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[2019] ZASCA 108
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Botha v Standard Bank of South Africa Ltd (445/2018) [2019] ZASCA 108; 2019 (6) SA 388 (SCA) (6 September 2019)
THE
SUPREME COURT OF APPEAL
OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 445/2018
In
the matter between:
ANTOINETTE
BOTHA APPELLANT
and
STANDARD
BANK OF SOUTH AFRICA
LTD RESPONDENT
Neutral
citation:
Botha v Standard Bank of South
Africa Ltd
(445/2018)
[2019] ZASCA 108
(6
September 2019)
Coram:
Cachalia, Saldulker, Plasket and Dlodlo JJA
and Weiner AJA
Heard:
20 August 2019
Delivered:
6 September 2019
Summary:
Prescription – cancellation of mortgage
bond after mortgage debt is due and prescription has begun to run –
whether
cancellation changes prescription period of debt from 30
years to three years.
ORDER
On
appeal from:
Gauteng Division of the High
Court, Pretoria (Tuchten J sitting as court of first instance):
The appeal is dismissed
with costs including the costs occasioned by the employment of two
counsel.
JUDGMENT
Cachalia
JA (Saldulker, Plasket and Dlodlo JJA and Weiner AJA
concurring)
Introduction
[1]
The legal question raised in this appeal is whether the cancellation
of a mortgage bond after a mortgage debt is due and prescription
has
begun to run against it has the effect of changing the prescription
period of the debt from 30 years to three years. The Gauteng
Division
of the High Court (Tuchten J) held that the cancellation of the bond
had no bearing on the prescription period. The consequence
of this
finding is that the appellant, Ms Antoinette Botha, was ordered to
pay the respondent, Standard Bank of South Africa Ltd,
an amount of
R1 265 871 plus interest. The claim against her as surety
was for the shortfall of a debt secured by mortgage
bonds over her
husband’s immoveable property. His estate was subsequently
sequestrated, the bonds cancelled and the property
sold to a third
party.
[2]
When the bank sought to recover this shortfall from her, she
attempted to avoid liability on the ground that the principal debt
had become prescribed after three years in accordance with s 11
(d)
of the Prescription Act 68 of 1969 (the Act).
[1]
She contended that once the bonds were cancelled the debt was no
longer secured by a mortgage bond, and the bank could therefore
not
rely on the 30-year period of prescription applicable to such debts
in terms of s 11
(a)
(i)
of the Act. The bank, on the other hand, maintained that the
cancellation of the bonds did not change the character of the debt,
since it remained a debt secured by a mortgage bond as contemplated
in s 11
(a)
(i).
The court a quo upheld the bank’s contention, but granted the
appellant leave to appeal to this court. There is a further
issue
concerning the interruption of prescription, which was also decided
in the bank’s favour. In this appeal, the parties
maintain
their respective stances.
Facts
[3]
It will be helpful to set out the facts in more detail so that the
issues in this appeal are better understood. The appellant’s
husband, Mr Christoffel Theunis Botha, to whom I shall refer as the
principal debtor, concluded a home loan agreement with the
bank on 20
November 2008. Clause 14.1 contained one of several suspensive
conditions for the use of the loan. It required him to
register a
mortgage bond over the property for an amount of R450 000 in the
bank’s favour and also to obtain a suretyship
from the
appellant. Clause 18 contained two ‘special conditions’
relevant to this appeal. The first was that the loan
would be
consolidated with the existing loan(s) secured by the property
offered as mortgage security for repayment over the period
of the
loan. The second was that the mortgage bond would stipulate that the
bank secures an additional sum, equivalent to 25 per
cent of the bond
amount. This would represent further security (cover) for situations
where the bank would be obliged to pay amounts
on the principal
debtor’s behalf for which he would be liable, such as for the
preservation of the property, rates and taxes,
and legal costs.
[4]
Pursuant thereto, the principal debtor registered three mortgage
bonds over the property in favour of the bank to secure the
loan and
his indebtedness to the bank arising from the home loan agreement.
