Bester and Others NNO v Gouws and Others (851/2019) [2020] ZASCA 174 (17 December 2020)

Bester and Others NNO v Gouws and Others (851/2019) [2020] ZASCA 174 (17 December 2020)

The Supreme Court of Appeal held that the trustees of the RVAF Trust either had, or could reasonably have acquired, the requisite knowledge to institute claims against the brokers by 23 October 2012. The relevant facts, including the existence and identity of the brokers and the commissions paid, were readily available in the broker files and could have been accessed through reasonable care. The trustees' decision to prioritise other matters did not justify postponing the running of prescription, as a creditor cannot delay prescription through their own conduct. The court found no material misdirection in the factual findings of the court a quo and concluded that the claims had...

Citation
[2020] ZASCA 174
Parties
Appellant: Lambertus Von Wielligh Bester NO; Appellant: Rynette Pieters NO; Appellant: Barend Peterson NO; Respondent: Anton Gouws; Respondent: Schalk W J Steenkamp; Respondent: Johan Joubert; Respondent: Swartland Makelaars CC; Respondent: Mark Eiserman; Respondent: Mark Alexander Investments CC; Respondent: Jannie Augustyn; Respondent: Andrea Fredericka Moolman; Respondent: Vaidro 172 CC; Respondent: Hendrik Janse Van Vuuren; Respondent: Hendrik Van Vuuren Makelaars CC
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
17 December 2020
Case Number
851/2019
Procedural Posture
Civil Appeal / Appeal From Western Cape Division of the High Court, Cape Town
Outcome
Appeal dismissed with costs, including costs for two counsel, but costs for preparation, perusal, and copying of the record limited to 60% of incurred costs.
Judges
Ponnan, Wallis, Zondi, Dlodlo, Weiner
Legal Topics
Prescription Act, Trustee Liability, Unjust Enrichment, Ponzi Scheme, Impeachable Transaction
Civil Procedure Banking and Finance Prescription Act Trustee Liability Unjust Enrichment Ponzi Scheme Impeachable Transaction

Case Brief

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Parties

Lambertus Von Wielligh Bester NO

Appellant

Rynette Pieters NO

Appellant

Barend Peterson NO

Appellant

Anton Gouws

Respondent

Schalk W J Steenkamp

Respondent

Johan Joubert

Respondent

Swartland Makelaars CC

Respondent

Mark Eiserman

Respondent

Mark Alexander Investments CC

Respondent

Jannie Augustyn

Respondent

Andrea Fredericka Moolman

Respondent

Vaidro 172 CC

Respondent

Hendrik Janse Van Vuuren

Respondent

Hendrik Van Vuuren Makelaars CC

Respondent

Procedural Posture

Civil Appeal / Appeal From Western Cape Division of the High Court, Cape Town

Legal Issues

  1. 1 Whether the trustees of the insolvent RVAF Trust had, or should have had, the requisite knowledge under section 12(3) of the Prescription Act to institute claims against the brokers by 23 October 2012.
  2. 2 Whether the claims based on payments made before 1 August 2009 had prescribed under the Prescription Act.
  3. 3 Whether the prioritisation of other matters by trustees can postpone the running of prescription.

Ratio Decidendi

The Supreme Court of Appeal held that the trustees of the RVAF Trust either had, or could reasonably have acquired, the requisite knowledge to institute claims against the brokers by 23 October 2012. The relevant facts, including the existence and identity of the brokers and the commissions paid, were readily available in the broker files and could have been accessed through reasonable care. The trustees' decision to prioritise other matters did not justify postponing the running of prescription, as a creditor cannot delay prescription through their own conduct. The court found no material misdirection in the factual findings of the court a quo and concluded that the claims had...

Court Disposition

Appeal dismissed with costs, including costs for two counsel, but costs for preparation, perusal, and copying of the record limited to 60% of incurred costs.

Orders

  • The appeal is dismissed with costs, including the costs occasioned by the employment of two counsel.
  • The costs of the preparation, perusal and copying of the record shall be limited to 60% of the costs incurred in those tasks.