefore, submits that on the agreed facts there was
sufficient evidence before the trial court to find that damages would on a balance
of probabilities eventuate, and that it was only the extent of the damages sustained
by the Trust that was uncertain prior to 26 February 2010.

[7] I disagree. It is evident from the agreed facts that there is indeed insufficient
evidence to determine when the Trust became aware that it had sustained a loss as
a result of the late delivery of the fertiliser products by Feedpro. The contents of

1 It is common cause that the counterclaim is a debt as envisaged by s 10 of the Act and that the applicable
prescription period in respect of the debt forming the subject matter of the counterclaim is three years. In terms of
s 11(d) read with s 12(1) of the Act, civil debts prescribe three years from the date the debt is due.
2 Minister of Finance & others  v Gore NO [2006] ZASCA 98; [2007] 1 All SA 309 (SCA) para 13.

the two letters relied upon by Feedpro are, to my mind, ambivalent in relation to
when the Trust became aware that it had sustained damages as a result of crop
failure. The concluding paragraph of the first letter – which is all that this court is
privy to − merely states that damages cannot, at this stage, be accurately calculated
and proposes that the parties reach an agreement that the damages would only be
calculated during harvest of the crop.

[8] By contrast, the second letter appears to suggest that, due to the late delivery
of the fertiliser products, the Trust has suffered a crop failure and hence damages
but that damages could not, at that stage, be calculated with any certainty. When
viewed together, the contents of the two letters are not harmonious. While the latter
seems to suggest crop failure, the former does not. Moreover, if the crops had
actually failed, there is simply no indication from the agreed facts when this
occurred. It is also not clear from the letters when crop failure is discernible – is it
before or after harvest of the crop? Crucially, the date of harvest is starkly absent
from the agreed facts.

[9] When the inadequacy of the agreed facts, as recorded in the stated case, was
put to counsel for Feedpro during argument of the appeal, he submitted that any
such inadequacy may be balanced by drawing the necessary inferences from the
agreed facts. While a court may in a stated case, in terms of rule 33(3) of the
Uniform rules, draw any inference of fact from the agreed facts as if proved at trial,
the Rule presupposes that the agreed facts are adequately stated for determination
of the issues in question. Where, as in this case, the agreed facts are discordant,
ambivalent, and inadequately stated for purposes of deciding whether the Trust‟s
counterclaim has prescribed, the process of inferential reasoning has no place.

[10] That said, what Feedpro seeks is for the court to embark upon a process of
assuming certain core facts which are absent from the agreed facts. This, in my
view, will do violence to the purpose of a stated case as contemplated in rules
33(1) and (2) of the Uniform rules, which is that the resolution of a stated case
proceeds on the basis of agreed facts, without the necessity of leading evidence. It
is clear, therefore, that a stated case must be decided upon the agreed facts and any
inferences of fact that may be drawn from them. In other words, it would be
impermissible for a court, which is adjudicating a dispute on a statement of agreed
facts, to have regard to, or assume facts, which fall outside the scope and ambit of
the agreed facts – in order to compensate for inadequately stated agreed facts vis -
á - vis the question for determination. In Minister of Police v Mboweni & Another,3
this court cautioned against deciding a stated case on inadequate facts. Wallis JA
stated:
„It is clear therefore that a special case must set out agreed facts, not assumptions. The point was
re-emphasised in Bane & Others v D’ Ambrosi,4 where it was said that deciding such a case on
assumptions as to the facts defeats the purpose of the rule, which is to enable a case to be
determined without the necessity of hearing all, or at least a major part, of the evidence. A judge
faced with a request to determine a special case where the facts are inadequately stated should
decline the request. The proceedings in Bane v D’ Ambrosi were only saved because the parties
agreed that in any event the evidence that was excluded by the judge‟s ruling should be led, with
the result that the record was complete and this court could then rectify the consequences of the
error in deciding the special case.‟

[11] The agreed facts in the current appeal are inadequately stated for purposes of
determining if the Trust had the requisite knowledge contemplated in s 12(3) of the
Act for prescription of its counterclaim to commence running. Crucially, the

3 [2014] ZASCA 107; 2014 (6) SA 256 para 8.
4 [2009] ZASCA 98; 2010 (2) SA 539 (SCA) para 7.

agreed facts do not indicate when the Trust became aware of whether any loss was
sustained as a result of Feedpro‟s breach of contract.  As the Trust argued, it could
not have instituted a claim against Feedpro until it had knowledge of whether it
had sustained any damage. If regard is had to the agreed facts, as well as the
pleadings, including the request for further particulars and the further particulars, it
is unclear whether, by 26 February 2010, (when the Trust had instructed Smith to
assess the damages suffered), it was aware that it had sustained loss at all.
Significantly, in its request for further particulars, Feedpro pertinently requested
the Trust to state when and how it first became aware of the crop failure.   The
Trust‟s reply to the former request is: „Nadat met die stroop van die mielie[s] begin
is…‟ and its reply to the latter is: „Daar is reeds gedurende die groeitydperk
opgemerk die plante het „n stikstof tekort, maar die misoes is bevestig met die
stroop van die mielies.‟ The further particulars of the Trust reveal that the Trust
could only have become aware of the loss sustained once harvest of the crop had
been completed. However, neither this fact, nor the date of harvest is apparent
from the stated case. It is simply impossible, in my view, for the court to determine
the date when prescription commenced to run in respect of the Trust‟s
counterclaim, without hearing evidence on, amongst other things, when the crop
was harvested and thus when it was established that loss had been suffered.

