De Abreu and Another v Pestana Family Meat and Chicken CC and Another (2327/2005) [2021] ZAGPJHC 840 (30 December 2021)

De Abreu and Another v Pestana Family Meat and Chicken CC and Another (2327/2005) [2021] ZAGPJHC 840 (30 December 2021)

The court found that the amendment to the particulars of claim did not introduce a new cause of action but rather supported and amplified the original claim. The facts supporting the claim remained the same, and the prayers and amounts claimed were identical. The debt pursued in the amendment was substantially the same as that originally claimed, and thus, prescription was interrupted. The defendants' reliance on a second agreement as a new cause of action was rejected, as the claim for repayment arose from the failure to transfer the liquor licence, which was common to both agreements. The court applied the principles from Sentrachem Ltd v Prinsloo and Imperial Bank Ltd v Barnard NNO,...

Citation
[2021] ZAGPJHC 840
Parties
Plaintiff: De Abreu and Fernandes; Defendant: Pestana Family Meat and Chicken CC; Defendant: Another
Court
South Gauteng High Court, Johannesburg
Jurisdiction
South Africa
Judgment Date
30 December 2021
Case Number
2327/2005
Procedural Posture
Civil Trial / Special Plea of Prescription Following Amendment to Particulars of Claim
Outcome
Special plea of prescription dismissed with costs.
Judges
Victor
Legal Topics
Prescription Act, Amendment of Pleadings, Cause of Action, Interruption of Prescription
Civil Procedure Prescription Act Amendment of Pleadings Cause of Action Interruption of Prescription

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 4 Authorities cited 10 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

De Abreu and Fernandes

Plaintiff

Pestana Family Meat and Chicken CC

Defendant

Another

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription Following Amendment to Particulars of Claim

Legal Issues

  1. 1 Does the plaintiffs' amendment to the particulars of claim introduce a new cause of action that is subject to prescription?
  2. 2 Is the debt claimed in the amendment substantially the same as the debt originally claimed, thereby interrupting prescription?

Ratio Decidendi

The court found that the amendment to the particulars of claim did not introduce a new cause of action but rather supported and amplified the original claim. The facts supporting the claim remained the same, and the prayers and amounts claimed were identical. The debt pursued in the amendment was substantially the same as that originally claimed, and thus, prescription was interrupted. The defendants' reliance on a second agreement as a new cause of action was rejected, as the claim for repayment arose from the failure to transfer the liquor licence, which was common to both agreements. The court applied the principles from Sentrachem Ltd v Prinsloo and Imperial Bank Ltd v Barnard NNO,...

Court Disposition

Special plea of prescription dismissed with costs.

Orders

  • The special plea of prescription is dismissed with costs.
  • The application for absolution is not dealt with and may be addressed on a different date.