ABSA Bank Ltd v BCF Micro Finance 1(Pty) Ltd and Others (3522/2019) [2022] ZAFSHC 249 (23 September 2022)

ABSA Bank Ltd v BCF Micro Finance 1(Pty) Ltd and Others (3522/2019) [2022] ZAFSHC 249 (23 September 2022)

The court found that the defendants failed to discharge the onus of proving prescription, as the claims were lodged in the insolvent estate before prescription could run and the final account has not been confirmed. The evidence presented by the plaintiff, including certificates of balance and expert recalculations, was uncontested and established the amounts owed. The defendants' argument that payment from the sale of immovable property extinguished the mortgage bond debt was rejected, as the plaintiff was entitled to allocate payments to various accounts and the mortgage bond was a continuing surety for all debts. The defendants did not provide credible evidence to dispute the...

Citation
[2022] ZAFSHC 249
Parties
Plaintiff: ABSA Bank Ltd; Defendant: BCF Micro Finance 1 (Pty) Ltd; Defendant: BCF Micro Finance 7 (Pty) Ltd; Defendant: BCF Micro Finance 4 (Pty) Ltd; Defendant: BCF Micro Finance 2 (Pty) Ltd; Defendant: BCF Micro Finance 5 (Pty) Ltd; Defendant: BCF Micro Finance 8 (Pty) Ltd; Defendant: Thea Van Vuuren; Defendant: Marthinus Johannes Els; Defendant: Paul Hendrik Zietsman; Defendant: Marthinus Johannes Els N.O.; Defendant: Janetha Elizabeth Els N.O.; Defendant: Geraldine Chrissie Potgieter N.O.; Defendant: Paul Hendrik Zietsman N.O.; Defendant: Charles George Friedrich Krohn N.O.
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
23 September 2022
Case Number
3522/2019
Procedural Posture
Civil Trial / Final Judgment
Outcome
Plaintiff's claims succeed. Defendants are ordered to pay the amounts claimed, with interest and costs.
Judges
Mathebula
Legal Topics
Suretyship, Mortgage Bond, Prescription, Liquidation, Certificate of Balance
Banking and Finance Civil Procedure Suretyship Mortgage Bond Prescription Liquidation Certificate of Balance

Case Brief

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Parties

ABSA Bank Ltd

Plaintiff

BCF Micro Finance 1 (Pty) Ltd

Defendant

BCF Micro Finance 7 (Pty) Ltd

Defendant

BCF Micro Finance 4 (Pty) Ltd

Defendant

BCF Micro Finance 2 (Pty) Ltd

Defendant

BCF Micro Finance 5 (Pty) Ltd

Defendant

BCF Micro Finance 8 (Pty) Ltd

Defendant

Thea Van Vuuren

Defendant

Marthinus Johannes Els

Defendant

Paul Hendrik Zietsman

Defendant

Marthinus Johannes Els N.O.

Defendant

Janetha Elizabeth Els N.O.

Defendant

Geraldine Chrissie Potgieter N.O.

Defendant

Paul Hendrik Zietsman N.O.

Defendant

Charles George Friedrich Krohn N.O.

Defendant

Procedural Posture

Civil Trial / Final Judgment

Legal Issues

  1. 1 Whether the defendants are liable as sureties for the debts of the principal debtor under the deed of suretyship and mortgage bond.
  2. 2 Whether the claims against the defendants have prescribed.
  3. 3 Whether the amounts claimed by the plaintiff are correct and outstanding.

Ratio Decidendi

The court found that the defendants failed to discharge the onus of proving prescription, as the claims were lodged in the insolvent estate before prescription could run and the final account has not been confirmed. The evidence presented by the plaintiff, including certificates of balance and expert recalculations, was uncontested and established the amounts owed. The defendants' argument that payment from the sale of immovable property extinguished the mortgage bond debt was rejected, as the plaintiff was entitled to allocate payments to various accounts and the mortgage bond was a continuing surety for all debts. The defendants did not provide credible evidence to dispute the...

Court Disposition

Plaintiff's claims succeed. Defendants are ordered to pay the amounts claimed, with interest and costs.

Orders

  • Claim 1: First to sixth, eighth, and tenth to seventeenth defendants must pay the plaintiff R13,863,565.03 jointly and severally, with interest at 10.25% capitalized monthly from 2 April 2019 to date of final payment.
  • Claim 1: Seventh and ninth defendants must pay the plaintiff R1,584,000.00 jointly and severally, with interest at 10.25% capitalized monthly from 2 April 2019 to date of final payment.