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case no: 582/97
In the matter
between
ASSOCIATED PAINT & CHEMICAL INDUSTRIES (PTY)
LTD t/a ALBESTRA PAINT AND
LACQUERS Appellant
and
ADRIAAN
SMIT Respondent
Coram:
GROSSKOPF, SCHUTZ and PLEWMAN JJA
Heard: 10 March
2000
Delivered: 28 March 2000
Amendment of claim - Prescription - Interruption -
s 15(1) of
Prescription Act 68 of 1969
J U D G M E N T
F H GROSSKOPF JA:
[1] In April 1996 A P
& C I (WYNBERG) (PTY) LTD t/a ALBESTRA PAINTS (“the plaintiff”)
instituted an action against
the respondent (“the defendant”) in the
Orange Free State Provincial Division. The plaintiff issued a simple summons
claiming payment of the sum of R190 462,43
“being in respect of goods sold and delivered by plaintiff to defendant at the latter’s special instance and request during May-December 1993, which amount is now due, owing and payable by defendant to plaintiff”.
[2] The plaintiff applied for
summary judgment but the defendant was granted leave to defend. The plaintiff
thereupon filed
a declaration in which the parties were cited in the heading as
before. However, in paragraph 1 of the declaration the “plaintiff”
was now alleged to be ASSOCIATED PAINT AND CHEMICAL INDUSTRIES (PTY) LTD t/a
ALBESTRA PAINTS (“the proposed new plaintiff”),
and no longer A P
& C I (WYNBERG) (PTY) LTD t/a ALBESTRA PAINTS, as described in the summons.
It is common cause that the plaintiff
and the proposed new plaintiff were both
registered companies and therefore separate legal entities. The plaintiff
however failed
to apply for an amendment to substitute the proposed new
plaintiff for the plaintiff in the summons.
[3] The declaration
departs from the summons in another respect as well. Whereas the summons sets
out that the goods were sold
and delivered to the defendant the declaration
alleges that the goods were sold and delivered to Danre, a partnership between
the
defendant and one van Rensburg. There has been no application to amend the
summons in order to bring it in line with the declaration
in this
respect.
[4] Despite these conflicting allegations in the summons
on the one hand and the declaration on the other, the defendant did
not deem it
necessary to apply to court to set it aside as an irregularity in terms of Rule
30(1). The defendant simply proceeded
to file a plea in which he admitted
“that the plaintiff is ASSOCIATED PAINT AND CHEMICAL INDUSTRIES (PTY) LTD”
As a result of this admission every
reference to “the plaintiff” in the plea should therefore be seen as
a reference to
the proposed new plaintiff and not to the plaintiff as described
in the summons.
[5] The plea starts off with a tactical denial of all
the relevant allegations in the declaration, but then proceeds in the
alternative
to set out that the proposed new plaintiff and the defendant entered
into an oral agreement in terms whereof the proposed new plaintiff
sold and
delivered paint products to a business called Danre on certain terms and
conditions. It is also alleged in the plea that
the defendant made certain
payments to the proposed new plaintiff and that Danre became entitled to
substantial credits and discounts
on account of further oral agreements between
the parties. The plea concludes with an admission that the defendant owes the
proposed
new plaintiff a certain sum of money, but with a prayer that judgment
be stayed pending adjudication of the defendant’s conditional
counterclaim
for damages.
[6] The defendant is of course bound by his formal
admissions (Water Renovation (Pty) Ltd v Gold Fields of SA Ltd 1994(2) SA
588(A) at 605H-I).
Counsel for the plaintiff placed great reliance upon the
defendant’s admission relating to the proposed new plaintiff, but this
admission, binding as it may be, did not bring about an automatic substitution
of one plaintiff for another.
