Nedcor Bank Beperk v Rundle (3618/2001) [2005] ZAFSHC 2 (17 February 2005)

Nedcor Bank Beperk v Rundle (3618/2001) [2005] ZAFSHC 2 (17 February 2005)

The court found that the plaintiff bore the burden of proving that the debt remained the subject of a claim against the insolvent estate after the confirmation of the first liquidation and distribution account. The evidence showed that after the first account was confirmed and dividends paid, there were no realistic prospects of further payment to concurrent creditors, including the plaintiff. The plaintiff's own witness agreed that no further dividend was likely. The court held that the impediment under section 13(1)(g) of the Prescription Act ceased to exist on 8 August 2000, when the first account was confirmed. Consequently, prescription commenced running from that date and expired...

Citation
[2005] ZAFSHC 2
Parties
Plaintiff: Nedcor Bank Beperk; Defendant: Richard Arthur Rundle
Court
Free State High Court, Bloemfontein
Jurisdiction
South Africa
Judgment Date
17 February 2005
Case Number
3618/2001
Procedural Posture
Civil Trial / Absolution From the Instance After Plaintiff's Case
Outcome
Application for absolution from the instance granted; defendant discharged from the instance with costs.
Judges
H. A. L. Schreuder
Legal Topics
Suretyship, Prescription Act, Liquidation and Distribution Account, Burden of Proof
Banking and Finance Civil Procedure Suretyship Prescription Act Liquidation and Distribution Account Burden of Proof

Case Brief

Summary, issues, holding and outcome

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Parties

Nedcor Bank Beperk

Plaintiff

Richard Arthur Rundle

Defendant

Procedural Posture

Civil Trial / Absolution From the Instance After Plaintiff's Case

Legal Issues

  1. 1 Whether the plaintiff's claim against the defendant as surety and co-principal debtor has prescribed.
  2. 2 Whether the running of prescription was validly interrupted or postponed under section 13(1)(g) of the Prescription Act.
  3. 3 Whether the plaintiff discharged the burden of proving that the debt remained the subject of a claim against the insolvent estate after the first liquidation and distribution account.

Ratio Decidendi

The court found that the plaintiff bore the burden of proving that the debt remained the subject of a claim against the insolvent estate after the confirmation of the first liquidation and distribution account. The evidence showed that after the first account was confirmed and dividends paid, there were no realistic prospects of further payment to concurrent creditors, including the plaintiff. The plaintiff's own witness agreed that no further dividend was likely. The court held that the impediment under section 13(1)(g) of the Prescription Act ceased to exist on 8 August 2000, when the first account was confirmed. Consequently, prescription commenced running from that date and expired...

Court Disposition

Application for absolution from the instance granted; defendant discharged from the instance with costs.

Orders

  • The defendant is absolved from the instance.
  • The plaintiff is ordered to pay the costs of suit, including the costs of counsel.