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[2016] ZASCA 73
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Masilo N.O and Others v Betterbridge (Pty) Limited (37/2015) [2016] ZASCA 73 (25 May 2016)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Case
No: 37/2015
DATE:
25 MAY 2016
Not
Reportable
In
the matter between:
MICHAEL
MMATHOMO MASILO
NO
...........................................................
FIRST
APPELLANT
PHILIPPUS
GIOVANNI TORRE
NO
...........................................................
SECOND
APPELLANT
MONICA
COWIN
NO
........................................................................................
THIRD
APPELLANT
And
BETTERBRIDGE
(PTY)
LIMITED
............................................................................
RESPONDENT
Neutral
citation: Masilo v Betterbridge (37/2015)
[2016] ZASCA 73
(25 May
2016)
Coram:Cachalia,
Seriti, Willis and Mbha JJA and Victor AJA
Heard:
16 May 2016
Delivered:
25 May 2016
Summary:
Prescription – extinctive prescription – delay in
completion – debt object of claim filed against company
in
liquidation – claim withdrawn after ‘admitted to proof’
under
s 44
of the
Insolvency Act 24 of 1936
. Whether prescription
delayed in terms of
s 13(1)(g)
of the
Prescription Act 68 of 1969
.
ORDER
On
appeal from: North Gauteng Division of the High Court, Pretoria
(Unterhalter AJ sitting as court of first instance), judgment
reported sub nom as Betterbridge (Pty) Ltd v Masilo & others
2015
(2) SA 396
(GP):
The
appeal is dismissed with costs.
JUDGMENT
Cachalia
JA (Seriti, Willis and Mbha JJA and Victor AJA concurring)
[1]
This is an appeal from the North Gauteng Division of the High Court,
Pretoria (Unterhalter AJ) rejecting a special plea by the
defendants
that the plaintiff’s claim had prescribed. Instead, it upheld
the plaintiff’s contention that the completion
of prescription
was delayed in terms of
s 13(1)
(g)
of the
Prescription Act 68 of 1969
.
[2]
The facts and the reasoning of the learned judge are set out fully in
his judgment, which has now been reported sub nom as
Betterbridge
(Pty) Ltd v Masilo & others
2015
(2) SA 396
(GP).
I
agree fully with the judgment. No purpose will be served by rehashing
the facts or repackaging the reasoning.
[3]
Before us the appellants raised a new argument, one that the court a
quo was not asked to consider. They now contend that if
a claim is
withdrawn before the presiding officer at the meeting of creditors
decides whether to admit or reject the claim, as
in this case, the
claim will not be the ‘object of a claim filed’ as
s
13(1)
(g)
envisages. This is because a creditor, who wants the benefit of a
delay in the completion of prescription, must participate in
the
process provided for in
s 44
of the
Insolvency Act until
completion.
A creditor, who lodges a claim with the Master, and then withdraws it
from the adjudication process provided for in
s 44
, does not make his
claim the object of a claim filed against the company in liquidation.
And therefore cannot gain the benefit
of the delay of prescription. A
withdrawn claim, so it is contended, is as good as no claim at all.
[4]
There is no merit in this contention. Apart from the fact that this
defence was not pleaded in the rejoinder, it is apparent
from the
judgment of the court a quo that the impediment becomes operative as
soon as the claim is ‘admitted to proof’.
This occurs
when the presiding officer at the meeting of creditors accepts the
claim as filed in terms of
s 13(1)
(g)
;
the adjudication process need not be completed. This is precisely
what happened in this case.
[5]
Mr Pye properly accepted that if the court a quo was correct in
coming to this conclusion, the appeal could not succeed. The
appeal
must therefore fail.
[6]
I make the following order:
‘
The
appeal is dismissed with costs.’
A
CACHALIA
JUDGE
OF APPEAL
APPEARANCES
For Appellant: W
B Pye
Instructed
by: Harvey Nossel Attorneys, Johannesburg
Lovius-Block,
Bloemfontein
For
Respondent: G Nel
Instructed
by: Neil Esterhuysen Attorneys, Pretoria
Kramer
Weihmann & Joubert Attorneys, Bloemfontein