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[2013] ZASCA 103
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Solenta Aviation (Pty) Ltd v Aviation @Work (Pty) Ltd (754/2012) [2013] ZASCA 103; 2014 (2) SA 106 (SCA) (12 September 2013)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 754/2012
In the matter between:
SOLENTA AVIATION (PTY)
LTD
.........................................................................
Appellant
and
AVIATION
@ WORK (PTY) LIMITED
...............................................................
Respondent
Neutral
citation:
Solenta v Aviation @ Work
(754/2012)
[2013]
ZASCA 103
(12 September 2013)
Coram:
Mthiyane
AP, Ponnan, Tshiqi and Willis JJA and Meyer AJA
Heard:
23
August 2013
Delivered: 12
September 2013
Summary: Prescription
– Extinctive prescription –
s 15(1)
of the
Prescription
Act 68 of 1969
– whether the running of prescription is
interrupted by service on debtor of combined summons whereby action
is instituted
by a plaintiff company which is not the creditor but
subsequently substituted with the true one by means of an amendment
after
the prescriptive period.
ORDER
On appeal from:
the North Gauteng High Court, Pretoria (JW Louw J sitting as court of
first instance):
The
appeal is dismissed with costs, including the costs of two counsel.
JUDGMENT
Meyer AJA (Mthiyane AP,
Ponnan, Tshiqi, Willis JJA concurring):
[1] This is an appeal
against a judgment of Louw J, sitting in the North Gauteng High
Court, in which he upheld a special plea of
prescription raised by
the respondent, Aviation @ Work (Pty) Ltd, against a claim for
payment of damages brought against it by
the appellant, Solenta
Aviation (Pty) Ltd.
[2] On 13 March 2007, a
combined summons was issued in the name of Solenta Aviation Workshops
(Pty) Ltd (Solenta Aviation Workshops)
against the respondent. A plea
with a claim in reconvention was in due course delivered by the
respondent, followed by the delivery
of a replication and a plea to
the claim in reconvention in the name of Solenta Aviation Workshops.
[3] It was common cause
on the pleadings that on or about 22 March 2006 and at Wonderboom,
Pretoria, Solenta Aviation Workshops,
as lessor, and the respondent,
as lessee, concluded a written agreement - referred to as the
‘Aircraft Dry Lease Agreement’
– in terms whereof
Solenta Aviation Workshops leased a certain Cessna aircraft to the
respondent (‘the contract’).
A copy of the contract upon
which reliance was placed was annexed to the particulars of claim,
and admitted. Solenta Aviation Workshops
in convention and the
respondent in reconvention claimed damages against each other
resulting from the other party’s alleged
breach of the
contract.
[4] The description of
the lessor in terms of the contract is ‘Solenta Aviation (Pty)
Ltd’ and not Solenta Aviation
Workshops as described in the
combined summons and in the particulars of claim. On 18 August 2009,
a notice of intention to amend
was delivered in which notice was
given that the description of the plaintiff was to be amended to
‘Solenta Aviation (Pty)
Ltd’ by the deletion of the word
‘Workshops’ where it appears in the summons and in
paragraph 1 of the particulars
of claim. The respondent objected to
the proposed amendment on the grounds that it would amount to a
substitution of one plaintiff
for another and that any claim that
Solenta Aviation (Pty) Ltd might have had against the respondent had
prescribed. An application
for leave to amend the citation of the
plaintiff was then brought.
[5] In granting the
amendment on 31 March 2010, Potterill J held that the description of
the plaintiff amounted to a misnomer rather
than a substitution of
the correct plaintiff for the wrong one. She held that the true
identity of the plaintiff was recognisable
from the particulars of
claim and the annexed contract and that service of the summons on the
respondent had interrupted the running
of prescription in terms of
s
15(1)
of the
Prescription Act.
1
[6
] The amendment was
effected on 7 April 2010. The respondent thereupon amended its plea
by raising a special plea of prescription
to the appellant’s
claim. The appellant delivered a replication in answer to the
respondent’s special defence. It is
common cause on these
further pleadings that Solenta Aviation Workshops and the appellant
were both registered companies and therefore
separate legal entities.
It is also common cause that the contract was concluded between the
appellant and the respondent; that
no contractual relationship
existed between Solenta Aviation Workshops and the respondent at the
time of instituting the action;
and,
that
Solenta Aviation Workshops was not a creditor of the appellant.
