This blog is co-authored by Dashia Govinden, a candidate attorney.
In June 2025 the High Court held that the claim for damages caused during a telecommunications infrastructure installation, was not instituted within the legally prescribed timeframe. The dispute required the court to interpret the provisions of the Prescription Act, 1969, particularly section 12(3), and assess whether the claimant had the requisite knowledge to act timeously.
The claimant instituted proceedings for the recovery of damages caused by a metal panel that fell from a gridline during works undertaken by the first defendant’s appointed contractors in November 2015. While the damage was identified on 18 November 2015, the claimant only served summons on 21 November 2018, three days after the requisite three-year prescription period had lapsed in terms of section 11(d) of the Prescription Act.
The first and second defendants raised a special plea of prescription, arguing that the claimant had sufficient knowledge on the day of the incident to institute proceedings and had failed to do so within the prescribed period. The claimant, however, contended that prescription had not commenced on that date as it was unaware of the identity of the responsible party and could not ascertain the facts giving rise to the debt.
The court’s interpretation of section 12(3) of the Prescription Act was pivotal. That section provides that a debt is not deemed to be due until the creditor knows the identity of the debtor and the facts from which the debt arises, unless such knowledge could have been acquired through the exercise of reasonable care. The court underscored that prescription begins to run when a creditor has knowledge of the minimum facts necessary to sustain a cause of action. A party does not need “perfect knowledge” or absolute certainty to initiate a claim.
The court held that the claimant’s claim against the first defendant, which was based on vicarious liability, did not require identification of the individual contractor responsible for the damage. By 18 November 2015, the claimant knew that the first defendant had been granted access to the site, that its appointed teams were working in the affected area, and that damage had occurred. These facts were sufficient to constitute the minimum knowledge required to initiate legal action.
The court similarly found against the claimant in relation to the second defendant. It held that the claimant had failed to act with reasonable diligence in determining the responsible party. Simple inquiries made at the time, could have yielded the necessary information. The claimant’s failure to conduct timely investigations or pursue basic questions meant it was deemed to have acquired the requisite knowledge on the date of the incident.
The High Court’s decision offers a clear and measured application of prescription law, reaffirming that litigants must act diligently and cannot delay proceedings until every uncertainty is resolved. The ruling reiterates that the law only requires only sufficient, not exhaustive, knowledge to trigger the running of prescription. By failing to act timeously despite having access to material facts indicating potential liability, and notwithstanding the possession of sufficient information to initiate proceedings, the claimant ultimately forfeited its right to recover damages, rendering the claim unenforceable by operation of prescription. Bear in mind that the failure is not related to why a summons was not issued in the first few days of the event by what was done for the next three years. Supine behaviour is not encouraged.
City of Cape Town v Cell C Limited and Others (20689/2018) [2025] ZAWCHC 246 (10 June 2025)