And the appellant bound herself in favour of the bank
as surety and
co-principal debtor. In terms of the suretyship, her liability would
not be affected by any ‘delay or omission
in the enforcement of
the bank’s rights’. It is not clear whether this clause
has any bearing on the appellant’s
right to rely on
prescription to resist the claim, but this was not an issue in the
appeal and need not be considered. In addition,
the appellant
accepted that any acknowledgment of indebtedness by the principal
debtor of proof of a claim against his insolvent
estate would be
binding upon her.
[5]
On 28 November 2011 the principal debtor’s estate was finally
sequestrated and trustees appointed to administer it. The
bank sought
to recover the full outstanding balance then owing to it by the
principal debtor from the insolvent estate. On 27 September
2012
the bank proved its claim against the estate in an amount of
R2 315 043. The principal debt, and thus the surety’s
debt, then became due, and prescription began to run against the debt
as contemplated by s 12(1) of the Act.
[2]
But, since the principal debt was the object of the bank’s
claim in the principal debtor’s insolvent estate, it
constituted
an impediment to the continued running of prescription in
terms of s 13(1)
(g)
.
[3]
It is common cause that this impediment ceased to exist on 26 January
2015 when the Master accepted the trustees’ final
liquidation
account. Consequently, prescription then began running again.
[6]
The appellant contends that prescription ran for one more year by
operation of s 13(1)
(i)
[4]
when the principal debt prescribed on 26 January 2016. The bank
maintains that prescription continued to run beyond this date because
the 30-year period, and not the three-year period, applies.
[7]
In the meantime, the trustees sold the property to a third party who
took transfer on 8 November 2012, and the bonds were cancelled.
The
trustees made a provisional payment of R1 million to the bank two
weeks later. On 9 June 2014 the trustees paid a further R74 374
in terms of the first and final liquidation, distribution and
contribution account, leaving a balance of R1 285 871 still
owing by the principal debtor. These payments form the basis of the
bank’s alternative submission, which is that they constituted
an acknowledgment of liability and therefore interrupted prescription
in accordance with s 14(1) of the Act.
[5]
So that even if the three-year prescriptive period applies, summons
was issued before its effluxion. As mentioned earlier, the
court a
quo determined this issue too in the bank’s favour.
[8]
On 26 January 2015 the Master confirmed the first and final
liquidation, distribution and contribution account in the principal
debtor’s insolvent estate. As at 10 June 2016 the
principal debt, as certified in terms of the home loan agreement,
stood at R1 285 871(not R1 265 871 attributed in
error by the court a quo). The bank issued summons claiming
this
shortfall from the appellant as surety for the principal debt,
together with interest, more than a year later, on 26 July
2016.
[9]
I turn to consider whether the cancellation of the bonds changed the
prescription period applicable to the debt from 30 years
to three
years. I commence this analysis with this court’s judgment in
Oliff v
Minnie
in
1953
.
[6]
Oliff
v Minnie
[10]
In dismissing the appellant’s special plea of prescription the
court a quo accepted the bank’s reliance on this
court’s
judgment in
Oliff
,
which established that the prescription period applicable to a debt
secured by a mortgage bond was fixed at the date on which
the debt
became due and did not alter its character merely because the bond
was subsequently cancelled. The case has been applied
several times
in different contexts.
[7]
[11]
However, in
Investec
Bank v Erf 436 Elandspoort (Pty) Limited & others
[8]
this court recently observed that the weight of academic authority
suggests that if the bond is cancelled before the debt is settled
and
the security ceases to exist, the debt is no longer secured and the
prescription period then changes to three years, as it
is with any
unsecured debt.
[9]
And it
accepted that the loss of security through the cancellation of the
bond may have a bearing on the prescription period applicable
to a
debt that was initially secured by the bond.
[10]
[12]
In the court a quo the appellant relied on this case for its
contention that the cancellation of the bonds and sale of the
property on 8 November 2012 altered the prescription period from 30
years to three years. The learned judge rejected this contention
on
two grounds. First, he distinguished this case from
Oliff
on the facts, and secondly, he held that
Investec
did not overrule
Oliff.
He thus considered himself bound by it.
