FirstRand Bank Ltd. v Nedbank (Swaziland) Ltd. (01/03) [2004] ZASCA 22; 2004 (6) SA 317 (SCA) (30 March 2004)

FirstRand Bank Ltd. v Nedbank (Swaziland) Ltd. (01/03) [2004] ZASCA 22; 2004 (6) SA 317 (SCA) (30 March 2004)

The Supreme Court of Appeal held that the amendment to the particulars of claim introduced a different right of action, not merely a clarification or expansion of the original claim. In the original claim, the respondent sued as cessionary of Swazi Timber, alleging Swazi Timber's impoverishment. In the amended claim, the respondent sued in its own right, alleging its own impoverishment. The change in the identity of the creditor and the basis of the right of action meant the amended claim was not recognisable as the same or substantially the same as the original. Therefore, service of the original summons did not interrupt prescription in respect of the amended claim, and the respondent's...

Citation
[2004] ZASCA 22
Parties
Appellant: FirstRand Bank Limited; Respondent: Nedbank (Swaziland) Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
30 March 2004
Case Number
01/03
Procedural Posture
Civil Appeal / Appeal From High Court, Johannesburg; Special Plea of Prescription
Outcome
Appeal upheld; special plea of prescription succeeds; respondent's claim dismissed with costs.
Judges
Scott, Mthiyane, Nugent, Lewis, Ponnan
Legal Topics
Prescription Act, Special Plea of Prescription, Amendment of Particulars of Claim, Unjust Enrichment, Cession, Interruption of Prescription
Civil Procedure Commercial and Corporate Prescription Act Special Plea of Prescription Amendment of Particulars of Claim Unjust Enrichment Cession Interruption of Prescription

Case Brief

Summary, issues, holding and outcome

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Parties

FirstRand Bank Limited

Appellant

Nedbank (Swaziland) Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court, Johannesburg; Special Plea of Prescription

Legal Issues

  1. 1 Whether the amendment to the particulars of claim introduced a different right of action, thereby failing to interrupt prescription.
  2. 2 Whether the original summons interrupted prescription in respect of the amended claim.
  3. 3 Whether the right of action in the amended claim is recognisable as the same or substantially the same as that in the original claim.

Ratio Decidendi

The Supreme Court of Appeal held that the amendment to the particulars of claim introduced a different right of action, not merely a clarification or expansion of the original claim. In the original claim, the respondent sued as cessionary of Swazi Timber, alleging Swazi Timber's impoverishment. In the amended claim, the respondent sued in its own right, alleging its own impoverishment. The change in the identity of the creditor and the basis of the right of action meant the amended claim was not recognisable as the same or substantially the same as the original. Therefore, service of the original summons did not interrupt prescription in respect of the amended claim, and the respondent's...

Court Disposition

Appeal upheld; special plea of prescription succeeds; respondent's claim dismissed with costs.

Orders

  • The appeal succeeds with costs, including the costs of two counsel.
  • The order of the court a quo is set aside and substituted with: 'The defendant's special plea of prescription is upheld and the plaintiff's claim is dismissed with costs.'