Petherbridge and Another v Westcott (11310/2006) [2012] ZAKZDHC 85 (19 December 2012)

Petherbridge and Another v Westcott (11310/2006) [2012] ZAKZDHC 85 (19 December 2012)

The court found that the plaintiffs failed to discharge the onus of proving that prescription was interrupted or delayed. The acknowledgment of debt prescribed three years after the first unpaid instalment, and the letter from Charlotte Westcott did not constitute an acknowledgment of liability sufficient to interrupt prescription. Furthermore, the timing of the letter relative to the divorce rendered it ineffective to revive the debt. The defendant is likely, on a balance of probabilities, to succeed in the principal case due to the prescription defence. Accordingly, the plaintiffs' claim for provisional sentence is refused.

Citation
[2012] ZAKZDHC 85
Parties
Plaintiff: Benjamin Petri Petherbridge; Plaintiff: Janette Mary Petherbridge; Defendant: Brian Errol Westcott
Court
Kwazulu-Natal High Court, Durban
Jurisdiction
South Africa
Judgment Date
19 December 2012
Case Number
11310/2006
Procedural Posture
Provisional Sentence Application / Judgment
Outcome
Plaintiffs' claim for provisional sentence is refused, with costs.
Judges
Van Zyl
Legal Topics
Provisional Sentence, Acknowledgment of Debt, Prescription Act, Interruption of Prescription
Civil Procedure Banking and Finance Provisional Sentence Acknowledgment of Debt Prescription Act Interruption of Prescription

Case Brief

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Parties

Benjamin Petri Petherbridge

Plaintiff

Janette Mary Petherbridge

Plaintiff

Brian Errol Westcott

Defendant

Procedural Posture

Provisional Sentence Application / Judgment

Legal Issues

  1. 1 Whether the defendant is liable to the plaintiffs under the acknowledgment of debt.
  2. 2 Whether the debt claimed by the plaintiffs has prescribed under the Prescription Act.
  3. 3 Whether the letter from Charlotte Westcott interrupted prescription or revived the debt.

Ratio Decidendi

The court found that the plaintiffs failed to discharge the onus of proving that prescription was interrupted or delayed. The acknowledgment of debt prescribed three years after the first unpaid instalment, and the letter from Charlotte Westcott did not constitute an acknowledgment of liability sufficient to interrupt prescription. Furthermore, the timing of the letter relative to the divorce rendered it ineffective to revive the debt. The defendant is likely, on a balance of probabilities, to succeed in the principal case due to the prescription defence. Accordingly, the plaintiffs' claim for provisional sentence is refused.

Court Disposition

Plaintiffs' claim for provisional sentence is refused, with costs.

Orders

  • The plaintiffs' claim for provisional sentence is refused.
  • The plaintiffs are ordered to pay the costs of the application.