[7] It was only when the matter was
ripe for hearing that it dawned upon the plaintiff that the summons and the
heading of all
the pleadings still reflected the company A P & C I (WYNBERG)
(PTY) LTD t/a ALBESTRA PAINTS as the plaintiff. In July 1997,
and in a document
wrongly described as a “Notice of Amendment in terms of Rule 28(5)”,
the plaintiff gave the defendant
notice of its intention to amend the summons,
declaration and subsequent pleadings
“by the deletion of its name wherever same appears in the citation and body of the pleadings and the substitution therefor of the following:
‘ASSOCIATED PAINTS AND
CHEMICAL INDUSTRIES (PTY) LIMITED t.a. ALBESTRA PAINTS AND LACQUERS.’
”
[8] The defendant filed a notice of objection to the proposed
amendment whereupon the plaintiff applied for a further amendment
by deleting
the word “Wynberg” from the plaintiff’s name and by
substituting the words “Albestra Paints and
Lacquers” for
“Albestra Paint” wherever they appear in the pleadings as part of
the plaintiff’s name. If
this amendment had been granted the name of the
plaintiff would have read “A P & C I (Pty) Ltd t/a Albestra Paints and
Lacquers”, which on the information before us would in any event have been
a misnomer.
[9] The defendant opposed the proposed amendment on the
ground that if it were granted he would be deprived of his defence that
the debt
had become prescribed. (Trans-African Insurance Co Ltd v Maluleka 1956
(2) SA 273 (A) at 279 A-C; Miller v H.L. Shippel & Co (Pty) Ltd 1969
(3) SA 447 (T) at 453 F-454 A; Dumasi v Commisioner, Venda Police 1990
(1) SA 1068 (V) at 1071 B-E.) By raising the question of prescription in his
opposing affidavit the defendant in my view complied
with the provisions of s
17(2) of the Prescription Act 68 of 1969 (“the 1969
Act”).
[10] The application to amend was refused by the court
a quo. It also refused leave to appeal. The plaintiff then
applied to the Chief Justice for leave to appeal. Notwithstanding the dismissal
of the application to amend the plaintiff brought its application to the Chief
Justice in the name of the proposed new plaintiff
as if there had in fact been
a substitution of plaintiffs. Once leave to appeal was granted the plaintiff
prosecuted the appeal
in the name of the proposed new plaintiff, an entity who
is not in effect a party to these proceedings. Defendant’s counsel
submitted that the appeal is not properly before us, but I do not propose to
dismiss the appeal on such a highly technical ground.
[11] Counsel
for the plaintiff submitted that the amendment sought was really only to correct
a misdescription of the plaintiff
but in my judgement this is not a case of mere
misnomer. The effect of the amendment would be to introduce a new plaintiff.
(L & G Cantamessa v Reef Plumbers, L & G Cantamessa (Pty) Ltd v Reef
Plumbers 1935 TPD 56 at 60.) On this ground alone the present matter can be
distinguished from the case of Mutsi v Santam Versekeringsmaatskappy Bpk en
’n Ander 1963(3) SA 11 (O) on which counsel for the plaintiff relied.
(Cf Greef v Janet en ’n Ander 1986(1) SA 647 (T) at 654 A-F.)
Prescription in any event anticipated the amendment, as will be explained
later.
[12] The 1969 Act makes provision for the extinction of a
debt by prescription, whereas the previous Prescription Act, 18 of 1943
(“the 1943 Act”) rendered a right unenforceable by the lapse
of time The change in the 1969 Act from prescription of actions to
prescription of debts does not however
affect the principle that a prescribed
debt cannot support a claim. (Sentrachem Ltd v Prinsloo 1997(2) SA 1(A)
at 15 H).