[13]
In
Oliff
the
defendant had passed a second mortgage bond in favour of the
plaintiff to secure a debt payable on 1 September 1931. In December
1933, the holder of the first bond sold the bonded property in
execution, but the proceeds from the sale were insufficient to reduce
the indebtedness on the second bond. The property was transferred to
the purchaser without any encumbrances. The plaintiff, however,
issued summons on the second bond claiming the shortfall, only in
September 1951, 20 years later. The defendant claimed that the
debt
had become prescribed, under the statute then applicable, eight years
after the debt became due.
[11]
[14]
In upholding this defence the Provincial Division accepted that in
terms of the bond the plaintiff’s right of action
had accrued
on 1 September 1931. And also, that at common law, the claim would
have prescribed only after 30 years had the bond
retained its
original character and function. But, it reasoned, once the mortgaged
property had been sold in execution it was released
from the
operation of the bond, which then mutated into a mere acknowledgment
of debt and prescription began to run afresh. The
claim would
therefore have become prescribed eight years later, many years before
summons was issued.
[15]
The decision was reversed on appeal. Starting from the premise that
prescription began running when the right of action on
the mortgage
bond accrued on 1 September 1931, this court held that the bond did
not cease to be one just because it had become
valueless as security.
It reasoned that the class of written instrument upon which the
action was founded determines the prescription
period that is
applicable to it. And further that there was no warrant for
suggesting that its classification should alter in mid-stream
if the
subject matter of the obligation perishes. A mortgage bond that had
become valueless as security therefore retained its
classification
and character despite its demise because the prescription law was not
concerned with security.
[12]
United
Kingdom
[16]
The comparable legislation in the United Kingdom, s 20(1) of the
Limitations Act of 1980, dealing with the prescription of
debts
secured by mortgage bonds, has been interpreted in a manner consonant
with
Oliff.
[13]
In this regard the bank drew our attention to
Bristol
& West plc v Bartlett & another; Paragon Finance plc v Banks
and Halifax plc v Grant
,
[14]
in which the Court of Appeal, Civil Division was confronted by three
appeals brought in order to obtain a determination of the
legal
question whether a claim for a shortfall of a mortgagor’s debt
lies under the mortgage bond and was governed by the
12-year
limitation period applicable to mortgage bonds instead of the shorter
six year period, which applies generally, after the
bond is cancelled
following the mortgagee’s sale of the property to recover the
secured debt. The court held that claims
for a mortgage debt may be
instituted up to 12 years from the date the cause of action of
accrues, under s 20(1) of the Limitation
Act, even if the mortgagee
has exercised its power of sale before commencing proceedings.
[15]
[17]
In
Bartlett
,
the first of the three matters under consideration, the court
reasoned that the right to sue for the mortgage debt arose when
the
borrower failed to pay the monthly instalment and the debt was
outstanding on the security of the mortgage.
[16]
And the fact that, at some later time, the ‘power of sale’
was exercised by the lender and the mortgage discharged,
did not mean
that the mortgage debt ceased to be payable. For if this were the
case, it continued, ‘the logical result would
be that the
covenant to pay ceased to be operative and the borrower had no
obligation to pay the shortfall after the sale’.
[17]
[18]
In
Banks
,
the second of the three cases, the court was faced with an
interesting argument for the mortgagor based on the construction of
the mortgage deed. This was that there was an underlying contract of
loan, which was distinct from the contract contained in the
formal
mortgage deed. The loan agreement contemplated only that the initial
amount of the loan would be secured. The deed secured
future
advances. The obligation to repay the indebtedness under the
underlying contract, it was argued, was subject to the shorter
limitation period of six years whilst that under the deed was 12
years.
[18]
[19]
The court rejected this argument for three reasons. First, it was
satisfied that if there was an antecedent loan agreement,
it merged
with the formal mortgage deed at least to the extent of the
indebtedness, which existed at the date of the initial loan.
It was
thus pointless to have two contracts.
[19]
Second, the court considered, there was no real antecedent loan
agreement. It accepted that there was a contract for a loan once
the
borrower accepted the lender’s offer to make a loan, but this,
it said, was something different from an antecedent loan
agreement.
