This blog is co-authored by Lesedi Dube, candidate attorney.
A recent decision by the Western Cape High Court addressed the question of whether a claim to compel the transfer of property under a deed of sale had prescribed due to the applicant buyer’s delay in enforcing his rights. The deed of sale was dated 25 July 2024. The applicant had paid the purchase price and contributed to municipal arrears but failed to take formal steps to enforce transfer for over six years. The court was asked to determine if the applicant’s claim had become unenforceable because too much time had lapsed without action. The court held that the claim had prescribed under section 12(1) of the Prescription Act and dismissed the application with costs.
The respondent, facing financial difficulties, agreed to sell a share in the property to the applicant to avoid foreclosure. The applicant paid the purchase price and contributed to municipal arrears over the period 2016 to 2021, but the transfer was never effected. Despite these payments, the applicant took no meaningful steps to enforce his rights for several years, only making an informal request for transfer in February 2021 over six years after the contract was signed. A formal demand followed in October 2023. The application to court was launched in January 2024.
The issue before the court was whether the applicant’s claim for transfer had prescribed three years after the debt became due under the Prescription Act. The court examined the deed of sale and found that although no specific date for transfer was stipulated, the obligations of both parties were to be performed immediately after signature or at least within a reasonable time. The applicant’s right to claim transfer therefore arose either immediately upon conclusion of the contract or at the latest within a reasonable period thereafter.
The applicant argued that prescription had not commenced or had been interrupted because certain conditions such as the settlement of the respondent owner’s mortgage bond had not yet been fulfilled. The court rejected this assignment, finding no clear intention in the contract to postpone the right to claim transfer until the mortgage was settled. The court also dismissed arguments that payments towards municipal arrears or the existence of reciprocal obligations delayed or interrupted prescription as these did not amount to the kind of reciprocal debts or acknowledgements of liability required by the Prescription Act.
The court emphasised that the law expects creditors to act with reasonable diligence in enforcing their rights. The applicant had all the necessary information to demand transfer and institute proceedings but failed to do so within the prescription period. The court found that the claim for transfer had prescribed, and the application was dismissed with costs.
The judgment offers a cautionary tale about the risks of relying on informal arrangements and delayed enforcement. It confirms that where no specific transfer date is stipulated, the right to claim arises either immediately or within a reasonable time after contract commencement. Partial performance, unresolved conditions, or informal requests do not suspend prescription. The applicant’s failure to act within the prescribed three-year period required by the Prescription Act resulted in the transfer claim being unenforceable. The message from this judgment is clear; time runs quietly, and rights not enforced with diligence may be lost due to prescription.
De Wet v Barron and Others (796/2024) [2025] ZAWCHC 378 (22 August 2025)