[13] As a general rule a plaintiff is not precluded by
prescription from amending his claim, provided the debt which is claimed
in the
amendment is the same or substantially the same debt as originally claimed, and
provided of course that prescription of the
debt originally claimed has been
duly interrupted. See Sentrachem Ltd v Prinsloo, supra, at 15 A-16 D, and
more particularly 15 J-16 D where Eksteen J A held as follows:
“Die eintlike toets is om te bepaal of die eiser nog steeds dieselfde, of wesenlik dieselfde skuld probeer afdwing. Die skuld of vorderingsreg moet minstens uit die oorspronklike dagvaarding kenbaar wees, sodat ’n daaropvolgende wysiging eintlik sou neerkom op die opklaring van ’n gebrekkige of onvolkome pleitstuk waarin die vorderingsreg, waarop daar deurgaans gesteun is, uiteengesit word. (Churchill v Standard General Insurance Co Ltd 1977 (1) SA 506 (A) op 517 B-C; Maluleka se saak supra op 279 C; Mokoena v SA Eagle Insurance Co Ltd 1982 (1) SA 780 (O) en Frol Holdings (Pty) Ltd v Sword Contractors CC 1996(3) SA 1016 (O).) So ’n wysiging sal uiteraard nie ’n ander vorderingsreg naas die oorspronklike kan inbring nie, of ’n vorderingsreg wat in die oorspronklike dagvaarding prematuur of voorbarig was, te red nie, of om ’n nuwe party tot die geding te voeg nie. (Vergelyk Churchill se saak supra; Imprefed (Pty) Ltd v National Transport Commission 1990 (3) SA 324 (T); Neon and Cold Cathode Illuminations (Pty) Ltd v Ephron 1978 (1) SA 463 (A) en Park Finance Corporation (Pty) Ltd v Van Niekerk 1956 (1) SA 669 (T).)”
(Emphasis
added.)
(See further Mazibuko v Singer 1979(3) SA 258 (W) at
265D-266F; Standard Bank of South Africa Ltd v Oneanate Investments (Pty) Ltd
(in liquidation) 1998(1) SA 811 (SCA) at 826J-827D; Drennan Maud &
Partners v Pennington Town Board 1998(3) SA 200 (SCA) at 212
E-I.)
[14] In Park Finance Corporation (Pty) Ltd v Van
Niekerk 1956 (1) SA 669 (T), the last case referred to in the above
quotation, Ramsbottom J refused an amendment in circumstances similar to
those in the present case. The learned judge there held that the service of
the
summons did not interrupt prescription in respect of an amended claim which
was a “different right” arising out of a
contract between the
defendant and a different party. The plaintiff company in that case sued the
defendant on a written contract.
When the written contract was subsequently
produced it appeared that not the plaintiff company, but a firm, Park Finance
Corporation,
had in fact concluded the contract with the defendant before the
plaintiff company was incorporated. The defendant admitted that
he had
contracted with the firm but denied having done so with the plaintiff company.
The plaintiff applied to amend its claim
by alleging that the contract had
actually been concluded between the firm and the defendant and that the firm had
ceded its rights
to the plaintiff prior to the institution of the action. By
then the amended claim would have been extinguished by prescription
unless the
running of prescription had been interrupted. Ramsbottom J refused the
amendment on the ground that prescription had not been interrupted. The
learned judge concluded at 674 D-E:
“In my opinion the right which the plaintiff now wishes to enforce is a right arising out of a contract between different parties and is a different right from that which the action was brought to enforce, and therefore the service of the summons did not interrupt the prescription of the different right which the plaintiff now wishes to enforce.”
[15] In Neon
and Cold Cathode Illuminations (Pty) Ltd v Ephron 1978 (1) SA 463 (A)
Trollip JA also referred to the decision in the Park Finance
Corporation case and intimated at 474 E that he had
“some reservation about the correctness of the decision on the facts”
and further remarked
at 475 A-B that
“the decision on the facts in the Park Finance Corporation case, supra, might well have been wrong, but no firm view need be expressed on this aspect.”
Trollip
JA held at 471 A-B that in deciding whether prescription was interrupted by
legal process the right sought to be enforced by means of
the amendment should
be “the same or substantially the same right” as alleged in the
originating process, and added
“[f]or the substance rather than the form of the previous process must be considered in determining whether or not it interrupted prescription.”
