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[2002] ZAWCHC 37
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Anglo Dutch Meats (Exports) Limited v Blaauwberg Meat Wholesalers cc (A599/01) [2002] ZAWCHC 37 (27 June 2002)
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF
GOOD HOPE PROVINCIAL DIVISION)
Case No: A
599/01
In the matter
between:
ANGLO
DUTCH MEATS (EXPORTS) LIMITED
Appellant
and
BLAAUWBERG MEAT WHOLESALERS CC
Respondent
JUDGMENT: 27 JUNE 2002
VAN ZYL J:
INTRODUCTION
[1] On 12 April 1996 Anglo Dutch Meats (UK)
Limited (âADM (UK)â), as plaintiff, issued summons against the
respondent (hereinafter
referred to as the defendant) for payment of
the sum of $226 720,00 (later amended to $112 230,00 and still later
to $109,287).
This was the balance of the purchase price owing to it
on two consignments of frozen, boneless beef flanks, with an average
visual
lean content of 70%. The beef had been shipped to the
defendant on 8 May 1995 pursuant to orders placed through the agent
of ADM
(UK), namely August Export Limited, on 23 March and 13 April
1995 respectively. The defendant had paid ADM (UK) the amount of $114
490.00, but had failed to make any further payments.
[2] In its
plea the defendant denied having contracted with ADM (UK). It averred
that it had, on or about 10 March and 11 April 1995,
negotiated
agreements with JNC Traders CC, trading as Megatron Meat Trading and
acting on behalf of an undisclosed principal, for
the purchase of the
beef in question. The defendant averred that the shipment of beef had
arrived in Cape Town on 20 June 1995 and
admitted that it had paid
ADM (UK), after establishing its identity as the previously
undisclosed principal, the amount of $114 400.00
in respect thereof.
The said payment was made, however, before it had inspected the beef
and discovering that its visual lean content
was 60% and not 70% as
agreed. The defendant relied on this, and a number of further alleged
breaches of contract, when it subsequently
filed a claim in
reconvention.
[3] Shortly
before the trial was to commence in November 1998, ADM (UK), still as
plaintiff, gave notice of its intention to amend
its pleadings by
describing itself as Anglo Dutch Meats (Exports) (âADM (Exports)").
The application was supported by an affidavit
deposed to by one Paul
Gilham, the Export Manager of ADM (Exports). He pointed out that ADM
(Exports) was, at all relevant times,
a wholly owned subsidiary of
ADM (UK), the holding company. Both these companies were duly
registered in accordance with English
law and had their registered
office and principal place of business at the same address in
Eastbourne, East Sussex. According to
Gilham, ADM (UK) purchased,
cut, processed and packed meat in preparation for sale. ADM
(Exports), in turn, purchased the packed
product from ADM (UK) and
was the sole distributor and exporter to South Africa of such
product. South African clients, again, purchased
the product from ADM
(Exports), and not directly from ADM (UK).
[4] According
to Gilham confusion sometimes arose because of the occurrence of the
words âAnglo Dutch Meatsâ (ADM) in the name
of both corporate
entities. This happened in the present case, where the plaintiff was
wrongly described as ADM (UK) instead of ADM
(Exports), despite
Gilhamâs specific instructions to Mr Garth Hardie of attorneys
Coulters, Van Gend and Kotze, to institute proceedings
on behalf of
ADM (Exports). These instructions appear from a fax from Gilham to
Hardie dated 22 December 1995. When subsequent attempts
to settle the
matter failed, Gilham sent a similar fax, dated 4 April 1996, to Mr
Jan van Gend, who had taken over the relevant file
on the retirement
of Hardie. In both these transmissions the plaintiff was described as
âadm (exports)â and the letterhead indicated
that the fax
transmission emanated from Anglo Dutch Meats (Exports) Ltd.
[5] In a
supporting affidavit Van Gend confirmed that the plaintiff, on whose
behalf he had been instructed to issue summons against
the defendant,
was at all material times intended to be ADM (Exports). This was in
fact also the defendantâs understanding, as
appears from a number
of documents recording the sale and delivery of, and payment for, the
meat in question. Thus, for example,
in response to an invoice from
the plaintiff dated 5 May 1995 and indicating ADM (Exports) as the
seller, the defendant made full
payment of the amount on the invoice
by means of a bill of exchange dated 26 May 1995 and addressed to ADM
(Exports) as payee. Despite
the fact that the parties were
ad idem
as to
the identity of the plaintiff, Van Gend explained, he
erroneously, and in good faith, proceeded to describe the plaintiff
as ADM (UK),
instead of ADM (Exports), in the summons and in
subsequent pleadings. He averred, however, that, although initiated
by him, this
mistake was common to both parties. The defendant would
not, therefore, be prejudiced by the proposed amendment. It was,
indeed,
in the interests of justice and fairness, that it be granted.