[7] It is alleged in the
special plea that service on the respondent of the summons whereby
Solenta Aviation Workshops claimed payment
of damages arising from
the respondent’s alleged breach of the contract - which breach
is alleged in the particulars of claim
to have taken place on or
about 13 May 2006 - did not interrupt the running of prescription in
terms of
s 15(1)
of the
Prescription Act and
that a period of more
than three years had lapsed since the alleged breach and the delivery
of the notice of intention to amend
the citation of the plaintiff or
of the actual substitution of the appellant for Solenta Aviation
Workshops.
[8] The appellant
responded in its replication to the special plea that, although
incorrectly described in the summons and particulars
of claim, it was
the company that instituted the action against the respondent on 13
March 2007 and that that process conveyed
to the reader the intention
of the appellant, as creditor, to claim payment from its debtor, the
respondent. The defence of
res
iudicata
in
the form of what has become known as issue estoppel is also raised.
It is alleged that, in dismissing the respondent’s
objection to
the proposed amendment, ‘… the court determined the
identical issue between the identical parties now
raised in the
special plea …’ and that the respondent ‘…
is accordingly, and in addition, issue estopped
on the issue raised
in the special plea.’
[9] The trial on two
separated issues proceeded before Louw J. He was only concerned with
the issues of
res
iudicata
and
prescription while the remaining issues stood over for later
determination. No evidence was led and the parties confined
themselves
to the documents that formed part of the record. In
upholding the special plea of prescription, the court a quo followed
the decision
of this court in
Blaauwberg
Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd
2
and held that the summons
that was served in this instance, objectively considered, failed to
communicate to the defendant (respondent)
the intention of the
plaintiff (appellant) to claim payment of the debt. It held that the
summons did not meet the objects of
s 15(1)
of the
Prescription Act
and
it did not interrupt prescription. In dismissing the plea of
res
iudicata
,
the court a quo held that
the application for amendment was interlocutory and the finding of
Potterill J was not one that finally
disposed of an issue in the
action between the parties.
3
In the result, the
appellant’s claim was dismissed with costs, including the costs
of two counsel. The appellant appeals to
this court with the leave of
the court a quo. This appeal concerns the same issues of prescription
and
res
iudicata
.
[10] In terms of
s 12(1)
of the
Prescription Act, prescription
begins to run when the debt
becomes due. It is common cause between the parties that the debt
which forms the subject of the appellant’s
claim became due on
13 May 2006.
Sections 10(1)
and
11
(d) provide for a period of
prescription of three years in the present case. The notice of the
application to amend the citation
of the plaintiff was given on 18
August 2009, which was after the prescriptive period.
Section 15(1)
provides as follows:
‘
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.’
(Underlining
added.)
[11] The question to be
decided is therefore whether the combined summons served on the
respondent by which action was instituted
in the name of Solenta
Aviation Workshops was a claim by the creditor of the debt, which it
is now common cause is the appellant,
in compliance with the
provisions of
s 15(1).
[12] The general rule or
test applicable in the determination of whether there is compliance
with
s 15(1)
was re-affirmed by this court in
Blaauwberg
thus:
4
‘
For obvious
practical reasons the Legislature ordained certainty about when and
how the running of prescription is interrupted.
That certainty is of
importance to both debtors and creditors. It chose an objective
outward manifestation of the creditor’s
intentions as the
criterion, viz the service on the debtor of process in which the
creditor claims payment of the debt. That is
not a standard which
allows for reservations of mind or reliance on intentions which are
not reasonably ascertainable from the
process itself. Nor does it, as
a general rule, let in, in a supplementation of an alleged compliance
with
s 15(1)
, the subjective knowledge of either party not derived
from the process, such as, for example, the content of a letter of
demand
received by the debtor shortly before service of the process.
Compare
Standard
Bank of SA Ltd v Oneanate Investments (Pty) Ltd
1995
(4) SA 510
(C) at 553E-G.’
5
[13] In
Standard Bank
of SA Ltd v Oneanate Investments (Pty) Ltd
, the case referred to
in the above quotation, Selikowitz J stated the test as follows:
‘
The test as
to whether any given process interrupts prescription in respect of a
particular debt must be an objective one. The process
in question
must be objectively considered. Knowledge which one or both of the
parties may have
dehors
the process
cannot affect its interpretation or its interruptive effect. More
particularly, the fact that the plaintiff may subjectively
intend to
claim a particular debt, and that defendant may, by virtue of
extrinsic knowledge, appreciate that plaintiff has wrongly
identified
the debt in his summons, cannot convert the summons into one which
interrupts prescription in respect of any debt other
than the one
identified in the process. It is the process which interrupts
prescription, not the plaintiff’s subjective intention
to sue.’