(See also
Wavecrest Sea Enterprises (Pty) Ltd v Elliot 1995 (4) SA 596 (SEC) at 599
E-600 A, 600 H-I and 601 H-602 F.)
[16] In our case the only real
difference between the debt originally claimed and the debt claimed in the
proposed amendment is
the identity of the creditor who seeks to enforce payment
of the debt. Even if I assume that the debt which the proposed new plaintiff
now seeks to claim by means of the amendment is substantially the same debt
which the plaintiff sought to enforce in the original
summons (a questionable
assertion), the problem still remains whether prescription in respect of the
original debt had been duly
interrupted. In this connection the plaintiff is
faced with the difficulty whether the summons was issued by the
“creditor”.
[17] The essential question therefore is whether
the service on the debtor of the summons whereby the plaintiff claimed payment
of the debt interrupted the running of prescription. Both the Park Finance
Corporation and the Neon and Cold Cathode cases were decided under
the 1943 Act which provided in s 6 (1)(b) that
“[e]xtinctive
prescription shall be interrupted by -
(b) service on the debtor of any process whereby action is
instituted.”
S 15(1) of the 1969 Act now specifically provides for
the service on the debtor of any process whereby the creditor claims
payment of the debt. It reads:
“The running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.”
(Emphasis
added.)
[18] In the present case a summons was served on the
defendant whereby the plaintiff claimed payment of the debt. It subsequently
transpired that the plaintiff was not the defendant’s creditor. In an
affidavit in support of the plaintiff’s application
for the amendment his
Germiston attorney conceded that the wrong company had been cited as the
plaintiff in the summons and that
the defendant at no time concluded any
contract or had any dealings with the plaintiff. It is common cause therefore
that a debtor-creditor
relationship between the defendant and the plaintiff
never existed. Consequently the summons did not constitute a process whereby
the creditor claimed payment of the debt. The running of prescription in
respect of the debt was accordingly not interrupted by service of the
summons on
the defendant. (Standard General Insurance Co Ltd v Eli Lilly (SA) (Pty) Ltd
(FBC Holdings (Pty) Ltd, Third Party) 1996(1) SA 382 (W) at 385 A-H and 387
H; and see Grindrod (Pty) Ltd v Seaman 1998(2) SA 347 (C) at 353 A- 354
F.)
[19] There are two further aspects with regard to the interruption
of prescription which can be disposed of briefly. The first
is that service of
a declaration cannot interrupt prescription in terms of s 15(1) of the 1969 Act
for the simple reason that a declaration
is not a “process” as
described in s 15(6) of the 1969 Act. The fact that the declaration in the
present matter described
the correct plaintiff as creditor is therefore of no
consequence in the absence of a proper amendment of the summons.
The
second aspect concerns interruption of prescription in terms of s 14(1) of the
1969 Act. This section provides for the interruption
of
prescription
“by an express or tacit acknowledgement of liability by the debtor”.
The defendant,
as pointed out above, made a number of admissions in his plea which could
perhaps be regarded as an “acknowledgement
of liability”, but those
admissions were always made in the alternative while the main plea remained a
blanket denial of liability.
There was therefore no unconditional
acknowledgement of liability.
[20] In terms of s 12(1) of the 1969
Act prescription commenced running when the defendant’s debt became due,
which was
not later than December 1993. S 10(1) and s 11(d) of the 1969 Act
provide for a period of prescription of three years in the present
case. As
pointed out above the running of prescription was not interrupted by the service
of the plaintiff’s summons on the
defendant in April 1996, or by any
other means. In the result the debt had already been extinguished by
prescription and the
claim had accordingly lapsed when the plaintiff eventually
applied for the amendment in August 1997. The amendment of the claim
could
therefore not be granted.
[21] The appeal is dismissed with
costs.
-----------------------
F H
GROSSKOPF
JUDGE OF APPEAL
SCHUTZ J A)
PLEWMAN JA)
concur
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