[6] The
defendant opposed the amendment on the ground that it would not
simply be correcting an erroneous description or a misnomer,
but
would have the effect of substituting âa separate legal personaâ
for the plaintiff. Any claim that ADM (Exports) might have
against
the defendant would already have prescribed. The defendant would
hence be prejudiced should the amendment be granted in that
it would,
inter alia
, be deprived of a special plea of prescription. I
have some difficulty in understanding this, since the defendant could
at no stage
have raised prescription against ADM (UK). The amendment
was in fact to its benefit in that, if it should be held to have
introduced
a new plaintiff, it would have the effect of furnishing
the defendant with a special plea of prescription against ADM
(Exports).
This is a far cry from being prejudiced by the loss of a
previously available defence. This aspect will be dealt with again
later
on in this judgment (par 17 below).
[7] The
matter came before Cleaver J for consideration of only the
application for amendment. After dealing at some length with the
submissions of counsel and after careful perusal of the relevant
documentation, he accepted that the plaintiff had been wrongly
described
in the summons and subsequent pleadings as a result of a
genuine mistake on the part of Van Gend. The parties had, in their
correspondence
and elsewhere, clearly regarded ADM (Exports) as the
seller of the meat and hence as the true plaintiff in the action. An
amendment
to reflect this misnomer would not have the effect of
introducing a new plaintiff and would not cause the defendant any
prejudice.
The learned judge found support for this finding in
Mutsi
v Santam Versekeringsmaatskappy en 'n Ander
1963 (3) SA 11
(W),
Dawson and Fraser (Pty) Ltd v Havenga Construction (Pty) Ltd
1993 (3) SA 397
(B) and
Devonia Shipping Ltd v MV Luis (Yeoman
Shipping Co Ltd Intervening)
1994 (2) SA 363
(C). In addition he
was satisfied that justice and fairness favoured the plaintiff. In
the event the application for amendment of
the pleadings was granted
on 10 December 1998 and ADM (Exports) became the plaintiff (the
appellant in the present proceedings, to
whom I shall continue to
refer as the plaintiff).
[8] An
application for leave to appeal was dismissed by Cleaver J, as was a
subsequent petition to the Chief Justice. The amendment
substituting
ADM (Exports) as plaintiff was accordingly effected. The defendant
thereupon filed a special plea on the basis that
the claim of ADM
(Exports) against the defendant had prescribed by the time the
aforesaid amendment was granted.
[9] The
matter subsequently came before Hodes AJ on a number of defined
issues, including whether or not the plaintiff's claim had
prescribed
and whether or not the defendant had suffered damages as claimed in
reconvention. On the prescription issue the learned
judge held that
Cleaver J had been clearly wrong in finding that the original
description of the plaintiff was merely a misnomer.
The amendment of
this description in fact amounted to the introduction of a new
plaintiff. In this regard he relied strongly on
Associated Paint &
Chemical Industries (Pty) LTD t/a Albestra Paint and Lacquers v Smit
2000 (2) SA 789
(SCA), a judgment reported after Cleaver J had
delivered his judgment. Inasmuch as
section 15(1)
of the
Prescription
Act
68 of 1969
requires the creditor to claim payment of the
debt, Hodes AJ distinguished the cases relied on by Cleaver J and
held that the original
plaintiff, ADM (UK), had never been the
defendant's creditor. The running of prescription was accordingly not
interrupted by service
of ADM (UK)'s summons on the defendant. In the
event the special plea was upheld. The claim in reconvention,
however, was dismissed
for reasons not presently relevant.
[10] The
present appeal is directed only against the decision by Hodes AJ to
uphold the defendant's special plea of prescription.
There is no
cross-appeal in regard to the dismissal of the claim in reconvention.
THE
ISSUES
[11] The
most immediate issue is whether or not Hodes AJ was at large to
differ from Cleaver J's finding that the effect of the amendment
was
merely to correct a misnomer and not to introduce a new plaintiff. He
was not considering an appeal against the granting of the
amendment,
leave to appeal having been refused by both Cleaver J and the Supreme
Court of Appeal (par 8 above). If that means that
he was bound by
Cleaver J's finding on the issue of a misnomer, the question must
inevitably arise whether a special plea of prescription
could have
been entertained at all.
[12] If Hodes
AJ were indeed free to reject Cleaver Jâs aforesaid finding, his
reasons for doing so would have to be considered.
This would require
consideration of, firstly, whether or not the amendment simply
corrected a misnomer or introduced a new plaintiff
and, secondly,
whether or not it had retrospective operation. Of particular
importance in this regard would be the effect of
section 15(1)
of the
Prescription Act
68 of 1969
. This section played a significant
role in the decision of Hodes AJ, but was not dealt with by Cleaver J
in his judgment, ostensibly
because Cleaver J was considering an
application for amendment, whereas Hodes AJ was dealing with a
special plea of prescription.
Was
the Finding by Cleaver J Binding on Hodes AJ?
