THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable

Case No 86/02

In the matter between

SHIRLEY  JOYCE  JANS

Appellant

and

NEDCOR BANK LIMITED

Respondent

CORAM

:
VIVIER ADP,   SCOTT,   FARLAM,

MTHIYANE, et  LEWIS JJA
HEARD

:
4 MARCH 2003
DELIVERED
:
24 MARCH 2003

Interruption or delay in the running of prescription in favour of the principal
debtor interrupts or delays the running of prescription in favour of a surety.
Rand Bank Ltd v De Jager 1982(3) SA 418 (C) overruled.

J U D G M E N T

SCOTT JA/…

SCOTT JA:

[1] The question in issue in this appeal is one which has been the subject of
debate for centuries. Does an interruption or delay in the running of
prescription in favour of the principal debtor interrupt or delay the running of
prescription in favour of a surety?
[2] The facts are largely common cause. On 30 May 1995 the appellant
executed a contract of suretyship in terms of which she bound herself jointly
and severally as surety and co-principal debtor in  solidum to the respondent
bank for repayment of all sums of money which Ryday Construction (Pty)
Ltd (‘Ryday’) ‘may now or from time to time hereafter owe or be indebted to
the bank’. Ryday was a construction company of which both the appellant and
her husband were directors. Previously, and in terms of a written agreement
dated 29 August 1994, Ryday had opened a current account with the bank. In
pursuance of that agreement the bank advanced Ryday moneys on overdraft
from time to time. On 4 March 1997 Ryday was provisionally liquidated. On
15 April 1997 the liquidation was made final. On 11 August 1997 the bank
submitted its claim for moneys advanced on overdraft to Ryday’s liquidator.
On 10 October 2000 the liquidator’s final liquidation and distribution account
was confirmed by the Master.
[3] It is convenient at this stage to refer to the Prescription Act 68 of 1969.
Section 13(1) reads:

‘If –
(a)
the creditor is a minor or is insane or is a person under curatorship or is prevented
by superior force including any law or any order of court from interrupting the
running of prescription as contemplated in section 15(1); or
(b)
the debtor is outside the Republic; or
(c)     the creditor and debtor are married to each other; or
(d)    the creditor and debtor are partners and the debt is a debt which arose out of the
partnership relationship; or
(e)
the creditor is a juristic person and the debtor is a member of the
governing body of such juristic person; or
(f)
the debt is the object of a dispute subjected to arbitration; or
(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 (Act No 28 of 1966);
or
(h)
the creditor or the debtor is deceased and an executor of the estate in question has
not yet been appointed; and
(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).’
It was accepted by this Court in Kilroe-Daley v Barclays National Bank Ltd
1984 (4) SA 609 (A) at 621I  that the impediment contemplated in s 13(1)(g)

commences when the creditor’s claim is filed. It ceases to exist once the
Master confirms the final liquidation and distribution account: Leipsig v
Bankorp Ltd 1994 (2) SA 128 (A) at  135I. In terms of s 11 of the Prescription
Act the relevant period of prescription was three years. But for the
impediment, the bank’s claim against Ryday would therefore have prescribed
sometime before 10 October 2000, being the date on which the impediment
ceased to exist. By virtue of the provisions of s 13(1) the bank’s claim against
Ryday would accordingly not have become prescribed until a year had
elapsed after 10 October 2000.
[4] In early October 2000 the bank instituted action against the appellant
for payment of the sum of R746 891,58 together with interest and costs in
terms of the contract of suretyship she had executed on 30 May 1995. Three
other sureties and co-principal debtors were joined as defendants but they
played no role in the subsequent proceedings. The summons was served on
the appellant on 13 October 2000 at her chosen domicilium citandi et
executandi in terms of the deed of suretyship. There was no appearance to
defend and on 12 December 2000 the bank obtained judgment by default
against the appellant.
[5] In August 2001 the appellant launched an application for an order
rescinding the default judgment granted against her on 12 December 2000. In
her supporting affidavit she explained that she and her husband had parted

company sometime in January or February 1996 when she left the dwelling
which had been her chosen domicilium citandi. She said that since then she
had played no part in the affairs of Ryday and had only become aware of the
summons and the default judgment against her on 29 April 2001 when she
received notice from the sheriff that property she owned had been judicially
attached. She denied that she was liable to the bank. She contended that
prescription began to run in her favour no later than on 15 April 1997 when a
final order of liquidation was granted against Ryday and that the running of
prescription in her favour was unaffected by any delay in the running of
prescription in favour of Ryday. Accordingly, so the contention went, the
bank’s claim against her became prescribed in April 2000, some six months
before summons was served on her. The respondent opposed the application.
It contended that the delay in the running of prescription in favour of the
principal debtor served to delay the running of prescription in favour of the
surety and that the appellant had therefore failed to disclose a defence to the
claim.
[6] It should be mentioned that the appellant subsequently amplified her
application by seeking condonation for the delay of some three months
between the time of her becoming aware of the judgment and her application
for its rescission. The respondent initially opposed the granting of such
condonation, but no longer does so.