Since the borrower’s receipt of the funds was conditional upon
the execution of a mortgage deed, once that was
done, the deed was
the contract.
[20]
Finally, it reasoned that even if there were two separate coexisting
contracts, there was no reason why the lender could not choose
which
to enforce.
[21]
[20]
I shall return to the Court of Appeal’s reasoning later in this
judgment when I consider the terms of the loan and mortgage
agreements in the instant case. Suffice to say at this stage that in
West
Bromwich Building Society v Wilkinson & another
[22]
the House of Lords was asked to answer the general question of law
which was whether s 20 applies in a case in which a loan is
originally secured by a mortgage but the security is realised (or
released) before the proceedings are commenced. It was, therefore,
called upon to consider whether
Bristol
& West
had
been correctly decided.
[23]
[21]
To this end, in para 8 Lord Hoffman
[24]
referred with approval to the following statement from
Grant
,
the third of the cases:
‘
Since the subsection refers to
“the date on which the right to receive the money accrued”
it is much more natural to
read the subsection as applying to
mortgages existing on the date on which such right accrued.’
[25]
[22]
English law, he observed, attributes periods of limitation by
reference to the classification of the cause of action which
the
claimant seeks to enforce.
[26]
He continued:
‘
This
method of classification suggests that ordinarily time will run from
the moment when the cause of action designated by the
appropriate
rule has arisen. It would be strange if the lender could then stop
time running by his own act in exercising the power
of sale. If,
therefore, the cause of action when it arose was a claim to a debt
secured on a mortgage, I do not think section 20
ceases to apply when
the security is subsequently realised.’
[27]
Importantly,
because the Limitation Act categorised different limitation periods
based on the particular cause of action, and that
these periods ran
from the date on which the cause of action arose, it followed
logically that they would be determined with reference
to the cause
of action.
The House of Lords thus endorsed the
key finding in
Bristol & West
.
[23]
Similarly, in South Africa, under the
Prescription Act, different
prescription periods are statutorily specified on the basis of the
type of debt. This is also how the commencement and duration
of
prescription periods was treated in
Oliff
,
under the provision applicable there.
[28]
For present purposes it is apparent that the manner in which the UK
courts have treated claims brought under a mortgage bond is
consistent with the approach in
Oliff
.
Prescription periods applicable to debts secured by mortgage bonds in
both jurisdictions run from the date the right of action
accrues and
the debt is due. Once fixed, the period is immutable and unaffected
by the subsequent cancellation of the bond. Put
differently, in the
United Kingdom it is the classification of the cause of action, and
in South Africa, the classification of
the debt, which conclusively
determines the period of prescription, not the fate of the security.
The
effect of Investec
[24]
This brings me back to
Investec
, which the appellant heavily
relies upon to support her case that the subsequent cancellation of
the bond by the trustees of her
husband’s insolvent estate
destroyed the security and altered the prescription period to three
years. The basis for this
argument is the following statement in
Investec
:
‘
The weight of academic
authority . . . supports the view that once the security ceases to
exist, the debt is no longer secured and
the prescription period then
becomes 3 years as it is with any other debt . . . .’
[29]
The
critique of these academic writers is that
Oliff
may no
longer be good law because it was based on a materially different
legislative provision – a proposition that this court
implicitly accepted
[30]
–
and is no longer authority for the correct position under the current
Prescription Act.
[25
]
Yet, a closer examination of the provision that applied in
Oliff
and the judgment itself reveals no
fundamental difference between the two statutes and the common law
for present purposes.
Section 2
of the O V S Wetboek provided
expressly that prescription ran from the date on which the cause of
action arose while, the court
held, the 30-year prescription period
in terms of the common law began to run from the time of
actio
nata
(the birth of the action). This was when
the right of action accrued. Under the present Act different
prescription periods are
statutorily specified on the basis of the
type of debt, under s 11. Prescription runs from the date on which
the debt becomes due,
in terms of s 12(1), which is simply another
way of saying it runs when the right of action accrues.
Oliff
therefore cannot be distinguished from the
present case, or
Investec
,
on this basis.
[26]
That being so, the question is whether
Oliff
is no longer good law having regard to the
ratio decidendi
in
Investec.
