Tractor tussle round two – prescription and the rei vidicatio

The Supreme Court of Appeal (SCA) has recently pronounced on a misconception regarding prescription and clarified that a claim for the return of a "thing" under the actio rei vindication, (the action of an owner for return of his property) does not prescribe after three years.

While this conclusion may seem logical, many people have and will continue to overlook the relevance of the word "debt" as used in the Prescription Act, No 68 of 1969 (Act).

In the matter of Absa v Keet (817/13) [2015] ZASCA 81 (28 May 2015), the bank took cession of the right, title and interest in an instalment sale agreement from Eastvaal Motors Limited, which Eastvaal had concluded with Keet for the sale and purchase of a tractor. In terms of the agreement ownership of the tractor was reserved and would not pass to Keet until fully paid off. The final instalment in the agreement was due on 1 November 2007. It was also an express provision of the agreement that should Keet fail to fulfil his obligations, Absa would repossess the tractor.

Keet failed to fulfil his obligations in terms of the agreement and on 14 December 2011, a summons was served on him, claiming return of the tractor. Keet defended the action and raised a special plea on the merits of the case. The special plea is at the centre of this decision. Keet argued that the "amount alleged to be outstanding [by Absa] became due and payable" on 1 November 2007 and thus Absa's claim for the return of the tractor had prescribed.

Keet based this assertion on s11(d) of the Act which provides for a prescription period of three years for a 'debt', meaning that, if indeed the claim for repossession of the tractor was a 'debt' in terms of the Act, the 'debt' prescribed on 31 October 2010.

The court of first instance found that the claim in question had indeed prescribed. The court ruled that the case of Staegemann v Langehoven 2011 (5) SA 648 (WCC), (which held that "a vindicatory claim being a claim to ownership in a thing and not a claim for payment of a debt, does not prescribe after three years"), was wrongly decided.

The matter was, however, taken on appeal to the SCA with success. The SCA held that the genesis of the misconception of the word 'debt' arose in Evins v Shield Insurance Co Ltd 1979 (3) SA 1136 (W) where it was said that, "the word 'debt' in the Prescription Act must be given a wide and general meaning denoting not only a debt sounding in money which is due, but also, for example, a debt for vindication of property". The SCA, however, regarded this as a mere "comment in passing" and therefore not binding on it.

Ultimately, the SCA reviewed the case law on the matter and found that Staegemann was "on all fours" with the present case. The SCA held that there has always been a clear distinction between real rights (the rights of legal persons to things or property), and personal rights (arising from the relationship between two legal persons). As a result, conflating acquisitive prescription in regard to things (subject to a thirty year prescription period), with extinctive prescription of ordinary debts (subject to a three year period if they fall into s11(d) of the Act) is not in keeping with the intention of the Legislature.

Thankfully it is now clear that a claim by an owner for the return of their asset (under the actio rei vindicatio), is not a 'debt' (as used in Chapter III of the Act) to which extinctive prescription is applicable.