Factaprops 1052 CC and Another v Land and Agricultural Development Bank of South Africa t/a Land Bank (353/2016) [2017] ZASCA 45; 2017 (4) SA 495 (SCA) (30 March 2017)

Factaprops 1052 CC and Another v Land and Agricultural Development Bank of South Africa t/a Land Bank (353/2016) [2017] ZASCA 45; 2017 (4) SA 495 (SCA) (30 March 2017)

The Supreme Court of Appeal held that the phrase 'mortgage bond' in section 11(a)(i) of the Prescription Act 68 of 1969 must be interpreted to include a special notarial bond. This conclusion is supported by the ordinary grammatical meaning of 'mortgage', the Afrikaans text of the Act, historical legislative usage, and the public record nature of notarial bonds. The distinction drawn in the Deeds Registries Act is relevant only for deeds attestation and registration, not for prescription purposes. Consequently, the applicable prescription period for a debt secured by a special notarial bond is thirty years. The court dismissed the appellants' special plea of prescription and upheld the...

Citation
[2017] ZASCA 45
Parties
Appellant: Factaprops 1052 CC; Appellant: Ismail Ebrahim Darsot; Respondent: Land and Agricultural Development Bank of South Africa t/a Land Bank
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 March 2017
Case Number
353/2016
Procedural Posture
Civil Appeal / Appeal From Gauteng Division, Pretoria; Special Plea of Prescription
Outcome
Appeal dismissed with costs on attorney and client scale.
Judges
Tshiqi, Zondi, Van der Merwe, Nicholls, Coppin
Legal Topics
Prescription Periods, Special Notarial Bond, Mortgage Bond Interpretation, Security by Means of Movable Property Act, Suretyship Liability
Banking and Finance Civil Procedure Prescription Periods Special Notarial Bond Mortgage Bond Interpretation Security by Means of Movable Property Act Suretyship Liability

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Parties

Factaprops 1052 CC

Appellant

Ismail Ebrahim Darsot

Appellant

Land and Agricultural Development Bank of South Africa t/a Land Bank

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division, Pretoria; Special Plea of Prescription

Legal Issues

  1. 1 Does the phrase 'mortgage bond' in section 11(a)(i) of the Prescription Act 68 of 1969 include a special notarial bond?
  2. 2 What is the applicable period of prescription for a debt secured by a special notarial bond: thirty, six, or three years?
  3. 3 Should the special plea of prescription raised by the appellants be upheld or dismissed?

Ratio Decidendi

The Supreme Court of Appeal held that the phrase 'mortgage bond' in section 11(a)(i) of the Prescription Act 68 of 1969 must be interpreted to include a special notarial bond. This conclusion is supported by the ordinary grammatical meaning of 'mortgage', the Afrikaans text of the Act, historical legislative usage, and the public record nature of notarial bonds. The distinction drawn in the Deeds Registries Act is relevant only for deeds attestation and registration, not for prescription purposes. Consequently, the applicable prescription period for a debt secured by a special notarial bond is thirty years. The court dismissed the appellants' special plea of prescription and upheld the...

Court Disposition

Appeal dismissed with costs on attorney and client scale.

Orders

  • The appeal is dismissed with costs on attorney and client scale.