Loots and Another v Lubbe (71481/2011) [2014] ZAGPPHC 1041 (20 November 2014)

Loots and Another v Lubbe (71481/2011) [2014] ZAGPPHC 1041 (20 November 2014)

The court held that the CM 100 form, although signed by Mr Ehrus Lubbe and submitted to the Master as part of the voluntary liquidation process, was not shown to have been communicated to Avello or its representative. There was no evidence that Avello became aware of the acknowledgment of liability contained in the CM 100. Section 14(1) of the Prescription Act requires that the acknowledgment be made to the creditor or its representative. The mere submission of the document to the Master does not satisfy this requirement, nor does the fact that the document could be accessed by interested parties. As the applicants failed to prove that prescription was interrupted, the claim against the...

Citation
[2014] ZAGPPHC 1041
Parties
Applicant: P H Loots; Applicant: C B Nel; Respondent: C Lubbe
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
20 November 2014
Case Number
71481/2011
Procedural Posture
Civil Judgment / Trial
Outcome
The applicants' claim is dismissed with costs, including the costs of two counsel.
Judges
J W Louw
Legal Topics
Prescription, Acknowledgment of Liability, Suretyship, Cession of Claims
Civil Procedure Prescription Acknowledgment of Liability Suretyship Cession of Claims

Case Brief

Summary, issues, holding and outcome

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Parties

P H Loots

Applicant

C B Nel

Applicant

C Lubbe

Respondent

Procedural Posture

Civil Judgment / Trial

Legal Issues

  1. 1 Whether the claim against the respondent based on the suretyship has prescribed.
  2. 2 Whether the CM 100 document constitutes an acknowledgment of liability as contemplated by section 14(1) of the Prescription Act 68 of 1969.
  3. 3 Whether the acknowledgment of liability was made to the creditor or its representative, thereby interrupting prescription.

Ratio Decidendi

The court held that the CM 100 form, although signed by Mr Ehrus Lubbe and submitted to the Master as part of the voluntary liquidation process, was not shown to have been communicated to Avello or its representative. There was no evidence that Avello became aware of the acknowledgment of liability contained in the CM 100. Section 14(1) of the Prescription Act requires that the acknowledgment be made to the creditor or its representative. The mere submission of the document to the Master does not satisfy this requirement, nor does the fact that the document could be accessed by interested parties. As the applicants failed to prove that prescription was interrupted, the claim against the...

Court Disposition

The applicants' claim is dismissed with costs, including the costs of two counsel.

Orders

  • The claim against the respondent is dismissed.
  • The applicants are ordered to pay the respondent's costs, including the costs of two counsel.