The
following were the facts in
Investec
:
Investec had lent money to the debtor. As security the debtor
registered a notarial covering mortgage bond in favour of Investec
over a notarial lease agreement it had concluded with a third party.
During January 2002 the third party cancelled the lease agreement,
which a court order confirmed in August 2002. On 10 September 2002,
pursuant to the cancellation of the lease, Investec notified
the
debtor that it was in breach of the loan agreement. But it sued the
debtor only eight years later for the outstanding balance.
[27]
It was common cause that the debt had become due on 18 September
2002. It was also accepted that Investec’s action was
founded
on the loan agreement, and not on the bond. The court accordingly
held that the prescription period was three years calculated
from the
date the debt became claimable on the loan agreement.
[31]
It reasoned that Investec’s argument was premised on the
incorrect assumption that the period of prescription is to be
determined,
when the loan agreement secured by notarial lease
agreement, was concluded, instead of when the debt under the loan
agreement became
due. The appellant makes the same error.
[28]
So, the
obiter dictum
in
Investec
,
underpinned by academic authority, that once the security ceases to
exist, the debt is no longer secured, is with respect not
an accurate
exposition of the law and is against the tenor of authority. The true
position is that it is only when the right of
action accrues and the
debt is due that the prescription period is determined. And once
determined, the period is fixed and immutable;
it is not alterable
retroactively through the subsequent cancellation of the bond.
Investec
is therefore
only authority for the proposition that where the security is
cancelled before the debt becomes due, and prescription
has not yet
begun to run against it, the debt is not a mortgage debt contemplated
by s 11
(a)
(i) of the
Act. This is consistent with
Oliff.
[29]
If the appellant’s submission that the cancellation of the
security altered the prescription period were to be upheld,
it would
mean that the period applicable to the secured debt may be altered
retroactively in mid-stream, after prescription has
begun to run
against the debt. The same debt would then be governed by two
different prescription periods. The anomalous consequence
would be
that where three years have already run against a 30-year debt then,
in the absence of any delay
[32]
or interruption,
[33]
the debt
would become prescribed immediately, thus leaving the creditor
remediless through no dilatoriness on its part. This undermines
the
purpose of the Act, which designates categories of debt according to
classes of written instrument and ascribes particular
prescription
periods to them in order to ensure legal certainty.
[30]
It follows that the court a quo correctly held that it was bound by
Oliff
and
that
Investec
had not
changed the well-established legal principle established there.
Moreover, it is clear from
Investec
that ss
10, 11 and 12 of the Act are interconnected.
[34]
Section 10 says that the debt is extinguished by prescription after
the lapse of the period that applies to it. Section 11 fixes
the
period of prescription for a debt secured by mortgage bond at 30
years and s 12(1) provides that prescription commences running
as
soon as the debt is due. Thus read, the Act requires a debt to be
classified as a debt secured by a bond when it is due –
not
when the bond is registered – because that is when prescription
begins to run. This was also the law applicable in
Oliff.
The
terms of the loan
[31]
A further difficulty for the appellant lies in the terms of loan and
mortgage agreements. Underlying the contention that once
the security
is cancelled only the principal obligation under the loan agreement
remains is the assumption that there are two separate
contracts: the
loan agreement and the mortgage deed – with the former having a
prescription period of three years whilst
the latter has one of 30
years. This is the import of what the authors of
Silberberg
and Schoeman’s
Law of
Property
say.
[35]
[32]
However, the terms of the loan agreement, which include the
suspensive and special conditions relating to the mortgage bond
referred to earlier, make it artificial to separate the antecedent
contract of loan from the bond agreement. Once the suspensive
and
special conditions under the loan agreement were fulfilled, there was
in fact only one agreement and not two co-existing agreements.
The
debt secured under this agreement was the mortgage debt, which became
due and to which the 30-year period of prescription applied.
This was
also how the bank described the debt in its claim to the trustees of
the insolvent estate, which counsel for the appellant
properly
accepted posed a difficulty for her.