[13] It is
well established in our law that â[a] purely interlocutory order,
that is, one not having the effect of a final decree,
may at any time
before final judgment in the suit be varied or set aside by the judge
who made it or by any other judge sitting in
the same court and
exercising the same jurisdictionâ. So reads the head note to the
case of
Bell v Bell
1908 TS 887
, in which Innes CJ held (at
891) that an interlocutory order has final effect under the following
circumstances:
When an order
incidentally given during the progress of the litigation has a direct
effect upon the final issue, when its execution
causes prejudice
which cannot be repaired at a later stage, when it disposes of a
definite portion of that suit, then in essence
it is final, though in
form it may be interlocutory.
This test was confirmed by the same judge (then
judge of appeal) in
Steytler N O v Fitzgerald
1911 AD 295
at
313.
[14] In
Mears v Nederlandsch Zuid Afrikaansche
Hypotheek Bank Ltd
1908 TS 1147
, Bristowe J referred to the
Bell
judgment (par 13 above) in formulating the test as follows (at 1151):
Taking this as the test,
then, in order to be appealable an interlocutory decision must be one
which is irreparable, not in the sense
that the effect which it
produces cannot be repaired having regard to the resources at the
command of the person against whom it
is made, but in the sense that
(if it remains unreserved) it irreparably anticipates or precludes
some of the relief which would
or might have been granted at the
hearing.
Curlewis JA cited this
dictum
with
unqualified approval in
Globe and Phoenix Gold Mining Co Ltd v
Rhodesian Corporation Ltd
1932 AD 146
at 162-163. See also
Pretoria Garrison Institutes v Danish Variety Products (Pty) Ltd
1948 (1) SA 839
(A) at 870.
[15] In
Duncan N O v Minister of Law and Order
1985 (4) SA 1
(T), Van Dijkhorst J stated (at 2E-F) that, as a
general rule, a final judgment, which correctly expresses the
decision of the court,
cannot be altered by such court. On the other
hand, he observed (at 3A),âa simple interlocutory order [which does
not have the
effect of a final order] ⦠is open to reconsideration,
variation or rescission on good cause shown". In this regard the
learned
judge relied strongly on the judgment of Schreiner JA in the
Pretoria Garrison Institutes
case (par 14 above).
[16] A particularly instructive discussion of the
distinction between interlocutory orders that have âa final and
definitive effect
on the main actionâ and those that do not may be
found in the judgment of Corbett JA in
South Cape Corporation
(Pty) Ltd v Engineering Management Services (Pty) Ltd
1977 (3) SA
534
(A) at 549G-551A. See too
Zweni v Minister of Law and Order
1993 (1) SA 523
(A) at 521H-534B (on the meaning of an appealable
âjudgment or orderâ) and
Standard General Insurance Co Ltd v
Eli Lilly (SA) (Pty) Ltd
1996 (1) SA 382
(W) at 387E-F. For
present purposes it is not necessary to elaborate on this theme.
[17] An order
granting an amendment of a pleading would, under normal
circumstances, be interlocutory unless it can be shown that
it is
final in nature in that it wholly or partially disposes of an issue
in the main action. In the present matter the amendment
granted by
Cleaver J did not have the effect of disposing of any issue in the
main action. It likewise did not cause the defendant
irreparable
prejudice by depriving him of a special plea of prescription, or by
anticipating or precluding any relief envisaged in
the particulars of
claim. On the contrary, as mentioned before (par 6 above), if in fact
the amendment introduced a new legal
persona
, as alleged by
the defendant, it furnished him with such plea for the first time.
[18] It must,
of course, be remembered that Hodes AJ was not considering an appeal
against the decision of Cleaver J, but was dealing
with a special
plea of prescription raised for the first time after Cleaver J had
granted the amendment. As such, I believe, he was
at large to
consider afresh the effect of the amendment for purposes of assessing
whether or not it had merely corrected a misnomer
or had indeed
introduced a new plaintiff. In accordance with the authorities cited
above, he would in fact have been empowered to
vary or set aside the
amendment (par 13 above). Assuming, however, that he was bound by the
amendment inasmuch as the application
for leave to appeal against the
order granting it had been refused by both Cleaver J and the Chief
Justice, he could not, in my view,
be bound by the
ratio
underlying the granting thereof. The refusal of leave to appeal was,
simply stated, a confirmation of the validity of the amendment,
not
necessarily of the reasoning behind it. In his judgment dismissing
the application for leave to appeal Cleaver J held that the
order
granting the amendment was not susceptible to appeal. In any event
there was nothing stopping the defendant from raising a
plea of
prescription and leading evidence in the trial to bolster it.
