Botha v Standard Bank of South Africa Ltd (445/2018) [2019] ZASCA 108; 2019 (6) SA 388 (SCA) (6 September 2019)

Botha v Standard Bank of South Africa Ltd (445/2018) [2019] ZASCA 108; 2019 (6) SA 388 (SCA) (6 September 2019)

The Supreme Court of Appeal held that the cancellation of the mortgage bonds after the debt became due did not alter the prescription period applicable to the debt. The prescription period is determined at the moment the debt becomes due, and the debt remains classified as one secured by a mortgage bond under s 11(a)(i) of the Prescription Act, attracting a 30-year prescription period. The court rejected the appellant's reliance on Investec Bank v Erf 436 Elandspoort, clarifying that Investec only applies where the security is cancelled before the debt becomes due. The court found that the debt in question was due and secured by a mortgage bond at the relevant time, and subsequent...

Citation
[2019] ZASCA 108
Parties
Appellant: Antoinette Botha; Respondent: Standard Bank of South Africa Ltd
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
6 September 2019
Case Number
445/2018
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria
Outcome
Appeal dismissed with costs, including costs occasioned by the employment of two counsel.
Judges
Cachalia, Saldulker, Plasket, Dlodlo, Weiner
Legal Topics
Prescription Act, Mortgage Bond Debt, Suretyship Liability, Debt Classification
Banking and Finance Civil Procedure Prescription Act Mortgage Bond Debt Suretyship Liability Debt Classification

Case Brief

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Parties

Antoinette Botha

Appellant

Standard Bank of South Africa Ltd

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 Does cancellation of a mortgage bond after the debt is due and prescription has begun to run change the prescription period from 30 years to three years?
  2. 2 Is the debt owed by the surety subject to the 30-year prescription period under s 11(a)(i) of the Prescription Act or the three-year period under s 11(d)?

Ratio Decidendi

The Supreme Court of Appeal held that the cancellation of the mortgage bonds after the debt became due did not alter the prescription period applicable to the debt. The prescription period is determined at the moment the debt becomes due, and the debt remains classified as one secured by a mortgage bond under s 11(a)(i) of the Prescription Act, attracting a 30-year prescription period. The court rejected the appellant's reliance on Investec Bank v Erf 436 Elandspoort, clarifying that Investec only applies where the security is cancelled before the debt becomes due. The court found that the debt in question was due and secured by a mortgage bond at the relevant time, and subsequent...

Court Disposition

Appeal dismissed with costs, including costs occasioned by the employment of two counsel.

Orders

  • The appeal is dismissed with costs including the costs occasioned by the employment of two counsel.