[33]
Put differently the home loan was conditional upon the execution of
the bond. Once this was done and the loan was advanced,
the bond –
not the loan agreement – became the operable contract. This was
the agreement from which the debt arose
and which the bank relied
upon to prove its claim against the insolvent estate. It was quite
simply a unitary mortgage debt to
which the 30-year period applied.
This was the approach adopted by the Court of Appeal in
Bristol
& West
[36]
based on the deed of mortgage in issue in the
Banks
matter. That approach, with respect, commends itself in the instant
case.
Conclusion
[34]
For all these reasons I conclude that the court a quo correctly held
that the cancellation of the security following the sale
of the
property by the trustees had no bearing on the period of prescription
that was fixed at 30 years in terms of s 11
(a)
(i)
of the Act at the time the debt became due. As a result of the
conclusion to which I have come it is unnecessary to consider
the
second issue in this appeal, which is whether the payments the
trustees of the insolvent estate made to the bank amounted to
an
acknowledgment of liability and therefore interrupted prescription in
accordance with s 14(1) of the Act.
[37]
I leave this issue open.
[35]
I pointed out earlier that the court a quo in error found that the
certified amount owing to the bank was R1 265 871.81
instead of
R1 285 871.81, a difference of R20 000. However, the bank
asked only that the appeal be dismissed and not
that the correct
amount owing be reflected in the order. In the circumstances the
following order is made:
‘
The appeal is
dismissed with costs including the costs occasioned by the employment
of two counsel.’
______________
A
Cachalia
Judge
of Appeal
Appearances
For
the Appellant: R Goslett
Instructed
by: AC Notnagel Attorneys, c/o AB Lowe Attorneys, Pretoria
Honey
Attorneys, Bloemfontein
For
the Respondent: S Symon SC (with him N Konstantinides SC)
Instructed
by: Edward Nathan Sonnenbergs Inc, Sandton
Symington
& De Kok, Bloemfontein
[1]
Section 11
of the
Prescription Act 68 of 1969
provides for the
periods of prescription of debts according their classification. It
reads as follows:
‘
Periods
of prescription of debts
11.
The periods of prescription of debts shall be the following:
(a)
30 years in respect of-
(i)
any debt secured by mortgage bond;
(ii)
any judgment debt;
(iii)
any debt in respect of any taxation imposed or levied by or under
any law;
(iv)
any debt owed to the State in respect of any share of the profits,
royalties or any similar consideration payable in respect
of the
right to mine minerals or other substances;
(b)
fifteen years in respect of any debt owed to the State and arising
out of an advance or loan of money or a sale or lease of land
by the
State to the debtor, unless a longer period applies in respect of
the debt in question in terms of paragraph
(a)
;
(c)
six years in respect of a debt arising from a bill of exchange or
other negotiable instrument or from a notarial contract, unless
a
longer period applies in respect of the debt in question in terms of
paragraph
(a)
or
(b)
;
(d)
save where an Act of Parliament provides otherwise, three years in
respect of any other debt.’
[2]
‘
When
prescription begins to run
12.
(1)
Subject to the provisions of subsections (2), (3), and (4),
prescription shall commence to run as soon as the debt is due.’
[3]
‘
Completion
of prescription delayed in certain circumstances
13.
(1)
If-
.
. .
(g)
the debt is the object of a claim filed against the estate of a
debtor who is deceased or against the insolvent estate of the
debtor
or against a company in liquidation or against an applicant under
the Agricultural Credit Act, 1966; or . . .’
[4]
‘
Completion
of prescription delayed in certain circumstances
(1)
If-
.
. .
(i)
the relevant period of prescription would, but for the provisions of
this subsection, be completed before or on, or within one
year
after, the day on which the relevant impediment referred to in
paragraph
(a)
,
(b)
,
(c)
,
(d)
,
(e)
,
(f)
,
(g)
or
(h)
has ceased to exist,
the
period of prescription shall not be completed before a year has
elapsed after the day referred to in paragraph
(i)
.’
[5]
‘
Interruption
of prescription by acknowledgement of liability
14.
(1)
The running of prescription shall be interrupted by an express or
tacit acknowledgement of liability by the debtor.’
[6]
Oliff
v Minnie
1953
(1) SA 1
(A) (hereafter referred to as
Oliff
).
