Isibaya Fund v Visser and Others (41924/06) [2013] ZAGPPHC 219 (17 July 2013)

Isibaya Fund v Visser and Others (41924/06) [2013] ZAGPPHC 219 (17 July 2013)

The court found that the plaintiff, represented on the board of the Carewell Group and actively involved in criminal and asset forfeiture proceedings, had knowledge of the facts giving rise to its claim against the defendants by March 2000. The Public Investment Corporation, and by extension the Isibaya Fund, is not...

Source-derived case information.

Citation
[2013] ZAGPPHC 219
Parties
Plaintiff: The Isibaya Fund; Defendant: E. J. Visser; Defendant: V. Coetzee; Defendant: T. B. Lehloeke
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
17 July 2013
Case Number
41924/06
Procedural Posture
Civil Trial / Special Plea of Prescription Decided Before Merits
Outcome
Special plea of prescription upheld with costs.
Judges
Preller
Legal Topics
Prescription Act, Personal Liability of Directors, Reckless Trading, Section 424 Companies Act, Locus Standi, Debt Due to State
Civil Procedure Commercial and Corporate Prescription Act Personal Liability of Directors Reckless Trading Section 424 Companies Act Locus Standi Debt Due to State

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Parties

The Isibaya Fund

Plaintiff

E. J. Visser

Defendant

V. Coetzee

Defendant

T. B. Lehloeke

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription Decided Before Merits

Legal Issues

  1. 1 Whether the plaintiff's claim against the defendants for personal liability under section 424 of the Companies Act has prescribed.
  2. 2 Whether the plaintiff is 'the State' for purposes of the Prescription Act and entitled to a longer prescription period.
  3. 3 Whether the plaintiff had the requisite knowledge of the facts giving rise to the claim before 8 January 2004.

Ratio Decidendi

The court found that the plaintiff, represented on the board of the Carewell Group and actively involved in criminal and asset forfeiture proceedings, had knowledge of the facts giving rise to its claim against the defendants by March 2000. The Public Investment Corporation, and by extension the Isibaya Fund, is not the State for purposes of the Prescription Act, and the applicable prescription period is three years. The claim for personal liability under section 424 of the Companies Act constitutes a 'debt' for prescription purposes, and prescription commenced when the plaintiff had sufficient knowledge to draft a non-excipiable claim. The plaintiff's claim was therefore extinguished by...

Court Disposition

Special plea of prescription upheld with costs.

Orders

  • The special plea of prescription is upheld.
  • Plaintiff's claim is dismissed.