[7] The matter was heard by Goldstein J in the Witwatersrand Local
Division on 4 February 2002. The learned judge considered himself to be
bound by the full bench decisions of Cronin v Meerholz 1920 TPD 403 and
Union Government v Van der Merwe 1921 TPD 318 and dismissed the
application with costs. At the same time, however, he granted the appellant
leave to appeal to this Court.
[8] The question in issue has arisen in the past mainly in the context of the
service of a summons on, or a judgment against, the principal debtor or, less
frequently, an acknowledgment of debt by the latter. In the present case the
running of prescription was delayed in terms of s 13(1)(g) of the Prescription
Act 1969 and not interrupted in terms of s 14 or s 15. Nonetheless, it is clear
that the same principles must apply to both situations. Indeed, under the
repealed Prescription Act of 1943 the filing of a claim against a company in
liquidation was treated as an interruption.
[9] As previously indicated, whether or not prescription in favour of a
surety should run independently of prescription in favour of the principal
debtor is a question which has occupied the minds of jurists for a long time.
Before attempting to trace the history of the debate it is convenient to set out
briefly the various characteristics of the contract of suretyship on which the
proponents of the two points of view largely rely in order to advance their
respective contentions. Those who argue that the claim against the surety

should prescribe independently of that against the principal debtor point in the
first place to the fact that the claim against the former arises from a contract
which is quite separate and distinct from the contract giving rise to the claim
against the latter, and that both contracts give rise to distinct obligations. This
is undoubtedly so. In the case of the one, the contract is between the creditor
and the principal debtor. In the other it is between the creditor and surety. See
eg Bulsara v Jordan and Co Ltd (Conshu Ltd) 1996 (1) SA 805(A) at 810D-
G. (The liability of the principal debtor may even arise from some cause other
than contract, eg delict.) A contract of suretyship may be concluded at a time
and place which is different from that at which the contract with the principal
debtor was concluded; it may even be concluded without the latter’s
knowledge. The obligation of the surety may also differ in extent;  it may be
for a limited period or a lesser amount. If the benefit of excussion has not
been excluded the surety’s liability will arise later than that of the principal
debtor. However, in most contracts of suretyship, certainly in more modern
times, it is usual for the surety to bind him- or herself as surety and co-
principal debtor.  But this does not mean that the surety becomes a party to
the contract between the creditor and principal debtor. As pointed out by
Trollip JA in Neon and Cold Cathode Illuminations (Pty) Ltd v Ephron 1978
(1) SA 463 (A) at 471C-G the effect of a surety binding himself as a co-
principal debtor is not to render him liable to the creditor in any capacity

other than that of a surety who has renounced the benefits ordinarily available
to a surety against the creditor. But where the surety is bound as a co-
principal debtor he or she will be jointly and severally liable with the
principal debtor and prescription will begin to run in favour of both at the
same time.
[10] On the other hand, those who take the opposing view acknowledge that
the surety’s liability is founded upon a different contract giving rise to a
distinct obligation, but stress that the surety’s liability is accessory  to that of
the principal debtor with the result that if the claim against the principal
debtor becomes prescribed or for some other reason ceases to exist,  the claim
against the surety likewise becomes prescribed or otherwise ceases to exist.
The point is well illustrated in Kilroe-Daley v Barclays National Bank Ltd,
supra.  In that case the surety executed a mortgage bond securing his
obligation in terms of a contract of suretyship. It was held that when the claim
against the principal debtor became prescribed the claim against the surety
likewise became prescribed and the creditor was accordingly precluded from
invoking s 11(a)(i) of the Prescription Act which provided for a period of
prescription of 30 years in respect of a mortgage bond. Those of the opposing
viewpoint point out further that although the obligations of the surety and
principal debtor arise from different contracts, the obligation of the former
merely guarantees performance by the latter; in other words, both obligations

relate to the same performance or debt. They contend that, in these
circumstances, the very nature of suretyship is such that the fortunes of the
surety’s obligation should follow those of  the debtor’s obligation as far as
prescription is concerned.
[11] Against this background I shall attempt to sketch, as briefly as the
circumstances permit, the history of the debate which goes back to the time of
Justinian. The starting point is a decree, or ‘constitution’, of that emperor in
531 AD addressed to John of Cappadocia, but of general application. The
modern citation of the constitution is C8.39(40).4(5). It contains no express
reference to sureties. It provides in effect that if prescription in favour of one
co-debtor, presumably a debtor in solidum, is interrupted, whether by
acknowledgment made to one out of several joint creditors or otherwise, so
that the period of prescription in respect of that debtor is extended, the period
of prescription will be extended in respect of all the debtors to the advantage
of all the creditors. The material portion of the constitution, for present
purposes, reads:
‘. . .  it seems to us to be consistent with the dictates of humanity that, where  prescription
has been interrupted, or acknowledgment of the debt has been made with reference to one
and the same contract, all the parties should be compelled to pay the debt at the same time,
whether there are several debtors, or only one of them, or whether there are several
creditors, or not more than one.