[19] At the
stage Cleaver J considered the application for amendment,
prescription had not yet been pleaded and was at most a potential
defence that could be raised at some future time. The facts and
circumstances relevant to a plea of prescription could differ
substantially
from those before the court at the time of considering
only the amendment. And even if they should remain the same, the
trial court
could, conceivably, approach their meaning, ambit and
interpretation from a totally different perspective. That is why a
court may
be reluctant to consider such a potential defence before it
has been pleaded. The defendant is certainly not precluded from
raising
it after the amendment has been granted and can hence not
submit that he has been prejudiced. See
Wavecrest Sea Enterprises
(Pty) Ltd v Elliot
1995 (4) SA 596
(SEC) at 598I-J and
Stroud
v Steel Engineering Co Ltd and Another
1996 (4) SA 1139
(W) at
1141B-D and 1142C-F. In the latter citation, I would respectfully
submit, Flemming DJP approached the issue in an eminently
practical
way:
There
remains the contention that because the claim is prescribed, it
should not be allowed. I accept that the Court normally would
not
permit an allegation which has no possibility of advancing the
situation of a litigant and can at best serve as a basis for the
need
to hear evidence which leads nowhere. Accordingly it would make no
sense to permit a claim which is known to have prescribed.
But if the
supervening of prescription is not common cause, the application for
amendment is normally not the proper place to attempt
to have that
issue decided. Technically speaking, in fact, prescription is not an
issue until it has been pleaded. I say 'normally'
because there may
be special cases, for example where only legal interpretation makes
the difference to facts which are common cause.
However, except in
such special situations, once prescription is not common cause, the
plaintiff should not be deprived of his chance
to put his claim
before the Court because of apparent probabilities at the time when
the amendment is considered. Considerations
of effectiveness and
fairness confirm that propriety. The present defendant ought to raise
its proposed defence (prescription) in
the same way that it would
raise any other defence which becomes appropriate after an amendment
is granted.
This
dictum
was referred to with approval by Foxcroft J in
Grindrod
(Pty) Ltd v Seaman
1998 (2) SA 347
(C) at 351B-E.
[20] In view
of the aforesaid considerations I am of the view that Hodes AJ was
not bound by Cleaver J's finding that the effect of
the amendment was
to correct a misnomer and not to introduce a new plaintiff. I now
turn to this issue.
Did the
Amendment Correct a Misnomer or Introduce a New Plaintiff?
[21] The
difficulty in this regard is that it is common cause that ADM (UK),
the original plaintiff, and ADM (Exports), the substituted
plaintiff,
are separate corporate entities, each with its own legal personality.
On the face of it, therefore, a new plaintiff has
indeed been
introduced by the amendment. On the other hand, however, it seems to
be clear that both parties identified the plaintiff,
ADM (Exports),
as the seller of the meat, as appears from the relevant invoice and
payment thereof (par 5 above). It was purely as
a result of a
bona
fide
mistake by Van Gend that the seller was not identified as
the plaintiff in the summons and subsequent pleadings.
[22] We hence
have before us two sides of the same coin. The one side prompted
Cleaver J to regard the original description of the
plaintiff, namely
ADM (UK), as a misnomer for the intended and bilaterally accepted
seller-plaintiff, namely ADM (Exports). The other
side led Hodes AJ
to hold that the amendment of this description, by substituting ADM
(Exports) for ADM (UK), had the effect of introducing
a new
plaintiff. The difference in legal effect of these two approaches is
of a radical nature. If indeed the amendment of the plaintiff's
name
were merely a misnomer, service of the summons would ordinarily have
the effect of interrupting the running of prescription.
If, however,
it should be regarded as the introduction of a new plaintiff, with
separate legal personality, the opposite may be true.
[23] The
difference between a misnomer and a change of defendant or plaintiff
has exercised judicial minds for many years. In the
early case of
L
& G Cantamessa v Reef Plumbers; L & G Cantamessa (Pty) Ltd v
Reef Plumbers
1935 TPD 56
summons was issued against the
defendant as a partnership. At the conclusion of the evidence,
however, the magistrate granted an
amendment in terms of which the
defendant was cited as a company. His reason for doing so was that,
in his view, the original description
of the defendant as a
partnership was a mere misnomer that he could correct in terms of
section 105 (3) of the
Magistrateâs Court Act
32 of 1917. On
review Tindall J held that the magistrate had erred in making this
finding, and stated (at 60):
This is
not a case of a mere misnomer. The effect of the amendment was to
introduce a new defendant into the case. The original defendant,
L. &
G. Cantamessa was either a partnership or two individuals. It would
seem that it was intended to cite L. & G. Cantamessa
as a
partnership because the summons was served only on one of the
partners under Order VI. In any event, whether the summons was
against a partnership or against two individuals, it is clear that
the limited company is an entirely different
persona
in law
and that it was not merely a matter of a misnomer. A different
persona
was introduced into the proceedings, and in my opinion
that was not permissible under sec. 105 ⦠The plaintiffs cannot
escape from
the fact that, in law, the company is a separate
persona
and that the
persona
was not sued in the original summons.
In the event the review was allowed with costs and
the judgment against L & G Cantamessa (Pty) Ltd was set aside.
