Sackstein NO v D-G, Dept of Education & Training, Bisho (2155/97) [2002] ZAECHC 1 (1 January 2002)

Sackstein NO v D-G, Dept of Education & Training, Bisho (2155/97) [2002] ZAECHC 1 (1 January 2002)

The court held that although the original plaintiffs interrupted prescription by serving summons, once they ceded their claim to the applicants, they lost their right of action. The applicants, as cessionaries, were obliged to regularise their position by substitution or issuing new summons before prescription ran. Since the application for substitution was served after the prescription period had elapsed, the claim had prescribed. Granting substitution at this stage would prejudice the defendants by depriving them of the prescription defence. The application for substitution was therefore refused, and the action dismissed as the original plaintiffs no longer had locus standi.

Citation
[2002] ZAECHC 1
Parties
Plaintiff: Leslie Neil Sackstein N.O.; Plaintiff: Floris Johannes Lordan N.O.; Defendant: Director-General Department of Education and Training, Bisho; Defendant: Director-General Department of Public Works, Bisho; Applicant: David James Kruger N.O.; Applicant: Johannes Gysbertus Roos N.O.
Court
High Courts - Eastern Cape
Jurisdiction
South Africa
Judgment Date
1 January 2002
Case Number
2155/97
Procedural Posture
Civil Trial / Application for Substitution of Plaintiffs Prior to Trial Commencement
Outcome
Application for substitution dismissed; action dismissed with costs.
Judges
J F J Van Rensburg
Legal Topics
Cession of Claims, Prescription Act, Substitution of Parties, Locus Standi
Civil Procedure Cession of Claims Prescription Act Substitution of Parties Locus Standi

Case Brief

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Parties

Leslie Neil Sackstein N.O.

Plaintiff

Floris Johannes Lordan N.O.

Plaintiff

Director-General Department of Education and Training, Bisho

Defendant

Director-General Department of Public Works, Bisho

Defendant

David James Kruger N.O.

Applicant

Johannes Gysbertus Roos N.O.

Applicant

Procedural Posture

Civil Trial / Application for Substitution of Plaintiffs Prior to Trial Commencement

Legal Issues

  1. 1 Whether the cessionaries may be substituted as plaintiffs after the original plaintiffs ceded their claim.
  2. 2 Whether the service of summons by the original plaintiffs interrupted prescription for the benefit of the cessionaries.
  3. 3 Whether substitution at this stage would prejudice the defendants by depriving them of the prescription defence.

Ratio Decidendi

The court held that although the original plaintiffs interrupted prescription by serving summons, once they ceded their claim to the applicants, they lost their right of action. The applicants, as cessionaries, were obliged to regularise their position by substitution or issuing new summons before prescription ran. Since the application for substitution was served after the prescription period had elapsed, the claim had prescribed. Granting substitution at this stage would prejudice the defendants by depriving them of the prescription defence. The application for substitution was therefore refused, and the action dismissed as the original plaintiffs no longer had locus standi.

Court Disposition

Application for substitution dismissed; action dismissed with costs.

Orders

  • The application for substitution is dismissed with costs.
  • The plaintiffs' action is dismissed with costs.