Hence we decree that in every case above mentioned, where part of the debt has been paid
or acknowledged, or the other debtors have been notified in writing that they are liable, the
other creditors shall enjoy the benefit. Therefore they shall be jointly responsible and none
of them will be permitted to profit by the unfairness  of another, as a single contract is
derived from one source or liability, and a debt is incurred by the same act.’
(Scott’s translation. The full text of the constitution is reproduced in Rand
Bank Ltd v De Jager 1982 (3) SA 418 (C) at 421F-422B. I shall refer in
greater detail to this decision later in this judgment.)
[12] It was probably the Glossators who first sought to equate the
relationship between principal debtor and surety with that between co-debtors
in solidum for the purpose of applying C8.39(40).4(5) to sureties so that
interruption of prescription against the principal debtor would interrupt
prescription against the surety. (See the Gloss ad D.17.1.29.6.) Carpzovius
(1595-1666) in his Decisiones Illustres Saxonicae Rerum et Quaestionum
Forensium (Leipzig 1646) reports a decision of the Supreme Court of Appeal
of Saxony – Dec Illust 34 – in which it was held that an interruption of
prescription in respect of the principal debtor did not avail the creditor in so
far as prescription in respect of a surety was concerned. In doing so it rejected
the contention that C8.39(40).4(5) was applicable to sureties. Of significance
in this regard is that it not only rejected the opinion of Heringius  (Tractatus
de Fidejussoribus (1614)) but also the view expressed in the Gloss.

[13] Brunnemann (1608-72), on the other hand, took the view that
C8.39(40).4(5) was to be construed as including the case of sureties; in other
words, although the liability of the surety and the principal debtor arose from
different contracts (and to this extent was different from the liability of co-
debtors in solidum),  an interruption in the running of prescription in favour of
the principal debtor served to interrupt prescription in favour of the surety. In
his Commentarius in Codicem Justinianeum (1663) ad C8.39(40).4(5) he
argued that those who held the contrary view gave too narrow a meaning to
the words of  Justinian’s constitution; he pointed out that while the action of
the creditor against the principal debtor was different from the action against
the surety —
‘. . .  in reality (reipsa) both actions flow from the same origin and source and in effect (in
effectu) they [the principal debtor and the surety] are bound by the same thing and there is
no culpable delay on the part of the creditor’.
In support of his view he relied not only on the opinion of other jurists but
also on a decision of the Court of Brandenburg, from which it would appear
that the latter Court took a different view from the decision of the Saxon
Court.
[14] Voet in his Commentarius ad Pandectas 46.1.36, like Brunnemann,
adopted the view that interruption of prescription in respect of the principal
debtor served to interrupt prescription in respect of the surety. He justifies his
view as follows:

‘If in sooth the making of a demand on one of two joint debtors interrupts prescription in
respect of the other also, when  each of them was bound as a principal debtor, far more
must we say that an obligation against a surety is prolonged by a demand which was made
on the principal debtor. It is more in accord with nature for an accessory to go with its
principal, than for one principal thing to be assessed on another.’ (Gane’s translation)
[15] In addition to C8.39(40).4(5), Voet refers to two passages in the Digest
(D45.1.91.4 and D22.1.24.1) as well as to Vinnius – Selectae Juris
Quaestiones 2.10 and Struvius – Ad Pandectas  46.1 n 47. Surprisingly he
makes no mention of Brunnemann. The passages in the Digest are somewhat
cryptic and not particularly helpful. Neither Vinnius nor Struvius adds
anything of consequence.
[16] Pothier, writing some 50 years after the death of Voet, was similarly of
the view that an interruption of prescription against the principal debtor
interrupted prescription against the surety. In his Obligations at para 664
(Evans’s translation) he acknowledges that the question is a controversial one;
he sets out the two viewpoints and briefly the contentions of the proponents of
each and thereafter gives his answer to those who oppose his view. The
contention which he attributes to ‘Brunnemann ad L Fin Cod de duob reis
(C8.39(40).4(5)) and the doctors cited by him, and Catelan, amongst the
moderns’, shortly stated, is the following. The principle underlying
C8.39(40).4(5) is that if a creditor makes judicial demand against one co-
debtor in solidum  the other co-debtors cannot say that the creditor has not

exercised the claim which he has against them because the claim against co-
debtors in solidum is one and the same; similarly the claim which the creditor
has against the surety is the same as that against the principal debtor and
therefore by enforcing the claim against the principal debtor he is enforcing
his claim against the surety. In summarising the opposing view, Pothier says
‘They say, that there is a great difference between sureties and co-debtors in solido. When
I have sold a thing to several purchasers, who have obliged  themselves in solido for the
payment of the price, the claim against them is one and the same claim having the same
cause, and for which there is only one and the same kind of action, viz the action ex vendito
against each of  them; whence it follows, that in exercising my claim by the judicial
interpellation of any one of them, I exercise it against all the rest. It is otherwise, say they,
with respect to the principal debtor and his sureties; the claim against the principal and that
against his sureties are indeed claims of one and the same things, and, therefore, a real or
fictitious payment by the one discharges the other; but still they are distinct claims, arising
from different contracts, and producing different actions.’
Pothier answers as follows:
‘It may be replied that the engagement of the sureties is a contract purely accessory;
sureties do nothing more thereby than accede to the debt of the principal debtor; the
contract does not, properly speaking, form a new claim, but only gives the creditor new
debtors, who accede to the debt of the principal; the claim which the creditor has against
them is the same as that against the principal. As to the argument that by the Roman law
the action ex stipulatu against the surety is a different action from that against the principal
debtor; I answer that it does not therefore follow that it is founded upon a different claim;

