Investec Ltd v ERF 436 Elandspoort (Pty)Ltd (2517/2011) [2016] ZAGPPHC 505 (25 May 2016)

Investec Ltd v ERF 436 Elandspoort (Pty)Ltd (2517/2011) [2016] ZAGPPHC 505 (25 May 2016)

The court found that the debt claimed by the plaintiff was not secured by a mortgage bond at the time prescription commenced to run, as the lease agreement and the mortgage bond had been cancelled prior to the debt becoming due. The plaintiff admitted that cancellation of the lease extinguished both the mortgagor's and mortgagee's real rights. The court held that section 11(a) of the Prescription Act applies only to debts secured by mortgage bond at the time the debt is due. Since the bond had terminated, the debt was not secured and the three-year prescription period under section 11(d) applied. The court rejected the plaintiff's argument that registration of the bond interrupted...

Citation
[2016] ZAGPPHC 505
Parties
Plaintiff: Investec Bank Ltd; Defendant: ERF 436 Elandspoort (Pty) Ltd; Defendant: Cecilia Joubert NO; Defendant: ERF 1081 Arcadia (Pty) Ltd; Defendant: V and J Properties (Pty) Ltd; Defendant: Remaining Extent 764 Brooklyn (Pty) Ltd; Defendant: ERF 22 Hillcrest (Pty) Ltd
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
25 May 2016
Case Number
2517/2011
Procedural Posture
Civil Trial / Determination of Special Plea of Prescription
Outcome
Plaintiff's claim is dismissed on the basis that the debt prescribed after three years.
Judges
Molopa-Sethosa
Legal Topics
Prescription Act, Mortgage Bond Prescription, Special Plea, Debt Due, Acknowledgement of Liability
Civil Procedure Prescription Act Mortgage Bond Prescription Special Plea Debt Due Acknowledgement of Liability

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 7 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

Investec Bank Ltd

Plaintiff

ERF 436 Elandspoort (Pty) Ltd

Defendant

Cecilia Joubert NO

Defendant

ERF 1081 Arcadia (Pty) Ltd

Defendant

V and J Properties (Pty) Ltd

Defendant

Remaining Extent 764 Brooklyn (Pty) Ltd

Defendant

ERF 22 Hillcrest (Pty) Ltd

Defendant

Procedural Posture

Civil Trial / Determination of Special Plea of Prescription

Legal Issues

  1. 1 Whether the debt claimed by the plaintiff is subject to a three-year or thirty-year prescription period under the Prescription Act.
  2. 2 Whether the debt was secured by a mortgage bond at the time prescription commenced to run.
  3. 3 Whether the registration or cancellation of the mortgage bond interrupted or affected the running of prescription.

Ratio Decidendi

The court found that the debt claimed by the plaintiff was not secured by a mortgage bond at the time prescription commenced to run, as the lease agreement and the mortgage bond had been cancelled prior to the debt becoming due. The plaintiff admitted that cancellation of the lease extinguished both the mortgagor's and mortgagee's real rights. The court held that section 11(a) of the Prescription Act applies only to debts secured by mortgage bond at the time the debt is due. Since the bond had terminated, the debt was not secured and the three-year prescription period under section 11(d) applied. The court rejected the plaintiff's argument that registration of the bond interrupted...

Court Disposition

Plaintiff's claim is dismissed on the basis that the debt prescribed after three years.

Orders

  • It is declared that the period of prescription of the debt claimed by the plaintiff was three years.
  • The plaintiff is ordered to pay the costs pertaining to the hearing of the question of law, including the cost of the application for separation.