Jans v Nedcor Bank Limited

The appellant executed a deed of suretyship on 30 May 1995 in favour of Nedcor Bank Limited, binding herself jointly and severally as surety and co‑principal debtor for the debts of Ryday Construction (Pty) Ltd. Ryday was later placed in liquidation, with the final liquidation and distribution account confirmed on 10 October 2000. The bank lodged a claim against Ryday’s liquidator, which delayed prescription against the principal debtor in terms of s 13(1)(g) of the Prescription Act 68 of 1969. In October 2000 the bank issued summons against the appellant under the suretyship, obtained default judgment, and later sought to enforce it. The appellant applied for rescission, contending that prescription against her as surety had run independently and had been completed before summons was served.

The appeal was dismissed. The application for rescission of the default judgment was refused, and the default judgment in favour of Nedcor Bank Limited against the appellant remained in force. Rand Bank Ltd v De Jager 1982 (3) SA 418 (C) was expressly overruled.

This decision authoritatively settled South African law on the effect of interruption or delay of prescription in relation to sureties. It restored and confirmed the common‑law position that prescription against a surety does not run independently where prescription against the principal debtor is interrupted or delayed. The case provides clarity and certainty in commercial and banking practice and overruled contrary High Court authority.