Isibiya Fund v Visser & Another (20278/14) [2015] ZASCA 183 (27 November 2015)

Isibiya Fund v Visser & Another (20278/14) [2015] ZASCA 183 (27 November 2015)

The court held that the Isibaya Fund, although governed by the Public Investment Corporation Act and controlled by a board appointed by the Minister of Finance, is a separate juristic person acting in its own name and right. It is distinct from, though not entirely independent of, government and falls outside the public service. Therefore, it does not qualify as the 'State' for the purposes of section 11(b) of the Prescription Act. The three-year prescription period in section 11(d) applies to the Fund's claim. The Fund's arguments regarding delayed knowledge and interruption of prescription were abandoned. The respondents' special plea of prescription was correctly upheld by the court a...

Citation
[2015] ZASCA 183
Parties
Appellant: The Isibaya Fund; Respondent: Ernustus Jacobus Visser; Respondent: Vaughn Coetzee
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
27 November 2015
Case Number
20278/14
Procedural Posture
Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria
Outcome
Appeal dismissed with costs.
Judges
Shongwe, Tshiqi, Majiedt, Willis, Swain
Legal Topics
Prescription Act, Fiduciary Duty, Reckless Trading, Companies Act Section 424
Civil Procedure Commercial and Corporate Prescription Act Fiduciary Duty Reckless Trading Companies Act Section 424

Case Brief

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Parties

The Isibaya Fund

Appellant

Ernustus Jacobus Visser

Respondent

Vaughn Coetzee

Respondent

Procedural Posture

Civil Appeal / Appeal From Gauteng Division of the High Court, Pretoria

Legal Issues

  1. 1 Whether the appellant qualifies as the 'State' under section 11(b) of the Prescription Act for purposes of a fifteen-year prescription period.
  2. 2 Whether the respondents' special plea of prescription under section 11(d) of the Prescription Act should be upheld.
  3. 3 Whether the Fund's claim under section 424 of the Companies Act has prescribed.

Ratio Decidendi

The court held that the Isibaya Fund, although governed by the Public Investment Corporation Act and controlled by a board appointed by the Minister of Finance, is a separate juristic person acting in its own name and right. It is distinct from, though not entirely independent of, government and falls outside the public service. Therefore, it does not qualify as the 'State' for the purposes of section 11(b) of the Prescription Act. The three-year prescription period in section 11(d) applies to the Fund's claim. The Fund's arguments regarding delayed knowledge and interruption of prescription were abandoned. The respondents' special plea of prescription was correctly upheld by the court a...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.