[24] The
roles of the
personae dramatis
were reversed in
Park
Finance Corporation (Pty) Ltd v Van Niekerk
1956 (1) SA 669
(T).
In that case the defendant had contracted with a partnership, which
subsequently became incorporated and sued the defendant
as a company.
When the defendant pleaded that he was not liable to the plaintiff as
a company, the plaintiff sought an amendment
to the effect that the
partnership had ceded its rights against the defendant to the
plaintiff prior to the institution of the action.
The defendant
opposed the amendment on the grounds that he would be prejudiced in
that the claim contained in the amendment had prescribed.
Ramsbottom
J considered the facts and the argument placed before him and held
(at 674A-E):
The summons and the
declaration alleged a right arising from a contract between the
plaintiff and the defendant, and the action was
to enforce that
right. In fact there was no such contract and the alleged right was
non-existent; the action was brought to enforce
a right which in fact
did not exist. The amendment is to enforce a right which arose out of
a different contract between the defendant
and a different party, and
that is quite a different right; the fact that the right sued for in
the summons does not exist does not
make the right referred to in the
amendment the same right as that claimed in the summons ⦠In my
opinion the right which the plaintiff
now wishes to enforce is a
right arising out of a contract between different parties and is a
different right from that which the
action was brought to enforce,
and therefore the service of the summons did not interrupt the
prescription of the different right
which the plaintiff now wishes to
enforce.
A similar approach was adopted in
Thompson &
Stapelberg (Pty) Ltd v President Staal
Korporasie (Edms) Bpk
1963 (3) SA 293
(O). The decision on the facts was criticised,
however, by Trollip JA in
Neon and Cold Cathode Illuminations
(Pty) Ltd v Ephron
1978 (1) SA 463
(A) at 474D-475B. See also
Standard General Insurance Co Ltd v Eli Lilly (SA) (Pty) Ltd (FBC
Holdings (Pty) Ltd, Third Party)
1996 (1) SA 382
(W) at 385F-G
and
Grindrod (Pty) Ltd v Seaman
1998 (2) SA 347
(C) at
354D-F.
[25] The first case relied on by Cleaver J in his
aforesaid judgment (par 7 above) was
Mutsi v Santam
Versekeringsmaatskappy Bpk en ân Ander
1963 (3) SA 11
(O). This
was an application by the plaintiff (applicant) in a damages claim to
amend the description of the defendant (first respondent)
in the
summons and declaration. The two respondents, Santam
Versekeringsmaatskappy and Suid-Afrikaanse Nasionale Trust en
Assuransie
Maatskappy Beperk, were both insurance companies doing
business at the same address under the same abbreviated name, Santam.
The
applicant, who was involved in a collision with a vehicle insured
with the first respondent, instructed his attorney to claim damages
for injuries suffered by him in the collision. His attorney
thereupon, erroneously and in good faith, issued summons against the
second respondent. The summons was served, however, on the first
respondent, which was fully aware of the fact that the applicantâs
claim had been instituted against it in its capacity as insurer of
the said vehicle. When the mistake was discovered, the applicant
applied for an amendment of his summons and declaration in order to
substitute the name of the first respondent for that of the second
respondent. The application was opposed.
[26] In his judgment (at 14C-G) Hofmeyr J accepted
that an ordinary reasonable person would be confused by the identical
abbreviation
used for both respondents and held on a balance of
probabilities that the applicantâs attorney had intended in good
faith to issue
summons against the first respondent. The learned
judge held further that this was a case involving the incorrect
description of
the correct defendant, rather than the substitution of
one defendant by another. In this regard he stated (at 18H-19A):
In die omstandighede
deur my as bewese aanvaar, moet die huidige geval ook myns insiens as
ân geval van ân foutiewe beskrywing
van die juiste verweerder en
nie as ân geval van die vervanging van een verweerder deur ân
ander, beskou word nie. Die feit dat
die naam wat die applikant
gebruik het om die eerste respondent te beskryf, ook die naam van die
tweede respondent was, is ân faktor
wat myns insiens in die
omstandighede van hierdie saak van geen belang was nie. Niemand was
in werklikheid daardeur benadeel of mislei
nie. Dit was nie alleen
nooit bedoel om die tweede respondent te dagvaar nie, maar die
dagvaarding is ook in werklikheid nooit op
die verkeerde party
(naamlik die tweede respondent) bestel nie. Die eerste respondent het
verder nie alleen geweet dat die dagvaarding
wel vir hom bedoel was
nie, maar ook dat dit nie vir die tweede respondent bedoel was nie.
In response to an argument on behalf of the first
respondent that the amendment should not be granted because the claim
against the
first respondent had already prescribed, Hofmeyr J held
(at 19D-E) that the service of the summons on the first respondent
had in
fact interrupted prescription. The first respondent would
hence not be prejudiced by the granting of the amendment.
