Eley (formerly Memmel) v Lynn & Main INC (614/2006) [2007] ZASCA 142; [2007] SCA 142 (RSA); [2008] 1 All SA 315 (SCA); 2008 (2) SA 151 (SCA) (22 November 2007)

Eley (formerly Memmel) v Lynn & Main INC (614/2006) [2007] ZASCA 142; [2007] SCA 142 (RSA); [2008] 1 All SA 315 (SCA); 2008 (2) SA 151 (SCA) (22 November 2007)

The Supreme Court of Appeal held that the claim against the appellant as surety and co-principal debtor prescribes after thirty years, not three, when judgment has been obtained against the principal debtor. The accessory obligation of the surety is tied to the principal debt, and prescription runs in accordance with the principal judgment debt. The court rejected the appellant's reliance on Rand Bank Limited v De Jager, which was overruled by Jans v Nedcor Bank Ltd. The cession of the claim was valid and covered both the book debt and any judgment obtained in respect thereof, including all security provided to Nedbank. The appellant's arguments on prescription and cession failed, and the...

Citation
[2007] ZASCA 142
Parties
Appellant: Karen Harriet Eley (formerly Memmel); Respondent: Lynn & Main INC
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
22 November 2007
Case Number
614/2006
Procedural Posture
Civil Appeal / Appeal Against Dismissal of Rescission Application
Outcome
Appeal dismissed with costs.
Judges
Mthiyane, Lewis, Ponnan, Hurt, Kgomo
Legal Topics
Prescription Act, Suretyship, Judgment Debt, Cession of Claims
Civil Procedure Banking and Finance Prescription Act Suretyship Judgment Debt Cession of Claims

Case Brief

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Parties

Karen Harriet Eley (formerly Memmel)

Appellant

Lynn & Main INC

Respondent

Procedural Posture

Civil Appeal / Appeal Against Dismissal of Rescission Application

Legal Issues

  1. 1 Does a claim against a surety in respect of a debt confirmed by judgment against the principal debtor prescribe after three years or thirty years under the Prescription Act?
  2. 2 Was the cession of the claim against the surety valid and properly pleaded?

Ratio Decidendi

The Supreme Court of Appeal held that the claim against the appellant as surety and co-principal debtor prescribes after thirty years, not three, when judgment has been obtained against the principal debtor. The accessory obligation of the surety is tied to the principal debt, and prescription runs in accordance with the principal judgment debt. The court rejected the appellant's reliance on Rand Bank Limited v De Jager, which was overruled by Jans v Nedcor Bank Ltd. The cession of the claim was valid and covered both the book debt and any judgment obtained in respect thereof, including all security provided to Nedbank. The appellant's arguments on prescription and cession failed, and the...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.