Botha v Standard Bank of South Africa Ltd

The appellant, Ms Antoinette Botha, bound herself as surety and co‑principal debtor for her husband’s home loan indebtedness to Standard Bank, which was secured by registered mortgage bonds over his immovable property. Her husband’s estate was sequestrated in 2011. The bank proved its claim in the insolvent estate, the bonded property was sold to a third party, and the mortgage bonds were cancelled. After dividends were paid, a shortfall of approximately R1.28 million remained. In 2016 the bank sued the appellant as surety for the shortfall. She raised a plea of prescription, contending that once the bonds were cancelled the debt was no longer secured and therefore prescribed after three years under s 11(d) of the Prescription Act 68 of 1969, rather than 30 years under s 11(a)(i).

The appeal was dismissed with costs, including the costs of two counsel.

The judgment reaffirms and clarifies the long‑standing principle from Oliff v Minnie that cancellation of a mortgage bond after a debt has become due does not affect the 30‑year prescription period. It limits the scope of Investec Bank v Erf 436 Elandspoort and provides certainty on prescription in mortgage shortfall claims, particularly in insolvency and suretyship contexts.