ABSA Bank Beperk v De Villiers (443/98) [2000] ZASCA 168 (15 September 2000)

ABSA Bank Beperk v De Villiers (443/98) [2000] ZASCA 168 (15 September 2000)

The court held that the appellant failed to discharge the burden of proving that the completion of prescription was postponed under section 13(1)(g) of the Prescription Act. The facts established that the principal debt was no longer the subject of a claim against the insolvent estate after the confirmation of the first final liquidation and distribution account by the Master on 13 September 1993. There was no evidence that any realistic prospect of a dividend existed thereafter, nor that the claim remained active against the estate. Accordingly, any postponement of prescription ceased on that date. The appellant did not prove when the principal debt became due or when it would have...

Citation
[2000] ZASCA 168
Parties
Appellant: ABSA Bank Beperk; Respondent: Johannes Casparus de Villiers (Snr)
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
15 September 2000
Case Number
443/98
Procedural Posture
Civil Appeal / Appeal From a Provincial Division Judgment
Outcome
Appeal dismissed with costs.
Judges
Smalberger, Howie, Harms, Scott, Farlam
Legal Topics
Suretyship, Prescription, Burden of Proof, Insolvency, Novatio
Banking and Finance Civil Procedure Suretyship Prescription Burden of Proof Insolvency Novatio

Case Brief

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Parties

ABSA Bank Beperk

Appellant

Johannes Casparus de Villiers (Snr)

Respondent

Procedural Posture

Civil Appeal / Appeal From a Provincial Division Judgment

Legal Issues

  1. 1 Whether the principal debt and the suretyship debt were extinguished by prescription before the institution of proceedings.
  2. 2 Whether the completion of prescription was postponed under section 13(1)(g) of the Prescription Act 68 of 1969.
  3. 3 Who bears the burden of proof regarding the postponement of prescription under section 13(1)(g).

Ratio Decidendi

The court held that the appellant failed to discharge the burden of proving that the completion of prescription was postponed under section 13(1)(g) of the Prescription Act. The facts established that the principal debt was no longer the subject of a claim against the insolvent estate after the confirmation of the first final liquidation and distribution account by the Master on 13 September 1993. There was no evidence that any realistic prospect of a dividend existed thereafter, nor that the claim remained active against the estate. Accordingly, any postponement of prescription ceased on that date. The appellant did not prove when the principal debt became due or when it would have...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.