the stipulation, upon which the action ex stipulatu is founded, is not itself the title of the
claim, but rather the corroboration of it, with the accession of the sureties.’
(The paragraph is quoted in full in Rand Bank Ltd v De Jager, supra, at
435B-436B.)
[17] More than a century later the cudgel was taken up for the view opposed
to that of Pothier and his predecessors by Francois Laurent (1810-87), a
Belgian jurist and one time professor at Ghent. Writing after the enactment of
the French Civil Code and in the context of its provisions he argued in his
Principes de Droit Civil Francais  2 ed vol 32 paras 151-153 that Pothier’s
opinion was founded on the premise that the obligation of the surety was the
same as that of the principal debtor, that this was not correct and that
interruption of prescription extended from one person to another only in the
case of solidarity and indivisibility. He observed, too, that art 2250 of the
Code recognised that interruption of prescription as against the principal
debtor interrupted prescription as against the surety, but not the converse.
This, he argued, indicated the exceptional nature of the article and that it was
contrary to principle. (A translation of all three paragraphs appears in Rand
Bank Ltd v De Jager, supra, at 437E-439B.)
[18] In the event Laurent, of course, was too late. Not only the French Civil
Code, but also the Belgian Code and the Netherlands Code (in art 2021)
provided that interruption against the principal debtor interrupted prescription
against the surety. (The provisions of art 2021 of the old Netherlands Code

are not repeated in the new code, but see Book 7 art 851.1 and art 853.)  In
South Africa C8.39(40).4(5) was similarly recognised as applying to sureties
in the Transvaal Act 26 of 1908. Section 12(3) provides:
‘Interruption as against the principal debtor shall be deemed an interruption as against the
surety.’
Section 14(1) dealt with co-debtors. It reads:
‘Prescription shall not be interrupted or affected in respect of one joint debtor by reason of
any fact which would interrupt or affect prescription in respect of any other joint debtor
except in the case of debtors in solidum.’
Section 12(3) of the Transvaal Act was repeated in identical terms in s 6(2) of
the first post-union statute on the subject, the Prescription Act 18 of 1943.
Section 14(1) of the Transvaal Act was repeated in s 8 of the 1943 Act with
certain minor changes.
[19] The first case in South Africa in which the issue arose was Cronin v
Meerholz 1920 TPD 403. The plaintiff took judgment against the principal
debtor and thereafter sued the surety. At the time there was no prescription in
respect of a judgment and what had to be decided was whether the claim
against the surety had similarly become ‘imprescribable’.  Both Wessels JP
and Mason J held that it had. To obtain the answer Wessels JP found it
necessary (at 406) to:
‘. . . consider whether, according to the fundamental principles of our law, a contract of
suretyship must be considered as independent of the principal obligation or whether it is to

be regarded as so bound up with the principal obligation that the suretyship contract is to
be regarded as an accessory obligation’.
In concluding that the latter was correct the learned judge relied on Voet
46.1.36 (quoted in para 14 above) and said the following (at 406-407):
‘By our common law the surety undertakes to pay the debt of the principal debtor so long
as that debt exists in law and has not in fact been paid by the debtor. If, therefore, the debt
is extinguished by prescription or the remedy is barred by a limitation of actions the surety
is either discharged or the remedy against him is also barred. But if the debt is kept alive
by judgment, so that neither prescription nor limitation will run, the surety’s obligation by
the common law continues to exist, because his obligation and that of the principal debtor
is one and the same.’
The learned judge did not, of course, intend to convey in the final sentence of
this passage that the obligations of the surety and principal debtor were not
distinct. From the context it is clear that what was intended was that both
obligations relate to the same debt or performance.
[20] The following year Wessels JP adopted the same approach in Union
Government v Van der Merwe 1921 TPD 318. In the course of his judgment,
with which De Waal J concurred, the judge president said (at 321):
‘The legal scope of the surety’s contract is identical with that of the principal debtor –
accessorium sui principalis naturam sequitur. The surety undertakes the same obligation
as the debtor, and undertakes to perform this same obligation so soon as the debtor, when
called upon, fails to perform it. Troplong, Cautionnement, 46. It is true there are two
contracts, the one between the creditor and the debtor and the other between the creditor

