PRESCRIPTION NOT A DEFENCE AGAINST THE DILIGANT CLAIMANT’S EFFORTS
Rademeyer v Ferreira (343/2021) [2022] ZASCA 92 (17 June 2022)
Some 14 years after entering into a sale agreement and paying the deposit, the purchaser remained obstinate in his refusal to proceed with registration of transfer. The seller had at all times attempted to hold the purchaser to the agreement: Initially a claim for specific performance was launched, and later (albeit under a different case number), an action for damages. The seller was ultimately successful, the purchaser’s reliance on prescription failing on the facts. The Court noted that although the seller had proceeded against the purchaser in separate proceedings, he had at all times been acting on the same cause of action, the breach of the sale agreement. Hence prescription was sufficiently interrupted. The peculiar facts of the matter make for a good read!
The Judgment
Summary of the Judgment
EXECUTION SALE OF A DEBTOR’S HOME HELD IN A TRUST
Petrus Johannes Bestbier and Others v Nedbank Limited (150/2021) [2022] ZASCA 88 (13 June 2022)
For a while now, it was considered that the Rule 46A judicial scrutiny that is performed before an order for the sale in execution of a debtor’s primary residence is granted applies only where an indigent debtor risks losing the home he owns in his personal capacity. Is the same scrutiny then denied to trustees, shareholders who live in a property owned by a company or trust? And does it matter that the mortgage debt relates to loans obtained for the business that is (also) conducted on the property, and not primarily for the purchase of the land as primary residence? No, said the Supreme Court of Appeal here, as the Courts’ scrutiny must take all factors into account and weigh these up in context, before the execution order is granted.
