RECTIFICATION AND CONCURSUS CREDITORUM Nedbank Limited v Chance 2008 4 SA 209 (D); 2008 2 All SA 367 (D)

Abstract

In Nedbank Limited v Chance (2008 4 SA 209 (D); 2008 2 All SA 367 (D)), the court refused a claim for rectification of a contract, although it was common cause that it did not reflect the actual agreement between the parties, because the debtor had been declared insolvent and a concursus creditorum had been established. The result was that the insolvent debtor’s sureties, its erstwhile directors, managed to evade liability to the creditor for an amount in excess of R2.8 million. Given that the principles concerning a concursus creditorum, as well as those regarding rectification, have equity as their purpose, this highly prejudicial outcome for the creditor is most unsatisfactory and the decision merits closer scrutiny.