THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable

Case No: 37/2015

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object of claim filed against company in liquidation – claim withdrawn after ‘admitted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 They now contend that if a claim is withdrawn before the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