and the surety. But the contract between the creditor and the surety is not an independent
contract with an obligation of its own but  an accessory contract with the very same
obligation that exists between the principal debtor and the creditor.’
[21] In view of s 6(2) of the 1943 Prescription Act it is not surprising that
the issue did not arise again until after the enactment of the Prescription Act
of 1969. The provisions of s 6(2) of the repealed Act were not re-enacted in
the 1969 Act. Interestingly enough, Professor J C De Wet, who was largely
responsible for the 1969 Act, described the section as ‘onsekerheidstigtend en
oortollig’. (See ‘Verjaring’ (1967) in: J J Gauntlett (ed) Opuscula Miscellanea
(1979.)) In the event, the non re-enactment of its provisions opened the way
for the revival of the debate which had continued for centuries. The decision
in Cronin v Meerholz, supra, was accepted as correctly reflecting the common
law by Caney in The Law of Suretyship 2ed (1970) at 214, but not by De Wet.
The thrust of the latter’s criticism, however, is directed not so much at the
distinction between the liability of a surety and that of a co-debtor in solidum
but at C8.39(40).4(5) itself which he categorises as ill-considered and
unpersuasive (De Wet and Van Wyk Kontraktereg en Handelsreg 5ed at 138
and 399). He points out that it failed to recognise that prescription does not
necessarily begin to run in favour of all co-debtors at the same time since the
liability of one may be pure, another sub die and a third, sub condicione. In
this respect, therefore, the  position of co-debtors is little different from that of
sureties; if a surety has not renounced the benefits of excussion etc,

prescription will begin to run in favour of the principal debtor before
prescription commences running in favour of the surety. De Wet argues that
as prescription is a personal, not a general defence, there is no reason why
interruption of prescription in respect of one co-debtor should interrupt
prescription in respect of another co-debtor. (De Wet and Van Wyk op cit at
137-138;  ‘Verjaring’ op cit paras 102-103.) The solution which he in effect
advances is that C8.39(40).4(5) should be rejected so that interruption of
prescription against one co-debtor in solidum should not interrupt prescription
against other co-debtors. The same would apply a fortiori to principal debtors
and sureties. (See also C F Forsyth ‘Suretyship and Prescription : A New
Direction’ (1984) 101 SALJ 237 at 246-247.) With regard, in particular, to the
reasoning in Cronin v Meerholz, supra, De Wet points out that while the
accessory nature of the surety’s obligation has the effect that prescription of
the claim against the principal debtor results in prescription of the claim
against the surety, it does not necessarily follow that interruption of
prescription against the principal debtor interrupts prescription against the
surety.  He says that to accept that it does, is to put the cart before the horse.
(De Wet and Van Wyk op cit at 398-399 n 53.)  The metaphor is, of course,
not entirely accurate. If completion of the principal debtor’s period of
prescription results in completion of the surety’s period of prescription, even
if prescription in favour of the latter began to run at a later date than in the

case of the former, it is neither a big nor an illogical step to accept that an
interruption of prescription against the principal debtor has the effect of
interrupting prescription against the surety. But in any event, in arriving at the
conclusion it did, the Court relied not only on the accessory nature of the
surety’s obligation but also on its commonality with the principal debtor’s
obligation.
[22] Some 60 years after the decision in Cronin v Meerholz it was held in
Rand Bank Ltd v De Jager, supra, to have been incorrect. The facts in Rand
Bank were relatively straight forward. The Bank sued for payment of money
presumably lent and advanced on overdraft and took judgment against the
principal debtor and a surety. Neither was able to pay the debt. Subsequently
and more than three years after judgment when prescription was presumed, at
the latest, to have commenced to run, the bank sued the other surety who had
bound himself as surety and co-principal debtor in solidum. The latter raised
the defence of prescription. The magistrate upheld the defence solely on the
strength of the opinion of De Wet, as expressed in De Wet and Yeats
Kontraktereg en Handelsreg 4 ed. The appeal to the Cape Provincial Division
was dismissed. In the course of a long and extremely industrious judgment
Baker J, with whom Lategan J concurred, referred to a vast array of
authorities, including many which were silent on the issue, and ultimately
came to the conclusion that the plea of prescription should be upheld. The

learned judge placed considerable store on the views of  De Wet and clearly
agreed with the latter’s criticism of C8.39(40).4(5). (See eg at 434 F-H.)
Nonetheless, the ratio of the judgment was that C8.39(40).4(5) applied to co-
debtors only and that Voet incorrectly extended its application to sureties.
[23] The judgment had a mixed reception. K M Kritzinger, ‘Prescription of
Suretyship for a Judgment Debt’ (1983) 100 SALJ 35, pointed out that the
contract of suretyship in the Rand Bank case was couched in terms wide
enough to include a judgment which would have given rise to a new cause of
action and that the cause of action actually relied upon was indeed the
judgment. He argued that the period of prescription both in respect of the
principal debtor and the surety was 30 years and that the claim against the
surety had accordingly not prescribed. (See generally E A Gani (Pty) Ltd v
Francis 1984 (1) SA 462 (T);  Bulsara v Jordan and Co Ltd (Conshu Ltd),
supra). C F Forsyth, ‘Suretyship and Prescription : A New Direction’ (1984)
101 SALJ 237, doubted whether on the facts of the Rand Bank case the period
of prescription for the claim against the surety would have been 30 years.
However, elsewhere in the article, which was generally favourable to the
judgment, the learned author seemed to accept that ‘it is implicit in the
surety’s agreeing to undertake his obligation that he will be bound for the
laid-down prescription period of the principal debt’ (at 249). The Rand Bank
case was considered to have been correctly decided in subsequent editions of

