Eley v Lynn & Main Inc (22615/05) [2006] ZAGPHC 94 (18 October 2006)

Eley v Lynn & Main Inc (22615/05) [2006] ZAGPHC 94 (18 October 2006)

The court held that, following the reasoning in Jans v Nedcor Bank Ltd, the interruption or delay in prescription applicable to the principal debtor also applies to the surety. Therefore, the thirty-year prescription period for judgment debts under section 11(a)(ii) of the Prescription Act governs the claim against the applicant as surety. The dicta in Bulsara v Jordan & Co (Conshu Ltd) were either obiter or, if not, the more recent and authoritative decision in Jans must be followed. As a result, the respondent's claim against the applicant had not prescribed, and the application for rescission was dismissed.

Citation
[2006] ZAGPHC 94
Parties
Applicant: Karen Harriet Eley (formerly Memmel); Respondent: Lynn & Main Inc
Court
High Courts - Gauteng
Jurisdiction
South Africa
Judgment Date
18 October 2006
Case Number
22615/05
Procedural Posture
Rescission Application / Final Determination of Prescription Defence
Outcome
Application for rescission dismissed with costs.
Judges
E L Goldstein
Legal Topics
Prescription Act, Suretyship, Judgment Debt, Accessory Obligation
Civil Procedure Commercial and Corporate Prescription Act Suretyship Judgment Debt Accessory Obligation

Case Brief

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Parties

Karen Harriet Eley (formerly Memmel)

Applicant

Lynn & Main Inc

Respondent

Procedural Posture

Rescission Application / Final Determination of Prescription Defence

Legal Issues

  1. 1 Whether the respondent's claim against the applicant as surety had prescribed by the time action was instituted.
  2. 2 Whether the period of prescription applicable to the surety is thirty years or three years after judgment against the principal debtor.
  3. 3 Whether the dicta in Bulsara v Jordan & Co (Conshu Ltd) or Jans v Nedcor Bank Ltd should be followed.

Ratio Decidendi

The court held that, following the reasoning in Jans v Nedcor Bank Ltd, the interruption or delay in prescription applicable to the principal debtor also applies to the surety. Therefore, the thirty-year prescription period for judgment debts under section 11(a)(ii) of the Prescription Act governs the claim against the applicant as surety. The dicta in Bulsara v Jordan & Co (Conshu Ltd) were either obiter or, if not, the more recent and authoritative decision in Jans must be followed. As a result, the respondent's claim against the applicant had not prescribed, and the application for rescission was dismissed.

Court Disposition

Application for rescission dismissed with costs.

Orders

  • The application is dismissed with costs.