Absa Bank v de Klerk (4203/2005) [2007] ZAFSHC 20 (1 March 2007)

Absa Bank v de Klerk (4203/2005) [2007] ZAFSHC 20 (1 March 2007)

The court found that the defendant's liability was accessory to the obligations of Septimus de Klerk Boerdery (Edms) Bpk, for which she had bound herself as surety. The mortgage bond did not create a separate and independent cause of action but merely secured her obligations as surety. The evidence showed that the funds were lent to the company, not to the defendant personally. The claim against the principal debtor had prescribed, and consequently, the accessory claim against the surety had also prescribed. The thirty-year prescription period under section 11(a) of the Prescription Act did not apply, as there was no direct and independent acknowledgment of liability by the defendant in...

Citation
[2007] ZAFSHC 20
Parties
Plaintiff: Absa Bank; Defendant: J S E de Klerk
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
1 March 2007
Case Number
4203/2005
Procedural Posture
Civil Trial / Special Plea of Prescription
Outcome
Special plea of prescription upheld; plaintiff's claim dismissed with costs.
Judges
Kruger R
Legal Topics
Extinctive Prescription, Suretyship, Mortgage Bond, Verjaringswet 68 of 1969
Civil Procedure Banking and Finance Extinctive Prescription Suretyship Mortgage Bond Verjaringswet 68 of 1969

Case Brief

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Parties

Absa Bank

Plaintiff

J S E de Klerk

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription

Legal Issues

  1. 1 Whether the plaintiff's claim against the defendant is subject to a three-year or thirty-year prescription period under the Prescription Act.
  2. 2 Whether the mortgage bond constitutes a separate and independent cause of action from the suretyship.
  3. 3 Whether the defendant's liability is direct or accessory to the principal debtor's obligations.

Ratio Decidendi

The court found that the defendant's liability was accessory to the obligations of Septimus de Klerk Boerdery (Edms) Bpk, for which she had bound herself as surety. The mortgage bond did not create a separate and independent cause of action but merely secured her obligations as surety. The evidence showed that the funds were lent to the company, not to the defendant personally. The claim against the principal debtor had prescribed, and consequently, the accessory claim against the surety had also prescribed. The thirty-year prescription period under section 11(a) of the Prescription Act did not apply, as there was no direct and independent acknowledgment of liability by the defendant in...

Court Disposition

Special plea of prescription upheld; plaintiff's claim dismissed with costs.

Orders

  • The special plea of prescription is upheld.
  • The plaintiff's claim is dismissed with costs.