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Banking And Finance [2023] ZAGPPHC 1916

Standard Bank of South Africa Limited v Barnard (41826/21)

Standard Bank of South Africa Limited v Barnard (41826/21) [2023] ZAGPPHC 1916 (23 November 2023)

Court
North Gauteng High Court, Pretoria
Case number
41826/21
Judge
Millar

The court found that the applicant's affidavit complied with all statutory requirements for commissioning, as both the deponent and commissioner were present and the necessary certifications were made. The respondent's point in limine regarding non-compliance was rejected. On the substantive defence, the court held that the prescription period for a debt secured by a mortgage bond is fixed at the time the right of action accrues and is not affected by the subsequent cancellation of the bond. The Supreme Court of Appeal's decision in Botha v Standard Bank was followed, confirming that the 30-y…

Source excerpt

  • Suretyship Liability
  • Prescription Act
  • Mortgage Bond Debt
  • Summary Judgment
  • Commissioner Of Oaths Compliance
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Banking And Finance [2019] ZASCA 108

Botha v Standard Bank of South Africa Ltd (445/2018)

Botha v Standard Bank of South Africa Ltd (445/2018) [2019] ZASCA 108; 2019 (6) SA 388 (SCA) (6 September 2019)

Court
Supreme Court of Appeal
Case number
445/2018
Judges
Cachalia, Saldulker, Plasket, Dlodlo, Weiner

The Supreme Court of Appeal held that the cancellation of the mortgage bonds after the debt became due did not alter the prescription period applicable to the debt. The prescription period is determined at the moment the debt becomes due, and the debt remains classified as one secured by a mortgage bond under s 11(a)(i) of the Prescription Act, attracting a 30-year prescription period. The court rejected the appellant's reliance on Investec Bank v Erf 436 Elandspoort, clarifying that Investec only applies where the security is cancelled before the debt becomes due. The court found that the de…

Source excerpt

  • Prescription Act
  • Mortgage Bond Debt
  • Suretyship Liability
  • Debt Classification
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Civil Procedure [2018] ZAGPPHC 35

Standard Bank of South Africa Limited v Botha (54753/16)

Standard Bank of South Africa Limited v Botha (54753/16) [2018] ZAGPPHC 35 (7 March 2018)

Court
North Gauteng High Court, Pretoria
Case number
54753/16
Judge
Tuchten

The court held that the applicable prescriptive period for the plaintiff's claim against the defendant as surety was thirty years, as the debt was secured by mortgage bonds when it became due. The subsequent cancellation of the bonds did not alter the nature of the debt for prescription purposes. The court further found that payments made by the trustees in the principal debtor's insolvent estate constituted acknowledgements of liability that interrupted prescription, and such interruption operates against the surety. The restrictive interpretation advanced by the defendant was rejected, and…

Source excerpt

  • Prescription Act
  • Suretyship Liability
  • Mortgage Bond Debt
  • Interruption Of Prescription
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Civil Procedure [2014] ZAGPPHC 419

First Rand Bank Limited v Austin and Another (55320/2011)

First Rand Bank Limited v Austin and Another (55320/2011) [2014] ZAGPPHC 419 (29 May 2014)

Court
North Gauteng High Court, Pretoria
Case number
55320/2011
Judge
Khumalo

The court found that the debt in question is the principal debt secured by a mortgage bond, not an accessory or suretyship obligation. Section 11(a)(i) of the Prescription Act 68 of 1969 prescribes a thirty-year period for debts secured by a mortgage bond. The invocation of the acceleration clause and the issuing of summons in 2007 did not alter the nature of the debt or reduce the prescription period to three years. The authorities cited by the defendants, including Kilroe-Daley and Jans, were distinguished as they dealt with suretyship and accessory debts, which are not applicable to the pr…

Source excerpt

  • Prescription Act
  • Mortgage Bond Debt
  • Acceleration Clause
  • Judicial Interruption Of Prescription
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Civil Procedure [2012] ZAECGHC 85

Mhlokonya v Company Unique Finance (Pty) Ltd (CA 04/2012)

Mhlokonya v Company Unique Finance (Pty) Ltd (CA 04/2012) [2012] ZAECGHC 85 (18 October 2012)

Court
Eastern Cape High Court, Grahamstown
Case number
CA 04/2012
Judges
GG Goosen, B Sandi

The magistrate's dismissal of the first rescission application was improper because a notice of withdrawal had been served prior to the hearing, and the respondent's attorneys failed to inform the court. The dismissal was not based on the merits and did not preclude a subsequent application. The second rescission application should have been granted because the appellant had filed and served a notice of intention to defend before default judgment was entered. The magistrate failed to consider the evidence and applicable legal principles, and did not provide adequate reasons for the decision.…

Source excerpt

  • Rescission Of Judgment
  • Default Judgment
  • Notice Of Intention To Defend
  • Magistrates Court Rules
  • Condonation
  • Mortgage Bond Debt
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About this LexChat collection

South Africa decisions are organised by court, judge, legal area and indexed issue so a practitioner can move from a proposition to a citable authority with the surrounding context intact.

Source links and collection timestamps are retained alongside the indexed records.