Betterbridge (Pty) Ltd v Masilo and Others (54727/2011) [2014] ZAGPPHC 813; 2015 (2) SA 396 (GP) (17 October 2014)

Betterbridge (Pty) Ltd v Masilo and Others (54727/2011) [2014] ZAGPPHC 813; 2015 (2) SA 396 (GP) (17 October 2014)

The court held that the correct interpretation of 'filing' under Section 13(1)(g) of the Prescription Act, as bindingly set out in Thrupp Investment Holdings, is that a claim is filed when it is admitted for purposes of proof at a meeting of creditors, in accordance with Section 44(4) of the Insolvency Act. This does not require substantive approval or final acceptance of the claim, but rather compliance with procedural requirements allowing the claim to be considered at the meeting. On the facts, the Plaintiff's claim was admitted for purposes of proof and thus was 'filed' before prescription completed. The special plea of prescription therefore fails.

Citation
[2014] ZAGPPHC 813
Parties
Plaintiff: Betterbridge (Pty) Ltd; Defendant: Masilo, Michael Mmathomo N.O.; Defendant: Torre, Philippus Giovanni N.O.; Defendant: Cowin, Monica N.O.
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 October 2014
Case Number
54727/2011
Procedural Posture
Civil Trial / Separated Hearing on Special Plea of Prescription
Outcome
The Defendants' special plea of prescription is dismissed.
Judges
D N Unterhalter
Legal Topics
Prescription Act, Filing of Claim, Liquidation Procedure, Special Plea, Creditor Claims
Civil Procedure Prescription Act Filing of Claim Liquidation Procedure Special Plea Creditor Claims

Case Brief

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Parties

Betterbridge (Pty) Ltd

Plaintiff

Masilo, Michael Mmathomo N.O.

Defendant

Torre, Philippus Giovanni N.O.

Defendant

Cowin, Monica N.O.

Defendant

Procedural Posture

Civil Trial / Separated Hearing on Special Plea of Prescription

Legal Issues

  1. 1 Whether the filing of a claim against a company in liquidation delays prescription under Section 13(1)(g) of the Prescription Act.
  2. 2 What constitutes 'filing' of a claim for purposes of prescription: lodgement, admission to proof, or approval by the presiding officer.
  3. 3 Whether the Plaintiff's claim was filed in accordance with the statutory requirements before prescription completed.

Ratio Decidendi

The court held that the correct interpretation of 'filing' under Section 13(1)(g) of the Prescription Act, as bindingly set out in Thrupp Investment Holdings, is that a claim is filed when it is admitted for purposes of proof at a meeting of creditors, in accordance with Section 44(4) of the Insolvency Act. This does not require substantive approval or final acceptance of the claim, but rather compliance with procedural requirements allowing the claim to be considered at the meeting. On the facts, the Plaintiff's claim was admitted for purposes of proof and thus was 'filed' before prescription completed. The special plea of prescription therefore fails.

Court Disposition

The Defendants' special plea of prescription is dismissed.

Orders

  • The Defendants' special plea is dismissed.
  • The Defendants are ordered to pay the costs of the separated action.