[14] Counsel for the
appellant placed great reliance upon the description of the lessor as
‘Solenta Aviation (Pty) Ltd’
and that of the lessee as
‘Aviation @ Work (Pty) Ltd’ in the contract that is
annexed to the combined summons that
was served upon the respondent
as well as on the reference to
‘
domicilium
citandi et executandi
’
in
the description of each party on the face of the combined summons and
in paragraphs 1 and 2 of the particulars of claim. The
details of the
creditor given in the summons and in paragraph 1 of the particulars
of claim were that:
‘
[t]he
plaintiff is Solenta Aviation Workshops (Pty) Ltd, a company, duly
incorporated in accordance with the laws of the Republic
of South
Africa with
domicilium
citandi et executandi
of
(sic) Block 5 Stratford Office Park, Corner Cedar Avenue and Valley
Road, Broadacres, Johannesburg.’
The appellant was sought
to be introduced to the proceedings by the deletion of the word
‘Workshops’. For the rest the
citation remained
unchanged. It is common cause that both corporate entities had the
same registered address, which was the one
given in the combined
summons and in the particulars of claim. The appellant’s
counsel submitted that the description of
the lessor in the contract
and the reference to a
‘
domicilium
citandi et executandi
’
communicated
to the respondent the correct identity of the creditor, viz the
appellant.
[15] To look only at the
contents of the contract and to conclude that the respondent must
have appreciated, or even did appreciate,
who the true creditor was,
which is essentially what the argument on behalf of the appellant
amounts to, can in my view not be
conclusive of the enquiry as to
whether payment of the debt was claimed by the creditor. The parties
to an action are cited in
the combined summons and particulars of
claim and the cause of action is set out in the particulars of claim.
It is true that the
debt which the appellant seeks to claim is the
same debt that Solenta Aviation Workshops sought to enforce in the
combined summons
that was served upon the respondent. This does not
mean that the combined summons was issued by ‘the creditor’
in compliance
with
s 15(1).
6
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6
The description of the
plaintiff as Solenta Aviation Workshops and of the defendant as
Aviation @ Work (Pty) Ltd on the face of
the combined summons and in
the particulars of claim and the further averments about the written
agreement that was concluded between
those two entities make it plain
that the appellant was not the creditor that claimed payment of the
debt in terms of the combined
summons notwithstanding the reference
to the appellant’s name as the lessor in the annexed contract.
The citation of the
domicilium
does
not assist the appellant.
[16] The admissions by
the respondent of the citations of the parties and of the contract
and its terms also do not avail the appellant.
They did not bring
about an automatic substitution of one plaintiff for another.
7
The appellant’s
counsel in my view correctly conceded that the admissions could also
not be regarded as an unconditional acknowledgement
of liability in
terms of
s 14(1)
of the
Prescription Act. The
admissions in any event
admit the parties to the contract to have been the respondent and
Solenta Workshops and not the respondent
and the appellant. They also
do not assist the appellant.
[17] To sum up: in
applying the objective test the claim made in the combined summons
was, on a plain reading, not that of the true
creditor, which is the
appellant, and service of that process on the respondent did not
interrupt the running of prescription.
The appellant’s counsel
conceded that, if this be the finding, it will not be necessary to
consider the defence of issue
estoppel.
[18] The appellant’s
counsel resisted the request on behalf of the respondent that a costs
order in favour of the respondent
include the costs of two counsel. I
consider the employment of two counsel on behalf of the respondent to
have been prudent and
not extravagant.
[19] In the result the
following order is made:
The appeal is dismissed
with costs, including the costs of two counsel.
P A Meyer
Acting Judge of Appeal
APPEARANCES:
For
Appellant: D J Vetten
Instructed
by:
Darryl
Furman & Associates
Pretoria
Matsepes
Incorporated
Bloemfontein
For Respondent: M C Erasmus SC and
N C Hartman
Instructed
by:
Mathys
Krog Attorneys
Pretoria
Hugo
& Bruwer Attorneys
Bloemfontein
1
Prescription
Act 68 of 1969
.
2
Blaauwberg
Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd
2004 (3) SA 160
(SCA).
3
The
court a quo followed the decision of the Full Court of the Western
Cape High Court in
Anglo Dutch Meats (Exports) Limited v
Blaauwberg Meat Wholesalers CC
2002 CLR 292
(C) paras 17-19.
4
Fn
2 supra para 13.
5
In
Associated Paint & Chemical Industries (Pty) Ltd t/a Albestra
Paint and Lacquers v Smit
2000 (2) SA 789
(SCA) para 18 this
court applied the objective test and concluded that the claim made
in the summons was, on a plain reading,
not that of the true
creditor.
6
Fn
5 para 16.
7
Fn
5 para 6.