Caney’s The Law of Suretyship, by Forsyth and Pretorius (see also C F
Forsyth ‘Suretyship’ in Zimmermann and Visser (eds) Southern Cross at 428-
430; C F Forsyth ‘Prescription, Suretyship and the Unwelcome Revival of
Correality’ (1999) 11 SA Merc LJ 384) but sharply criticised by Styrian,
‘Verjaring van Borgverpligtinge Redux’ 2001 (64) THRHR 316 and its
correctness doubted in LAWSA First Reissue vol 26 para 217. It was
followed in Bank of the Orange Free State v Cloete 1985 (2) SA 859 (E),
Absa Bank Bpk v De Villiers 1998 (3) SA 920 (O) and Nedcor Bank Ltd v
Shapiro and Others 2002 JDR 766 (W). It was also followed, but subject to
qualification, in Commissioner for Customs and Excise v Standard General
Insurance Company Ltd [1998] 4 All SA 46 (W). To the extent, however, that
Flemming DJP in the latter case sought to rely on the distinction between
‘solidarity’ and ‘correality’ it is worthy of note that Zimmermann, The Law of
Obligations : Roman Foundations of the Civilian Tradition (1992), at 129
suggests that such theorizing in respect of these notions should be avoided as
being an ‘ahistorical enterprise’. On the other hand, the Rand Bank case was
disapproved and not followed in Jordan and Co Ltd v Bulsara 1992 (4) SA
457 (E) and Nedcor Bank Ltd v Sutherland 1998 (4) SA 32 (N). In Leipsig v
Bankorp Ltd, supra, this Court assumed without reference to the Rand Bank
case that the filing of a claim by the creditor against the principal debtor’s
insolvent estate would serve to delay the completion of prescription in respect

of the claim against the surety but in the event the claim against the principal
debtor was found to have prescribed. The same assumption was made in
Kilroe-Daley v Barclays National Bank Ltd, supra, but in that case the Court
expressly cautioned (at 628D-E) that the judgment was to be construed as
neither agreeing nor disagreeing with the decision in Rand Bank.
[24] Baker J summarised his conclusions (at 454G to 455H). He said in
effect that Voet, relying on dubious authority, was incorrect to have applied
C8.39(40).4(5) to sureties as the text clearly referred to co-debtors in solidum
and not to sureties. He said that right from the beginning there was a dispute
about this, that to his mind the argument of Pothier was ‘unconvincing’ while
that of Laurent was ‘logical and sound’, and added that C8.39(40).4(5) was an
‘ill-considered piece of legislation’ which demonstrated a failure on the part
of Justinian to appreciate that joint debtors in solidum are liable not by virtue
of a single obligation but by virtue of a series of obligations directed to a
single performance.’
[25] It is convenient to begin with the reference to Pothier and Laurent. As
previously indicated, the gravamen of Laurent’s complaint was that Pothier’s
opinion was founded on the premise that the obligation of the surety was the
same as that of the principal debtor. But it is clear from the passages from
Pothier’s Obligations quoted above that Pothier was fully aware that the
respective obligations of the surety and the principal debtor arose from

different contracts and in that respect were distinct. His reference to the
creditor having the same claim against the surety as against the principal
debtor is clearly a reference to the content of the claim, not to the vinculum
juris itself. Brunnemann, who was referred to by Pothier, similarly
appreciated that the actions which the creditor had against the principal debtor
and against the surety were based on different contracts, each of which would
give rise to correspondingly different obligations. His point was that having
regard to what in essence is a commonality between the creditor’s respective
actions (and corresponding obligations) both as to origin and content, they
should be treated as one for the purpose of prescription. He argued that to
make a distinction between the two actions would involve reasoning which
was overly subtle (subtilis ratio). Wessels JP, too, in Cronin v Meerholz,
supra, refers to the obligations of the surety being ‘the same’ as that of the
principal debtor. It is clear from the context that the learned judge was
referring to the content of the respective obligations, ie to the debt or
performance to which both relate. Baker J, in criticising Wessels JP, points
out that the liability of the surety arises from a contract which is totally
separate from that between the principal debtor and creditor (at 447H-448B).
But Wessels JP, like Brunnemann and Pothier, obviously appreciated this. He
expressly said as much in Union Government v Van der Merwe, supra, at 321
(quoted in para 20 above). The emphasis on the distinction between the

obligations of the surety and principal debtor as an argument against the
extension of C8.39(40).4(5) to sureties is in any event to some extent
misplaced. The obligation of one co-debtor in solidum may differ from the
obligation of another. As De Wet  (De Wet and Van Wyk, supra, at 138)
points out, the obligation of one may be pure, that of another sub die and that
of a third sub condicione. Indeed, Baker J in his summary (at 455B-C) makes
the point that co-debtors in solidum are liable to the creditor by virtue of ‘a
series of obligations directed to a single performance’. In these circumstances,
the distinction between the relationship between the principal debtor and the
surety on the one hand, and between co-debtors in solidum on the other, is
less compelling than the antagonists of Pothier’s view would contend it to be.
This is particularly so when the surety has renounced the benefits ordinarily
available to a surety, which today is an almost invariable practice.
[26] It is true, as Baker J observes (at 444D-H), there is a clear distinction
between the obligation of a co-debtor in solidum and the accessorial
obligation of a surety. But once again, this is hardly something which would
have escaped the attention of those who favoured the extension of
C8.39(40).4(5) to sureties. It is also true that the authorities to which Voet
refers are not particularly compelling. But his understanding of the law
reflects a viewpoint that went back as far as the Gloss and enjoyed  the