[27] The facts in the second case relied on by
Cleaver J (par 7 above), namely
Dawson and Fraser (Pty) Ltd v
Havenga Construction (Pty) Ltd
1993 (3) SA 397
(B), were
remarkably similar to those in the
Mutsi
case (par 25-26
above). The defendant (applicant) was erroneously cited in the
summons as "Dawson and Fraser (Pty) Ltd"
instead of "Dawson
and Fraser (Bophuthatswana) (Pty) Ltd". Default judgment was
subsequently granted against the former.
In an application for
rescission of such judgment Hendler J considered the facts contained
in the papers and held (at 401A), on a
balance of probabilities, that
the plaintiff (respondent) had intended to cite the latter, but had
in error omitted the bracketed
"Bophuthatswana". The court
had the power, the learned judge held (at 402H), to correct the
citation without substituting
the defendant. This would accord with
the relief granted in the
Mutsi
case. The application for
rescission was hence dismissed and the relevant amendment granted.
[28] The third matter relied on by Cleaver J (par
7 above) was
Devonia Shipping Ltd v MV Luis (Yeoman Shipping Co
Ltd Intervening)
1994 (2) SA 363
(C). The initial application,
brought by Devonia Shipping Ltd as applicant, was directed at placing
the respondent ship
Luis
under arrest in respect of the
applicant's claim for security arising from certain arbitration
proceedings. After its arrest, the
ship's owner applied for leave to
intervene as respondent, seeking that the
Luis
be released
forthwith on the ground that the applicant was not a registered
company in the United Kingdom. It would appear that its
name was in
fact âDevonia Shipping Agency Ltdâ, trading as âDevonia
Shipping Ltdâ. The applicant thereupon sought an amendment
to its
notice of motion to reflect the name of the applicant as âDevonia
Shipping Agency Ltdâ. Rose Innes J considered this application
for
amendment in the following terms (at 369E-370B):
The general rule is that
an amendment of a notice of motion, as in the case of a summons or
pleading in an action, will always be
allowed unless the application
to amend is
mala fide
or unless the amendment would cause an
injustice or prejudice to the other side which cannot be compensated
by an order for costs
or, in other words, unless the parties cannot
be put back for the purposes of justice in the same position as they
were when the
notice of motion which it is sought to amend was filed
⦠A material amendment such as the alteration or correction of the
name
of the applicant, or the substitution of a new applicant, should
in my view usually be granted subject to the considerations of
prejudice
to the respondent ⦠The risk of prejudice will usually be
less in the case where the correct applicant has been incorrectly
named
and the amendment is sought to correct the misnomer than in the
case where it is sought to substitute a different applicant. The
criterion in both cases, however, is prejudice which cannot be
remedied by an order as to costs and there is no difference in
principle
between the two cases ⦠The correction of a
misdescription of an applicant differs also from the cases where the
Courts have regarded
a summons or notice of motion as
ab initio
invalid because the plaintiff or applicant was a non-existent person
⦠The kind of irremediable prejudice which may cause a court
to
refuse an amendment may occur, for example, where the amendment would
deprive the other party of a defence which it would otherwise
have
set up â¦or where the substitution of the plaintiff or applicant
would release parties from liability for costs.
The learned judge referred with approval to the
Mutsi
case (par 25-26 above) and granted the amendment on the
basis "that the applicant has been misnamed in the notice of
motion
due to error". In this regard he was satisfied that there
was no indication that the amendment would cause the respondents any
prejudice or injustice.
[29] The issue of a misnomer, as opposed to a
substitution or change of parties, has been dealt with in a number of
further matters.
Reference may be made in this regard to
Greef v
Janet en ân Ander
1986 (1) SA 647
(T) at 654A-E, where Stegmann
J distinguished the
Mutsi
case on the basis that, in the case
before him, there had been a deliberate attempt to substitute one
persona
for another as defendant. See also
OâSullivan v
Heads Model Agency CC
1995 (4) SA 253
(W), in which the defendant
had been cited as âHeads Model Agencyâ instead of âHeads Model
Agency CCâ. A third party notice
was, however, served on the
correct defendant, which duly responded to it. This prompted Flemming
DJP to say the following (at 254H-J):
The third party notice
served as an invitation to the party. Who accepted the invitation and
who turned up at the party? It is none
other than âHeads Model
Agency CCâ. That is the legal person who understood the third party
claim to be intended for him. That
is the person who pleaded. That
person said that it is not the firm but a close corporation. When a
party realises that a pleading
is addressed to him and responds
accordingly, the situation seems to come within the scope of
Mutsi
v Santam Versekeringsmaatskappy Bpk en ân Ander
1963 (3) SA 11
(O). Whether or not it is a situation of a âmere misnomerâ, the
amendment then does not seek to change parties but to describe
with
accuracy the party which was successfully ⦠brought before Court.
