Kuhne & Nagel A.G. Zurich v. APA Distributors [1981] (3) S.A.I.R. (O’Donovan J.)

Proper law of the contract determines prescription period rather than law of the forum

The plaintiff was a Swiss forwarding agent who issued proceedings in South Africa for the recovery of fees for arranging the shipment of a crane belonging to the defendant, a South African importer of engineering equipment. The claim arose out of a contract, the proper law of which was agreed to be Swiss law. The defendant pleaded that the claim had become extinguished by virtue of s.11(d) of the South African Prescriptions Act 68 of 1969, under which the relevant prescription period was three years. The plaintiff contended that Swiss law applied (which provided for a prescription period of 10 years) and therefore the claim was not time-barred.