Ignorance of the Law (Still) Does Not Stop the Clock

In the judgment of Superstrike Investments (Pty) Ltd v Van der Merwe (Case no A305/2024) [2026] ZAWCHC (7 April 2026), the Western Cape High Court dissected section 12(3) of the Prescription Act 68 of 1969 (“the Prescription Act”). What this judgment reveals is something far more instructive: a cautionary tale about the consequences of passivity, and a firm restatement of what the Prescription Act actually demands of claimants.

In this case, the respondent (plaintiff in the main action) allegedly sustained injuries on 23 January 2016, whilst swinging from a rope tied to a tree near a dam in Stellenbosch. The respondent collided with a submerged tree stump as she hit the water, after letting go of the rope while she was above the dam. This occurred during a welcoming event for first-year students at Stellenbosch University (“the University”). In December 2018, the respondent instituted a claim for damages citing the ISA Carstens Academy (Pty) Ltd (“the Academy”) and the University as defendants, alleging that one or both of them operated the student residence where the respondent stayed. It was only after the Academy raised a special plea of non-joinder pointing to Superstrike Investments (Pty) Ltd (“Superstrike”) as the entity controlling the residence, that the respondent sought to join Superstrike to the action in May 2020. The joinder application was granted on 13 December 2021. The amended summons was served on Superstrike on 26 January 2022. In reply, Superstrike raised a special plea of prescription arguing that the respondent’s claim prescribed on 22 January 2019, however, the special plea was dismissed by the court a quo. Superstrike subsequently brought an appeal before the Western Cape High Court.

The case turned on section 12(3) of the Prescription Act which provides that a debt will not become due until the creditor has knowledge of the identity of the debtor and the facts from which the debt arises. Critically, the provision deems a creditor to have such knowledge if it could have been acquired through the exercise of reasonable care. The distinction between actual and constructive knowledge sits at the heart of the judgment, and its practical implications are significant.

Prior to Superstrike’s joinder to the action, the respondent had a welcoming program, memorandum of agreement (“the Agreement”) and indemnity in her possession.  The Agreement was signed by the respondent and her father on 15 January 2016, and provided that the Agreement was concluded between Superstrike trading as “Isa Dameskoshuis” and the respondent, and further that Superstrike supplied the room at the relevant accommodation. The respondent attempted to argue the following:

• that she did not read the Agreement upon signing, as her father oversaw the administration relating to her studies; and
• that she was unaware of Superstrike’s involvement until she consulted her attorneys around July / August 2020.

The Court was, however, unpersuaded because a reading of the documents as a whole, made Superstrike’s involvement unmistakeable.

Based on the Court’s consideration of the surrounding circumstances, it was stressed that the respondent acted passively when she blindly signed the documents, as she could have easily ascertained Superstrike’s identity when her claim arose. The respondent was content to be supine, despite the sufficiency of the information at her disposal.

In light of section 12(3) of the Prescription Act, the respondent’s actual knowledge was not required in the circumstances, as constructive or deemed knowledge of a debtor’s identity suffices to commence prescription. In addition, the Court asserted that section 12(3) of the Prescription Act requires knowledge of the facts underlying the debt and not knowledge of a legal opinion or the existence of a legal remedy.

The judgment reinforces a principle that is sometimes underestimated in practice: prescription does not wait for legal advice. Section 12(3) of the Prescription Act requires knowledge of the facts underlying the debt, and not knowledge of a legal remedy, legal opinion, or the strength of a potential claim. Once a claimant has or reasonably should have the factual building blocks to identify a debtor, the clock begins. The test is objective. If the information was reasonably available and a diligent person would have acted on it, ignorance affords no protection. In prescription terms, it can be the difference between a live claim and an extinguished one.