De Jager en Andere v ABSA Bank Bpk (303/98) [2000] ZASCA 193; [2000] 4 All SA 481 (A); 2001 (3) SA 537 (SCA) (29 September 2000)

De Jager en Andere v ABSA Bank Bpk (303/98) [2000] ZASCA 193; [2000] 4 All SA 481 (A); 2001 (3) SA 537 (SCA) (29 September 2000)

The Supreme Court of Appeal held that an undertaking by a debtor or surety not to raise prescription after the debt has already been extinguished by prescription is legally valid and does not contravene public policy or the public interest. The Prescription Act allows a debtor, after prescription has run, to pay the debt or refrain from raising prescription as a defence. The undertaking merely formalizes what the debtor is already permitted to do. The fact that the undertaking is irrevocable and unlimited in duration does not render it void, as the interests of legal certainty have already been served by the running of prescription, and the parties are free to regulate their own affairs....

Citation
[2000] ZASCA 193
Parties
Appellant: A J de Jager; Appellant: P J de Jager; Appellant: M G de Jager; Appellant: Awie de Jager (Edms) Beperk; Respondent: ABSA Bank Beperk
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
29 September 2000
Case Number
303/98
Procedural Posture
Civil Appeal / Appeal From the Transvaal Provincial Division
Outcome
Appeal dismissed with costs, including the costs of two counsel.
Judges
Smalberger, Harms, Olivier, Scott, Melunsky
Legal Topics
Prescription Act, Suretyship, Public Policy, Contractual Freedom
Civil Procedure Commercial and Corporate Prescription Act Suretyship Public Policy Contractual Freedom

Case Brief

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Parties

A J de Jager

Appellant

P J de Jager

Appellant

M G de Jager

Appellant

Awie de Jager (Edms) Beperk

Appellant

ABSA Bank Beperk

Respondent

Procedural Posture

Civil Appeal / Appeal From the Transvaal Provincial Division

Legal Issues

  1. 1 Is a debtor's undertaking not to raise prescription after the underlying debt has been extinguished by prescription legally valid?.
  2. 2 Does such an undertaking contravene public policy or the public interest?.
  3. 3 Can a surety's liability be revived by an undertaking given after prescription has extinguished the principal debt?.

Ratio Decidendi

The Supreme Court of Appeal held that an undertaking by a debtor or surety not to raise prescription after the debt has already been extinguished by prescription is legally valid and does not contravene public policy or the public interest. The Prescription Act allows a debtor, after prescription has run, to pay the debt or refrain from raising prescription as a defence. The undertaking merely formalizes what the debtor is already permitted to do. The fact that the undertaking is irrevocable and unlimited in duration does not render it void, as the interests of legal certainty have already been served by the running of prescription, and the parties are free to regulate their own affairs....

Court Disposition

Appeal dismissed with costs, including the costs of two counsel.

Orders

  • The appeal is dismissed with costs, including the costs of two counsel.