Authored by Deniro Pillay.
In July 2026, the Supreme Court of Appeal dismissed a building contractor’s special plea of prescription in response to claim by a housing consumer following the breach of a building warranty by the contractor in terms of the Housing Consumers Protection Measures Act, 1998 (the Act).
The consumer entered into an agreement with the contractor in September 2015 to build his residential home. The agreement incorporated the section 13(2) warranties of the Act, namely: the house was to be constructed in a workmanlike manner fit for habitation and in accordance with the National Home Builders Registration Council (NHBRC) technical requirements. The contractor warranted that it would, at its own cost and upon demand by the consumer, rectify any major structural defects caused by non-compliance with the NHBRC technical requirements and occurring within a period of not less than 5 years from the occupation date, and notified to the contractor within that period.
The construction of the house was completed in September 2016 and the consumer took occupation on 31 October 2016. During December 2016, the consumer observed that there were structural defects in the house, which were reported to the contractor. The contractor attended to remedial work on 4 January 2017.
In November 2017, the consumer informed the contractor of further structural defects. The contractor appointed an engineer to conduct an inspection to identify the nature of the defects and the required remedial work. The engineer’s report, which noted the required repairs and that the house was uninhabitable, was submitted on 30 January 2018. On 1 June 2018, the consumer demanded that the contractor attended to the required repairs. On 5 October 2018, the contractor commenced with the repairs but was unsuccessful with the repairs due to the nature of structural defects.
On 8 June 2021, the consumer submitted a complaint to the NHBRC for breach of the warranties forming part of the agreement with the contractor. On 9 June 2021, the NHBRC sent a letter notifying the contractor that it had an obligation to rectify the structural defects in terms of the warranties in section 13(2) of Act and requesting the contractor to resolve the complaint.
On 20 January 2021, the consumer instituted an action against the contractor for damages arising from the breach of the section 13(2) warranties.
The contractor raised a special plea of prescription, arguing that the claim became due when the consumer first became aware of the structural defects by no later than December 2017 and, therefore, the claim prescribed in December 2020, one month before the consumer instituted the action.
The issue before the court was when does a debt, arising from a contractor’s breach of a building warranty to repair major structural defects, become ‘due’ within the meaning of section 12(3) of the Prescription Act, 1969.
The court noted that section 13(2) of the Act does not prescribe a time period within which the contractor must complete repairs after being notified of the structural defects. Notification must be within the 5 year period. The law therefore imposes an obligation to rectify at the contractor’s cost within a reasonable time. The provision contemplates that the contractor will be afforded a reasonable opportunity to comply with the obligation to rectify after being notified. Only when the contractor has refused to repair or has failed to do so within a reasonable time is there a breach of the warranty.
The court noted further that the minimum facts which a consumer must know before a debt for damages arising from a breach of the section 13(2) warranty becomes due are: that there are major structural defects in the home; those defects were caused by non-compliance with the NHBRC technical requirements; and that the contractor has failed or refused to repair the major structural defects at its own costs. Until that point, the consumer is not in a position to enforce their claim for damages based on the breach of the section 13(2) warranty.
The court confirmed that prescription runs only when the creditor has a complete cause of action and is in a position to enforce the right in law, not merely when the right arises. Mere awareness of the defects is not knowledge of a legally enforceable claim. The consumer only acquired the minimum facts necessary to sustain a cause of action on 5 October 2018, when it became apparent that, although the defects were being attended to, remedial work was ineffective. As a result, the consumer’s claim had not prescribed and, therefore, the contractor’s defence of prescription failed.
Janse van Vuuren v WJB Stieger Konstruksie (Pty) Ltd (1459/2024) [2026] ZASCA 102 (24 July 2026)