Jans v Nedcor Bank Ltd (86/02) [2003] ZASCA 15; [2003] 2 All SA 11 (SCA); 2003 (6) SA 646 (SCA) (24 March 2003)

Jans v Nedcor Bank Ltd (86/02) [2003] ZASCA 15; [2003] 2 All SA 11 (SCA); 2003 (6) SA 646 (SCA) (24 March 2003)

The Supreme Court of Appeal held that under South African law, interruption or delay in the running of prescription in favour of the principal debtor interrupts or delays the running of prescription in favour of a surety. The accessory nature of suretyship, as well as the commonality of the underlying debt, means that the fortunes of the surety's obligation follow those of the principal debtor as far as prescription is concerned. The Court found that the contrary view, as adopted in Rand Bank Ltd v De Jager, was incorrect and that the historical and comparative authorities, including Voet and Pothier, supported the extension of interruption of prescription to sureties. The Court also...

Citation
[2003] ZASCA 15
Parties
Appellant: Shirley Joyce Jans; Respondent: Nedcor Bank Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
24 March 2003
Case Number
86/02
Procedural Posture
Civil Appeal / Appeal From the Witwatersrand Local Division, Against Refusal to Rescind Default Judgment
Outcome
Appeal dismissed with costs.
Judges
Vivier, Scott, Farlam, Mthiyane, Lewis
Legal Topics
Prescription Act, Suretyship, Accessory Liability, Interruption of Prescription, Liquidation Claims
Banking and Finance Civil Procedure Prescription Act Suretyship Accessory Liability Interruption of Prescription Liquidation Claims

Case Brief

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Parties

Shirley Joyce Jans

Appellant

Nedcor Bank Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From the Witwatersrand Local Division, Against Refusal to Rescind Default Judgment

Legal Issues

  1. 1 Does interruption or delay in the running of prescription in favour of the principal debtor interrupt or delay the running of prescription in favour of a surety?
  2. 2 Should prescription against a surety run independently from prescription against the principal debtor under South African law?

Ratio Decidendi

The Supreme Court of Appeal held that under South African law, interruption or delay in the running of prescription in favour of the principal debtor interrupts or delays the running of prescription in favour of a surety. The accessory nature of suretyship, as well as the commonality of the underlying debt, means that the fortunes of the surety's obligation follow those of the principal debtor as far as prescription is concerned. The Court found that the contrary view, as adopted in Rand Bank Ltd v De Jager, was incorrect and that the historical and comparative authorities, including Voet and Pothier, supported the extension of interruption of prescription to sureties. The Court also...

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.