support of many before him, including the likes of Heringius and
Brunnemann.
[27] It is not clear why Baker J in summarising his conclusions (under the
heading of ‘Conclusions’) found it necessary to criticise C8.39(40).4(5), as
ultimately his decision appears to have been based on the conclusion that its
extension to include sureties was incorrect. In criticising ‘this ill-considered
piece of legislation’ he was of course echoing the view of De Wet. But
whether one likes it or not the legislation was part of the Roman Law which
in turn became part of the Roman Dutch Law accepted in South Africa. It
cannot be dismissed simply because it does not fit into a particular perception
of the law as a logical edifice.
[28] Before turning to the further point raised by Baker J which relates to
what he says is the unfairness resulting from the approach adopted by Voet, it
is appropriate at this stage to comment on certain aspects of what has already
been said. Voet is high authority in South Africa. The same may be said of
Pothier and Brunnemann. Although opinion on the issue is divided, and has
been for centuries, the weight of authority appears to be on the side of Voet.
No Roman Dutch lawyer contends for the opposing view. Moreover, Voet’s
view has generally prevailed. It was incorporated into the codes of the
Netherlands, France, Belgium and other European countries and was accepted
in South Africa until the Rand Bank case in 1982. There are undoubtedly

significant differences between the relationship that exists between principal
debtor and surety on the one hand and that between co-debtors in solidum on
the other. It is also true that there is some inconsistency in applying
Justinian’s constitution to sureties to the limited extent that interruption of
prescription against the principal debtor interrupts prescription against the
surety but not applying it to the converse situation. It was probably this that
Baker J had in mind when he categorised Pothier’s view as ‘unconvincing’
and that of Laurent as ‘logical and sound’. But ultimately the differences, in
my view, are not so profound as to have precluded those jurists seeking in the
past to develop the law from extending the principle embodied in
C8.39(40).4(5) to sureties to the extent referred to. Once Justinian’s
enactment is accepted to be the law, as it must, I do not  think that the
extension involves a step in terms of legal theory which is so far-reaching as
to justify rejecting the view of Voet, particularly in the absence of other
Roman Dutch authority, and in effect putting the clock back after so many
years.  The position, of course, may well be otherwise if interruption or delay
in the running of prescription in favour of a surety in accordance with the
principle embodied in C8.39(40).4(5) were to cause undue hardship or
operate in a manner contrary to social utility. This is the question to which I
now turn.

[29] The unfairness which Baker J refers to may arise, he says, in the
following circumstances if Voet’s approach is adopted. A surety who
renounces the benefit of excussion  and who guarantees a debt which would
ordinarily prescribe after three years, could, without his or her knowledge, be
saddled with 30 years of jeopardy if the creditor were to take judgment
against the principal debtor within the three-year period without notice to the
surety. This was said to be ‘manifestly unfair’ (at 455E) and to ‘go against the
grain’ (at 421E). In passing, it should be observed that in similar
circumstances a surety who has not renounced the benefit of excussion may
notionally end up in virtually the same situation because prescription would
ordinarily begin to run against the surety only upon excussion of the principal
debtor. However, the point remains that if prescription running in favour of
the surety is interrupted or delayed without the latter’s knowledge, he or she
may well be unfairly prejudiced, particularly if the validity of the suretyship
or the creditor’s claim against the principal debtor is contested. A surety who
believes a claim has prescribed may lose touch with potential witnesses, allow
relevant documents to be lost or destroyed, or generally act in a manner
prejudicial to his or her best interests.
[30] By its very nature a contract of suretyship is burdensome. The surety
undertakes responsibility for the fulfilment of another’s obligation. No doubt
for this reason the law affords protection to a surety in a number of different

ways. At common law, for example, a surety will be released if the creditor
does something in his dealings with the principal debtor which has the effect
of prejudicing the surety (Caney’s The Law of Suretyship 5 ed at 205). In
order to be valid, contracts of suretyship must now also be embodied in a
written document signed by or on behalf of the surety (s 6 of Act 50 of 1956).
But a balance must be struck. Sureties do not assume the obligations of others
against their wills, but with their free consent. Once having done so they
cannot expect to be entitled simply to disabuse their minds of the fortunes of
the principal debtor’s liability and then require the law to protect them against
their ignorance. If prescription in favour of the principal debtor is delayed or
interrupted without their knowledge, they generally have themselves to
blame. The example given by Baker J postulates a surety whose interest in the
debt is no greater than that of a friend of the principal debtor. But today that is
an infrequent occurrence. The typical surety in modern society is one who
binds him- or herself as co-principal debtor and guarantees the debts of a
company or close corporation which has little in the way of share capital or
assets but is dependent on credit in order to conduct its business. More often
than not the business is that of the surety or a spouse who for various reasons
chooses to conduct it through the medium of a company or close corporation
with limited liability. A creditor will ordinarily refuse to afford credit to such
a legal persona in the absence of a personal suretyship and few businesses can

