Nedcor Bank Ltd. v Rundle (455/05) [2006] ZASCA 160; 2008 (1) SA 415 (SCA) ; [2007] 4 All SA 1120 (SCA) (26 September 2006)

Nedcor Bank Ltd. v Rundle (455/05) [2006] ZASCA 160; 2008 (1) SA 415 (SCA) ; [2007] 4 All SA 1120 (SCA) (26 September 2006)

The Supreme Court of Appeal held that the impediment to prescription under section 13(1)(g) of the Prescription Act only ceases to exist upon confirmation of the final liquidation and distribution account by the Master. The use of 'first and final' to describe an account is misleading if further accounts are contemplated. The trial court erred in finding that the lack of realistic prospect of further dividend could end the impediment. The correct interpretation is that only confirmation of the final account brings the impediment to an end, ensuring legal certainty and avoiding subjective measures. As the final account was confirmed after service of summons, the special plea of...

Citation
[2006] ZASCA 160
Parties
Appellant: Nedcor Bank Limited; Respondent: R A Rundle
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
26 September 2006
Case Number
455/05
Procedural Posture
Civil Appeal / Appeal From Order of Absolution From the Instance After Special Plea of Prescription Was Upheld in the Trial Court.
Outcome
Appeal upheld; order of absolution from the instance set aside; special plea of prescription dismissed; matter referred back to proceed on the merits.
Judges
Harms, Ponnan, Combrinck, Malan, Cachalia
Legal Topics
Prescription Act, Interruption of Prescription, Liquidation and Distribution Accounts
Civil Procedure Prescription Act Interruption of Prescription Liquidation and Distribution Accounts

Case Brief

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Parties

Nedcor Bank Limited

Appellant

R A Rundle

Respondent

Procedural Posture

Civil Appeal / Appeal From Order of Absolution From the Instance After Special Plea of Prescription Was Upheld in the Trial Court.

Legal Issues

  1. 1 When does the impediment in section 13(1)(g) of the Prescription Act cease to exist for a claim filed against a company in liquidation?
  2. 2 Does confirmation of an interim liquidation and distribution account end the impediment, or only confirmation of the final account?

Ratio Decidendi

The Supreme Court of Appeal held that the impediment to prescription under section 13(1)(g) of the Prescription Act only ceases to exist upon confirmation of the final liquidation and distribution account by the Master. The use of 'first and final' to describe an account is misleading if further accounts are contemplated. The trial court erred in finding that the lack of realistic prospect of further dividend could end the impediment. The correct interpretation is that only confirmation of the final account brings the impediment to an end, ensuring legal certainty and avoiding subjective measures. As the final account was confirmed after service of summons, the special plea of...

Court Disposition

Appeal upheld; order of absolution from the instance set aside; special plea of prescription dismissed; matter referred back to proceed on the merits.

Orders

  • The appeal succeeds with costs.
  • The order of the court a quo is set aside and substituted with: 'The special plea of prescription is dismissed with costs.'