Masilo N.O and Others v Betterbridge (Pty) Limited (37/2015) [2016] ZASCA 73 (25 May 2016)

Masilo N.O and Others v Betterbridge (Pty) Limited (37/2015) [2016] ZASCA 73 (25 May 2016)

The Supreme Court of Appeal held that the delay in the completion of prescription under section 13(1)(g) of the Prescription Act operates as soon as the claim is admitted to proof at the meeting of creditors, as provided for in section 44 of the Insolvency Act. The court rejected the appellants' argument that withdrawal of the claim before completion of the adjudication process negates the delay in prescription. The court found that the claim was admitted to proof and thus the delay applied. The appeal was dismissed with costs.

Citation
[2016] ZASCA 73
Parties
Appellant: Michael Mmathomo Masilo NO; Appellant: Philippus Giovanni Torre NO; Appellant: Monica Cowin NO; Respondent: Betterbridge (Pty) Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
25 May 2016
Case Number
37/2015
Procedural Posture
Civil Appeal / Appeal From North Gauteng Division of the High Court, Pretoria
Outcome
Appeal dismissed with costs.
Judges
Cachalia, Seriti, Willis, Mbha, Victor
Legal Topics
Extinctive Prescription, Delay in Completion of Prescription, Insolvency Act Section 44, Prescription Act Section 13
Civil Procedure Extinctive Prescription Delay in Completion of Prescription Insolvency Act Section 44 Prescription Act Section 13

Case Brief

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Parties

Michael Mmathomo Masilo NO

Appellant

Philippus Giovanni Torre NO

Appellant

Monica Cowin NO

Appellant

Betterbridge (Pty) Limited

Respondent

Procedural Posture

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

Legal Issues

  1. 1 Whether the completion of prescription was delayed in terms of section 13(1)(g) of the Prescription Act 68 of 1969 when a claim is withdrawn after being admitted to proof under section 44 of the Insolvency Act 24 of 1936.
  2. 2 Whether a withdrawn claim can benefit from the delay in prescription provided for in section 13(1)(g) of the Prescription Act.

Ratio Decidendi

The Supreme Court of Appeal held that the delay in the completion of prescription under section 13(1)(g) of the Prescription Act operates as soon as the claim is admitted to proof at the meeting of creditors, as provided for in section 44 of the Insolvency Act. The court rejected the appellants' argument that withdrawal of the claim before completion of the adjudication process negates the delay in prescription. The court found that the claim was admitted to proof and thus the delay applied. The appeal was dismissed with costs.

Court Disposition

Appeal dismissed with costs.

Orders

  • The appeal is dismissed with costs.