[12] Feedpro‟s reliance on the contents of the two letters, which form part of the
agreed facts, is misplaced. Although the Trust may well have been of the view, at
the time, that Feedpro‟s breach would result in it suffering damages, this was not
sufficient to constitute knowledge for purposes of s 12(3) of the Act. As to the
nature of knowledge that a creditor should have in order for prescription to
commence running for purposes of s 12(3) of the Act, this court stated as follows

in Minister of Finance & Others v Gore NO (in relation to the defendant‟s
knowledge):5

„The defendants‟ argument seems to us to mistake the nature of “knowledge” that is required to
trigger the running of prescriptive time. Mere opinion or supposition is not enough: there must be
justified, true belief. Belief, on its own, is insufficient. Belief that happens to be true (as Rabie
had) is also insufficient. For there to be knowledge, the belief must be justified.
„It is well established in our law that:
(a)
Knowledge is not confined to the mental state of awareness of facts that is produced by
personally witnessing or participating in events, or by being the direct recipient of first-hand
evidence about them.
(b)
It extends to a conviction or belief that is engendered by or inferred from attendant
circumstances.
(c)
On the other hand, mere suspicion not amounting to conviction or belief justifiably
inferred from attendant circumstances does not amount to knowledge.
It follows that belief that is without apparent warrant is not knowledge; nor is assertion and
unjustified suspicion, however passionately harboured; still less, is vehemently controverted
allegation or subjective conviction.‟

[13] I do not consider the tentative assertions of the Trust, in the letters of 22
January 2010 and 11 February 2010 respectively, to mean that it had actual or
deemed knowledge of the damages it sustained. The suggestion of an agreement
that the damages be ascertained during harvest of the crop, demonstrates the
Trust‟s uncertainty on the question of whether it suffered damages or not at that
stage. Logically, and on the probabilities, it would have been impossible for the
Trust to have knowledge of any loss or damages sustained prior to 26 February
2010. The fertilizer could have only been provided to the crop after its delivery on
5 January 2010, after which the crop would have continued with its growth until it

5 2007 (1) SA 111 (SCA) paras 18 and 19; [2007] 1 All SA 309 (SCA).

was harvested some months later. It would have been only at this stage that a
determination could have been made as to whether a loss was suffered. Harvest
time is clearly the determinative date – yet it is not apparent from the agreed facts
when harvest of the crop occurred.

[14] Quite clearly, therefore, it is impossible from the agreed facts to determine
when the Trust first became aware that it suffered loss for purposes of s 12(3) of
the Act. It is perplexing how the trial court could have determined that the Trust
only became aware that it had suffered damages in March 2010, when that was not
an agreed fact. The trial court, accordingly, erred in assuming March 2010 to be
the period during which the Trust became aware that it had suffered damages as a
result of Feedpro‟s breach of contract. The trial court also erred in assuming that
the harvest of the crop would only take place in June 2010 – when that too was not
an agreed fact.

[15] It is regrettable that the trial court, despite ample guidance from this court,6
deemed it appropriate, in terms of rule 33(4) of the Uniform rules, to separate the
special plea from the remaining issues in the trial, without first applying its mind to
whether the separation of the special plea was convenient and appropriate in
circumstances where, the agreed facts were wholly inadequate and, evidence
needed to be led in order to determine the special plea of prescription. In the
absence of evidence on when the crop failure occurred, the trial court was simply
not in a position to determine the special plea in the Trust‟s favour. The trial court,
accordingly, erred in: (a) separating the determination of the special plea from the
remaining issues therein, without giving proper consideration to the issues in the

6 Denel (EDMS) Bpk v Vorster [2004] ZASCA 4; 2004 (4) SA 481 (SCA) para 3, Absa Bank Ltd v Bernert 2011 (3)
SA 74 (SCA) para 2.

trial, and the need for evidence to be led by the parties on these issues, and (b)
deciding the special plea on inadequately stated agreed facts.

[16] In the result, I make the following order:
(1) The appeal is dismissed with costs save that the order is substituted in the
following terms:
„(a) The order of the trial court dismissing the appellant‟s special plea of
prescription is set aside.
(b) The matter is remitted to the Free State Division of the High Court for
determination of the special plea of prescription together with the remaining issues
in light of evidence to be led‟.

_________________
F Kathree-Setiloane
Acting Judge of Appeal

APPEARANCES:

For Appellants:

R Grundlingh
Instructed by:
Lampen Attorneys,
Bloemfontein

For Respondent:

D T v R Du Plessis SC

Instructed by:

HW Smith & Marais,
Bloemfontein