[7]
Lief
NO v Dettman
1964 (2) SA 252
(A) at 264;
Thienhaus
NO v Metje & Ziegler Ltd & another
1965 (3) SA 25
(A) at 38;
Miracle
Mile Investments (Pty) Ltd & another v Standard Bank
2016 (2) SA 153
(GJ) para 30;
Reichin
v Efthimiou
1979 (2) SA 445 (W).
[8]
Investec
Bank v Erf 436 Elandspoort (Pty) Limited & others
[2017]
ZASCA 128
(hereafter referred to as
Investec
).
[9]
Ibid paras 15-17.
[10]
Ibid para 19.
[11]
Section 2 of Chapter 23 of the O V S Wetboek, which then applied in
the Orange Free State. It read:
'Geene
aanspraak in rechten of actie op eenig geschrift of liquide document
waarop men provisioneel vonnis kan erlangen, of voortspruitende
uit
eenige schriftelijke schulderkentenis, schriftelijke overeenkomst of
schriftelijke verbintenis van welken aard ook,
kan ingesteld
worden voor enig hof in dezen Staat na verloop van acht jaren,
gerekend vanaf het tydstip waarop het recht tot
aanspraak en actie
daarop ontstond, met dien verstande nochtans, dat niets hierin
vervat beschouwd zal worden betrekking te hebben
op eenige
schepenkennis, generaal of speciaal verband, of eenig vonnis van een
hof.' (This provision was quoted in
Oliff
at 2F-G.)
[12]
Oliff
at
3C-4A.
[13]
Section 20(1) of the Limitation Act, similar to
s 11
(a)
(i)
of the
Prescription Act says
that ‘No action shall be brought
to recover any principal sum of money secured by a mortgage or other
charge on property
. . . after the expiry of twelve years from the
date on which the right to receive the money accrued.’
[14]
Bristol
& West plc v Bartlett & another; Paragon Finance plc v Banks
and Halifax plc v Grant
[2002] EWCA Civ 1181
;
[2002]
4 All ER 544
(CA) (hereafter referred to generally as
Bristol
& West
.
Where I refer to any of the three separate cases that were dealt
with, I shall do so with reference to the names of the respondents
–
Bartlett
,
Banks
and
Grant
.)
[15]
Ibid paras 6, 7 and 35.
[16]
Ibid para 14.
[17]
Ibid para 17.
[18]
Ibid para 21.
[19]
Ibid para 22.
[20]
Ibid para 23.
[21]
Ibid para 24.
[22]
West
Bromwich Building Society v Wilkinson & another
[2005]
UKHL 44
;
[2005] 1 WLR 2302
(HL) (hereafter referred to as
West
Bromwich Building Society
).
[23]
Above para 18.
[24]
In concurrence: Lord Scott of Foscote, Lord Walker of Gestingthorpe,
Baroness Hale of Richmond and Lord Carswell.
[25]
Bristol
& West
para
30.
[26]
West
Bromwich Building Society
para 10.
[27]
Ibid.
[28]
Oliff
at
3A-D.
[29]
Investec
para
17 and the preceding paras 15 and 16, where reference is made to
Badenhorst, Pienaar & Mostert
Silberberg
and Schoeman’s The Law of Property
,
5 ed (2006) at 378 para 16.4.9 (c); M M Loubser:
Extinctive
Prescription
1
ed (1996) at 38; and J Saner
Prescription
in South African Law
(1996)
at 3-35.
[30]
Ibid para 16.
[31]
Investec
para
18.
[32]
As envisaged in s 13 of the Act.
[33]
As envisaged in s 14 of the Act.
[34]
Investec
paras
9 and 10.
[35]
Badenhorst, Pienaar & Mostert
Silberberg
and Schoeman’s
The
Law of Property
5 ed (2006) at 378 para 16.4.9 (c). See also
Investec
para
15.
[36]
See
Investec
paras
18 and 20.
[37]
‘
Interruption
of prescription by acknowledgement of liability
14.
(1)
The running of prescription shall be interrupted by an express or
tacit acknowledgement of liability by the debtor.’