[30] In
Friends of the Sick Association v
Commercial Properties (Pty) Ltd and Another
1996 (4) SA 154
(D)
the plaintiff was cited as a voluntary association in an action
claiming, as against the first defendant, transfer of a certain
property. The voluntary association had in fact ceased to exist in
1948, when it became an association not for gain, incorporated
as a
company limited by guarantee in terms of section 21 of the
Companies
Act
46 of 1926. When the point was taken that the correct
plaintiff was not before the court, the plaintiff applied for the
necessary
amendment. With reference to the decision in the
Cantamessa
case (par 23 above), Miles-Duner AJ held (at 157E-F):
I similarly take the
view that this is not a case of a mere misnomer and that the effect
of granting the amendment would be to introduce
a new
persona
in law as the plaintiff. This, in itself, upon the authorities to
which I have referred, is not a bar to the granting of the amendment
sought by the plaintiff - subject to considerations of prejudice to
the first defendant. The difficulty, however, is that the
substitution
sought relates to the plaintiff, and the
persona
described in the summons does not exist and did not exist at the date
of the issue of the summons.
The learned judge held further, with reference to
Van Heerden v Du Plessis
1969 (3) SA 298
(O) at 304A-C, that
the summons was a nullity in that the plaintiff was non-existent. In
the event both the application for amendment
and the main action were
dismissed with costs.
[31] In
Embling and Another v Two Oceans
Aquarium CC
2000 (3) SA 691
(C) at 699C-H Van Heerden J expressed
her disagreement with this finding and suggested that, on the facts,
the amendment was directed
simply at "a rectification of a
misdescription of the plaintiff". See also
Rossner v Lydia
Swanepoel Trust
1998 (2) SA 123
(W) at 127J-128A and
Luxavia
(Pty) Ltd v Gray Security Services (Pty) Ltd
2001 (4) SA 211
(W)
at 219H-I. I respectfully associate myself with this criticism which,
I believe, is fully justified. The reason for the amendment
was to
bring the pleadings in line with the fact that the voluntary
association in question had, as far back as 1948, converted to
a
section 21 company and was clearly the correct plaintiff. The effect
of the amendment would then simply be to correct the wrong
description of the plaintiff and not to introduce a new plaintiff in
the place of a non-existent one.
[32] In cases where the description of the
plaintiff or defendant is inaccurate or incomplete, a court will not
be averse to granting
an amendment to correct it, subject to the
usual provisos relating to prejudice of the opposing party. Thus in
Rosner v Lydia Swanepoel Trust
1998 (2) SA 123
(W) the
plaintiff was cited in the summons in the name of a trust instead of
in the name of the trustees in their official capacities.
A
magistrate granted an application to amend the summons to reflect the
trustees, in their official capacities, as plaintiffs. On
appeal
Goldstein J held (at 128E-G) that the amendment had changed "nothing
of substance". All it did was "to give
linguistic effect to
the legal rule that a trust lacks legal personality". The
plaintiff had not changed; only its description
had. In this regard
the learned judge found support in the
Devonia Shipping
case
(par 28 above), holding (at 127H) that the approach of Rose Innes J
appeared to be "eminently practical and sensible, eschewing
technicality and correcting procedural mistakes as cheaply as
possible".
[33] In a Full Bench appeal of the Witwatersrand
Local Division,
Du Toit v Highway Carriers and Another
1999
(4) SA 564
(W), Marais J inclined the same way. This was a case in
which the defendant was cited as a firm instead of as a company.
Inasmuch
as the summons had been served on the correct defendant,
which had pleaded thereto, denying that it was a firm, there was no
doubt
that it was indeed the intended defendant. In upholding an
appeal against the court
a quo
's refusal to grant an amendment
rectifying the description of the defendant in the summons, the
learned judge held (at 568D) that
the amendment was merely seeking to
correct a misnomer and not to substitute a new party. With reference
to the similar decisions
in
S A Dental Surgical Manufacturing Co v
Express Messenger Service
1935 CPD 336
and in the
O'Sullivan
case (par 29 above), the learned judge suggested (at 569J-570E) that
the following approach in cases of this nature would be appropriate:
The point that a 'wrong'
defendant has been cited not infrequently rears its head when the
defendant pleads, often after prescription
has run. It is often the
case that the intention of the plaintiff is to cite the entity
conducting a specific business at a specific
address and the
defendant served with the summons is in no doubt that it is indeed
the intended defendant. In such a case courts
should lean towards
allowing amendments which would correct inadvertent incorrect
descriptions and should not be astute to refuse
such amendments
involving the description of the defendant on pure semantic and
legalistic grounds which ignore the realities of
the situation as
perceived by the parties themselves. By so refusing an amendment at
the instance of the defendant the courts lend
themselves to an
exercise in formalism, the object of which is to enable a defendant
to escape a summons which it knows is directed
to it, and often to
wholly defeat a claim which has by then prescribed. Courts should not
formalistically ignore the fact, if such
it be, that the party now
sought to be accurately described was the party whom the plaintiff
intended to sue, even though the plaintiff
had only a vague or fuzzy
idea of the correct description of the defendant,
and
the
defendant itself knew very well that the summons was directed to it
when it was served. The approach of Gardener J in the
S A Dental
case and that of Flemming DJP in
O'Sullivan
's case seem to
me to be in accordance with both justice and common sense. The law
(and its practical application) should be the embodiment
of common
sense, as Denning MR once remarked. The more flexible approach of
Gardener J and Flemming DJP better serves the ends of
justice than
the formalistic approach so favoured by defendants, who see in it a
loophole enabling them to avoid adjudication upon
the merits of a
claim against them.