operate successfully without credit. The very existence of the debt is therefore
dependent upon the existence of the suretyship while the object and function
of the latter is, of course, to ensure proper payment of the former. To permit
the claim against the surety in these circumstances to prescribe before the
claim against the principal debtor, in the words of Wessels JP in Union
Government v Van der Merwe, supra, at 320, would be ‘almost subversive of
the whole contract of suretyship’. Indeed, in the type of situation sketched
above it is frequently the surety himself who brings about, or at least
participates in, the interruption or delay of prescription against the principal
debtor, eg by acknowledging liability or accepting service of judicial  process
on behalf of the principal debtor, or by submitting a dispute to arbitration, or
by initiating proceedings to have the principal debtor placed in liquidation.
The acceptance of Voet’s view would certainly not result in unfairness to a
surety having a commercial interest in the principal debtor’s liability. But
even if the surety is a disinterested party, I have difficulty in appreciating the
unfairness complained of. Admittedly the period of prescription may be
extended by reason of circumstances which relate solely to the claim against
the principal debtor, but that is not an unreasonable or illogical consequence
of assuming responsibility for the fulfilment of another’s obligation. Provided
only that the surety exercises some vigilance in relation to the fortunes of the
claim against the principal debtor, there will be no prejudice.

[31] Those opposed to Voet’s view contend that where the surety is also
bound as co-principal debtor there is nothing to prevent the creditor from
instituting action against the surety within the ordinary period of prescription;
in other words, there is no reason why a delay or interruption of prescription
in respect of the principal debtor should be visited on the surety. I do not
agree. The linking of the surety’s period of prescription to that of the principal
debtor, quite apart from considerations of  uniformity and convenience as far
as the creditor is concerned, will in many instances serve the interests of the
surety as well. One would imagine that even when the surety has waived the
benefit of excussion he or she would welcome the creditor’s first excussing
the principal debtor before looking to the surety for the balance of the claim.
But if prescription in favour of the surety is not to be interrupted by the
institution of proceedings against the principal debtor, the creditor is likely to
be compelled to sue the surety jointly with the principal debtor or at some
stage before excussion of the latter. As an alternative, the creditor may be
compelled to commence proceedings against the surety merely in order to
prevent the claim prescribing while he or she litigates against, or attempts to
recover payment from, the principal debtor. Such a step serves little purpose
other than to increase the costs of recovering the debt. Similar situations may
arise if the surety is unaffected by a delay in the running of prescription in
favour of the principal debtor. If the principal debtor is liquidated, instead of

filing a claim against the liquidator and recovering first what may possibly
prove to be a substantial dividend and then looking to the surety for the
balance, the creditor may be compelled to sue the surety first, leaving it to the
latter to proceed against the liquidator. The alternative would be to institute
proceedings against the surety and allow the matter to remain dormant, if
possible, pending confirmation of the liquidator’s account which, as I have
said, merely serves to increase the costs. The same would be the case where
the principal debtor dies, or is sequestrated (see s 13(1)(g) quoted in para 3
above). If a disputed claim against the principal debtor is subjected to
arbitration (see s 13(1)(f)) the creditor may be compelled to institute action
against the surety to interrupt prescription. If the matter were resolved by
arbitration the action against the surety would once again have been a
needless exercise resulting in wasted costs. Yet another example of an
anomalous situation that may arise is the case of debts between spouses. The
effect of s 13(1)(c) is that prescription in such a case is delayed during the
subsistence of the marriage. But the creditor spouse would have to sue the
surety within the ordinary period of prescription. The surety, in turn, would
have to sue the debtor spouse timeously,  regardless of whether the marriage
still subsisted and, if it did, the very object of s 13(1)(c) would be
undermined. (See Styrian, supra, at 319.)

[32] To sum up, I am unpersuaded that the acceptance of Voet’s view is
unfair to sureties. On the contrary, it leads to a result which is both convenient
and equitable, particularly when considered against the backdrop of the
commercial realities of our modern society. In the circumstances, I can see no
justification for departing from it. In my view therefore the position in the
South African law is that an interruption or delay in the running of
prescription in favour of the principal debtor interrupts or delays the running
of prescription in favour of the surety. If, of course, prescription in respect of
the claim against the surety has not yet commenced to run, any interruption or
delay relating to the claim against the principal debtor will not affect the
position of the surety, but in the present case, of course, prescription began to
run in respect of both the principal debtor and the surety at the same time.
[33] It follows that in my view Rand Bank Ltd  v De Jager was wrongly
decided.
[34] The appeal is dismissed with costs.

D G  SCOTT

JUDGE OF APPEAL
Concur:

VIVIER        ADP
FARLAM   JA
MTHIYANE JA
LEWIS
JA