Duet and Magnum Financial Services CC (In Liquidation) v Koster

• Jurisdiction: South Africa
• Citation: 2010 (1) SA 312 (T)

Duet and Magnum Financial Services CC (In Liquidation) v Koster
2010 (1) SA 312 (T)

2010 (1) SA p312

Citation	2010 (1) SA 312 (T)
Case No	22665/2005
Court	Transvaal Provincial Division
Judge	Preller J
Heard	November 16, 2007
Judgment	February 4, 2007
Counsel	HR Fourie for the plaintiff.; DA Preis SC for the defendant.

Flynote : Sleutelwoorde F

G Prescription — Extinctive prescription — Debt — What constitutes — Caim by liquidator of close corporation for order setting aside unlawful disposition and claim for payment of amount of disposition jointly constituting 'debt' — Prescription Act 68 of 1969, s 10(1).

H Prescription — Extinctive prescription — Period of prescription — When it commences — Claim by liquidator of close corporation for order setting aside unlawful disposition and claim for payment of amount of disposition jointly constituting 'debt' — Prescription of entire debt commencing to run as soon as necessary facts known to plaintiff — Prescription Act 68 of 1969, s 10(1).

Headnote : Kopnota

I Where a liquidator of a close corporation in liquidation has a claim for payment of an unlawful disposition made by the close corporation, the claim for an order setting aside the disposition and the claim for payment jointly constitute a 'debt' as contemplated in ss 10, 11 and 12 of the Prescription Act 68 of 1969 in respect of which the running of prescription commences J as soon as the necessary facts are known to the plaintiff. (At 316A - C.)

2010 (1) SA p313

Cases Considered

Annotations A

Reported cases

Barnard and Lynn NNO v Schoeman and Another 2000 (3) SA 168 (N): not followed

Barnard NO v Bezuidenhout en Andere 2004 (3) SA 274 (T): followed B

Burley Appliances Ltd v Grobbelaar NO and Others 2004 (1) SA 602 (C): followed

Desai NO v Desai and Others 1996 (1) SA 141 (A): referred to

Naidoo and Another v Lane and Another 1997 (2) SA 913 (D): referred to

Nedcor Bank Bpk v Regering van die Republiek van Suid-Afrika 2001 (1) SA 987 (A) ([2001] 1 All SA 107): referred to. C

Statutes Considered

Statutes

The Prescription Act 68 of 1969, ss 10, 10(1), 11 and 12: see Juta's Statutes of South Africa 2008/9 vol 1 at 2-872 and 2-873.

Case Information

Adjudication upon a special plea of prescription. The facts appear D from the judgment of Preller J.

HR Fourie for the plaintiff.

DA Preis SC for the defendant.

Cur adv vult. E

Postea (February 4).

Judgment

Preller J:

The plaintiff, represented by its joint liquidators, sued the F defendant for an order setting aside, in terms of s 26(1)(b), alternatively s 30(1) read with s 66 of the Close Corporations Act 69 of 1984, further alternatively, in terms of s 29(1) of the Insolvency Act 24 of 1936, certain dispositions in the total amount of R459 446,71 and also an order for payment of the said sum.

Defendant raised a special plea of prescription in terms of ss 10, 11(d) G and 12 of the Prescription Act 68 of 1969 in that -

(a)

the disposition had been made, at the latest, in March 2002;

(b)

the plaintiff had been wound up in 2001 and the joint liquidators appointed on 18 July 2001; H

(c)

summons had been served on 12 July 2005, by which time the plaintiff had been aware of the defendant's identity and the facts from which each of the debts arose for a period of more than three years.

By agreement between the parties, the only issue before me was I formulated as follows:

'In the event of the honourable court finding that the plaintiff's claims formulated in the particulars of claim constitute a debt as contemplated in sections 10, 11 and 12 of the Prescription Act 68 of 1969, then the parties agree that such...