South Africa Case Law

Standard Bank of South Africa Limited v Van Staden and Another (10690/2023)

Standard Bank of South Africa Limited v Van Staden and Another (10690/2023) [2024] ZAWCHC 142 (28 May 2024)

Court

Western Cape High Court, Cape Town

Case number

10690/2023

Judge

Gassner AJ

The court found that the defendants failed to establish a bona fide defence to Standard Bank's claim. The prescription period applicable to the debt is thirty years, not three, as the debt was secured by a mortgage bond and Botha v Standard Bank is clear authority. The National Credit Act's reckless credit provisions do not apply to the pre-existing loan agreement or the suretyship, as confirmed by the transitional provisions and relevant case law. The spousal consent was validly obtained and signed, and the defendants' bare assertions regarding lack of understanding or explanation of the sur…

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• Suretyship Liability
• Mortgage Bond Prescription
• National Credit Act
• Reckless Credit
• Summary Judgment
• Spousal Consent

Absa Bank Limited v Mosomane and Others (37737/2020)

Absa Bank Limited v Mosomane and Others (37737/2020) [2022] ZAGPPHC 23 (18 January 2022)

Court

North Gauteng High Court, Pretoria

Case number

37737/2020

Judge

M Munzhelele

The court found that the debt owed to the applicant was secured by a registered mortgage bond, and therefore, the applicable prescription period is thirty years under section 11(a)(i) of the Prescription Act. The respondents' argument that the debt prescribed after three years was rejected as legally flawed. The court distinguished the cited cases, noting that in this matter, the debt was directly secured by a mortgage bond and not by suretyship or an unsecured loan. The court held that regardless of when the debt became due, the thirty-year prescription period had not lapsed. Consequently, t…

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• Prescription Act
• Mortgage Bond Prescription
• Leave To Institute Proceedings
• Costs Order

ABSA Bank Limited v Du Plooy (2007/2021)

ABSA Bank Limited v Du Plooy (2007/2021) [2021] ZAFSHC 224 (16 September 2021)

Court

Free State High Court, Bloemfontein

Case number

2007/2021

Judge

I van Rhyn

The High Court granted ABSA a provisional sequestration order against Pieter Willem du Plooy, rejecting prescription, securitisation, and locus standi defences.

• Provisional Sequestration
• Mortgage Bond Prescription
• Acts Of Insolvency
• Credit Agreements
• Advantage To Creditors
• Provisional-sequestration

Venter v Firstrand Bank Limited t/a First National Bank (3835/2019)

Venter v Firstrand Bank Limited t/a First National Bank (3835/2019) [2020] ZAFSHC 224 (27 November 2020)

Court

Free State High Court, Bloemfontein

Case number

3835/2019

Judge

Chesiwe

Rescission application dismissed: the court found no sufficient cause and no bona fide prescription defence where the debt was secured by mortgage bond.

• Rescission Of Judgment
• Prescription Act
• Acknowledgment Of Debt
• Default Judgment
• Mortgage Bond Prescription
• Rescission-of-judgment

eThekwini Municipality v Mounthaven (Pty) Limited (CCT05/18)

eThekwini Municipality v Mounthaven (Pty) Limited (CCT05/18) [2018] ZACC 43; 2019 (2) BCLR 236 (CC) ; 2019 (4) SA 394 (CC) (31 October 2018)

Court

Constitutional Court

Case number

CCT05/18

Judges

Mogoeng, Basson, Cameron, Dlodlo, Froneman, Goliath, Khampepe, Mhlantla, Petse, Theron

The Constitutional Court held that the Municipality's claim for re-transfer of the property is a 'debt' as contemplated by the Prescription Act. The obligation to deliver immovable property, even if effected by registration of transfer, constitutes a debt and prescribes within three years. The reversionary right in the deed of transfer is a personal right, not a limited real right, as it does not bind successors in title and does not result in a subtraction from the dominium of the land. Registration of the reversionary clause does not convert the personal right into a real right. The alterna…

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• Prescription Act
• Real Vs Personal Rights
• Reversionary Clauses
• Deeds Registries Act
• Access To Court
• Mortgage Bond Prescription

Investec Ltd v ERF 436 Elandspoort (Pty)Ltd (2517/2011)

Investec Ltd v ERF 436 Elandspoort (Pty)Ltd (2517/2011) [2016] ZAGPPHC 505 (25 May 2016)

Court

North Gauteng High Court, Pretoria

Case number

2517/2011

Judge

Molopa-Sethosa

The High Court held that a debt once secured by a mortgage bond was nevertheless subject to three-year prescription after the bond had been cancelled before the debt became due.

• Prescription Act
• Mortgage Bond Prescription
• Special Plea
• Debt Due
• Acknowledgement Of Liability
• Prescription-act