Analyses: Prescription, Suretyship and the Unwelcome Revival of Correality

• Jurisdiction: South Africa
• Date: 25 May 2019
• Pages: 384-389
• Author: Christopher Forsyth
• Published date: 25 May 2019

Analyses/Analises

Prescription, Suretyship and the

Unwelcome Revival of Correality

CHRISTOPHER FORSYTH

Robinson College, Cambridge

1 Introduction

Do the obligations of the surety and those of the principal debtor

prescribe independently? Is it possible, for instance, that the creditor finds

that the surety has been released even though the principal debtor is still

bound. This might arise because prescription against the debtor has been

interrupted or suspended while that against the surety has run its course.

This is clearly inconvenient for creditors but, on the other hand, it seems

harsh to saddle the surety with an extended prescription period if he has

had no notice of it. After all, the remedy lies in the creditors hands: he

should issue summons or seek an admission of liability from the surety in

order to interrupt prescription against him. Thus independent prescrip-

tion of the surety's obligation and the principal debt is inconvenient

rather than unfair to the creditor.

For many centuries (at least since the time of Justinian in the sixth

century AD) some eminent jurists have considered that the surety's

obligation did not prescribe independently of the principal debtor's. Thus

if prescription was interrupted against the debtor it was also interrupted

against the surety. Johannes Voet (46.1.36) himself favoured this

position. And prior to the Prescription Act 68 of 1969 the position was

regulated by statute with s 6(2) of the Prescription Act 18 of 1943

providing that 'interruption [of prescription] as against the principal

debtor shall be deemed an interruption against the surety'. However, the

1969 Act contains no such provision; and the question has to be resolved

by the common law.

The question has been considered several times by the courts. In the

leading case

Rand Bank Ltd v De Jager

(1982 (3) SA 418 (C)) Baker J in a

learned judgment held that Voet 46.1.36 did not state the common law

correctly and that the principal obligation and the surety's obligation did

prescribe independently. (Baker J rejected a line of authority stretching all

the way back to a constitution of the Emperor Justinian enacted in

Constantinople on the Kalends of September AD531. Voet (46.1.36) and

Pothier

(Obligations

par 664) as well as many other jurists had favoured

the alternative view, viz that interruption of prescription against the

debtor also interrupts prescription of the surety's obligation even if

384

(1999) 11 SA Merc LJ 384

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