Silouette Investments Ltd. v Virgin Hotels Group Ltd. (116/2008) [2009] ZASCA 40; 2009 (4) SA 617 (SCA) ; [2009] 3 All SA 172 (SCA) (31 March 2009)

Silouette Investments Ltd. v Virgin Hotels Group Ltd. (116/2008) [2009] ZASCA 40; 2009 (4) SA 617 (SCA) ; [2009] 3 All SA 172 (SCA) (31 March 2009)

The Supreme Court of Appeal held that the respondent, although a foreign company, was not 'outside the Republic' for the purposes of section 13(1)(b) of the Prescription Act because it had voluntarily submitted to the jurisdiction of the South African courts and authorised its South African attorneys to accept service of process. This eliminated any legal or practical impediment to instituting proceedings, which is the mischief section 13(1)(b) seeks to address. The court further found that the interruption of prescription effected by service of the original summons lapsed when the appellant was substituted out as plaintiff and then re-substituted, as the claim was not prosecuted to final...

Citation
[2009] ZASCA 40
Parties
Appellant: Silouette Investments Limited; Respondent: Virgin Hotels Group Limited
Court
Supreme Court of Appeal
Jurisdiction
South Africa
Judgment Date
31 March 2009
Case Number
116/08
Procedural Posture
Civil Appeal / Appeal From High Court, Johannesburg; Special Plea of Prescription Determined as Preliminary Issue
Outcome
Appeal dismissed with costs, including costs occasioned by employment of two counsel.
Judges
Farlam, Navsa, Mthiyane, Mlambo, Cachalia
Legal Topics
Extinctive Prescription, Prescription Act 1969, Interruption of Prescription, Substitution of Parties, Jurisdiction of Foreign Debtors
Civil Procedure Extinctive Prescription Prescription Act 1969 Interruption of Prescription Substitution of Parties Jurisdiction of Foreign Debtors

Case Brief

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Parties

Silouette Investments Limited

Appellant

Virgin Hotels Group Limited

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court, Johannesburg; Special Plea of Prescription Determined as Preliminary Issue

Legal Issues

  1. 1 Whether the respondent, a foreign company, was 'outside the Republic' for purposes of section 13(1)(b) of the Prescription Act 68 of 1969.
  2. 2 Whether interruption of prescription effected by service of summons lapsed in terms of section 15(2) of the Act when the plaintiff was substituted and then re-substituted.
  3. 3 Whether the appellant's claim had prescribed given the procedural amendments and the respondent's status.

Ratio Decidendi

The Supreme Court of Appeal held that the respondent, although a foreign company, was not 'outside the Republic' for the purposes of section 13(1)(b) of the Prescription Act because it had voluntarily submitted to the jurisdiction of the South African courts and authorised its South African attorneys to accept service of process. This eliminated any legal or practical impediment to instituting proceedings, which is the mischief section 13(1)(b) seeks to address. The court further found that the interruption of prescription effected by service of the original summons lapsed when the appellant was substituted out as plaintiff and then re-substituted, as the claim was not prosecuted to final...

Court Disposition

Appeal dismissed with costs, including costs occasioned by employment of two counsel.

Orders

  • The appeal is dismissed with costs, including those occasioned by the employment of two counsel.