[34] I am in respectful agreement with this
approach and associate myself wholeheartedly with it. Not only is it
eminently logical
and fully commensurate with practical common sense,
but it also achieves what should be regarded as the main function of
the judiciary,
namely to do justice between the parties. Justice in
this sense necessarily encompasses fairness or equity and
reasonableness. It
also underscores the need for good faith to
subsist between the parties at all times. At the same time it
satisfies the expectations
of the community as to what law and
justice is all about. As such it complies in all respects with public
policy considerations.
It must be realised, however, that such
considerations may be applicable only in so far as the facts and
circumstances of the particular
case allow them to be applied.
Statutory limitations, such as those imposed by the rules relating to
the prescription of claims,
although they may ostensibly have a harsh
and unfair result, are also required, and indeed essential, for
putting an end to what
might otherwise become a tyranny of
interminable litigation. It is, indeed, policy considerations that
underlie limitations of this
nature and assist in creating legal
order and certainty. Inasmuch as the community requires such order
and certainty when the facts
and circumstances justify it, it cannot
be said to be in conflict with considerations of justice, fairness,
reasonableness or good
faith.
[35] This brings me to the judgment upon which
Hodes AJ (par 9 above) placed strong reliance, namely that of the
Supreme Court of
Appeal in
Associated Paint & Chemical
Industries (Pty) Ltd t/a Albestra Paint and Lacquers v Smit
2000
(2) 789 (SCA). The plaintiff (appellant) in that case issued summons
against the defendant (respondent) claiming payment for
goods sold
and delivered. In the summons the plaintiff was described as
"Associated Paints & Chemical Industries (Wynberg)(Pty)
Ltd
t/a Albestra Paints" but in the declaration its description was
"Associated Paint & Chemical Industries (Pty) Ltd
t/a
Albestra Paints". It was common cause that these descriptions
related to different companies. The plaintiff's claim was
duly served
on the defendant. In its plea, strangely enough, the defendant
admitted that the company described in the declaration
was the
plaintiff and that he owed it a certain sum of money. He requested,
however, that judgment be stayed pending the adjudication
of his
conditional counterclaim for damages against the plaintiff. When the
plaintiff later sought to amend the summons and subsequent
pleadings
to reflect its correct description, the defendant opposed the
amendment on the ground that, if it were granted, he would
be
deprived of his defence that the debt had prescribed. The court
a
quo
refused the application for amendment.
[36] On appeal
F H Grosskopf JA considered the effect of the amendment and stated
briefly as follows (in par 11 at 793I-794A):
Counsel for the
plaintiff submitted that the amendment sought was really only to
correct a misdescription of the plaintiff but in
my judgment this is
not the case of a mere misnomer. The effect of the amendment would be
to introduce a new plaintiff. (
L & G Cantamessa v Reef
Plumbers; L & G Cantamessa (Pty) Ltd v Reef Plumbers
1935
TPD 56
at 60.)
On this ground alone the present matter can be
distinguished from the case of
Mutsi v Santam
Versekeringsmaatskappy Bpk en 'n Ander
1963 (3) SA 11
(O) on
which counsel for the plaintiff relied. (Compare
Greef v Janet en
'n Ander
1986 (1) SA 647
(T) at 654A-F.) Prescription in any
event anticipated the amendment, as will be explained later.
In this regard the learned judge stated (in par 13
at 794C-D) that a plaintiff is generally not precluded by
prescription from amending
his claim, provided the debt remains the
same or substantially the same, and provided that prescription of the
debt originally claimed
has been "duly interrupted". In
support of this statement the learned judge referred (in par 13 at
794D-F) to a
dictum
of Eksteen JA in
Sentrachem Ltd v
Prinsloo
1997 (2) SA 1
(A) at 15J-16D:
Die eintlike toets is om
te bepaal of die eiser nog steeds dieselfde, of wesenlik dieselfde
skuld probeer afdwing. Die skuld of vorderingsreg
moet minstens uit
die oorspronklike dagvaarding kenbaar wees, sodat 'n daaropvolgende
wysiging eintlik sou neerkom op die opklaring
van 'n gebrekkige of
onvolkome pleitstuk waarin die vorderingsreg, waarop daar deurgaans
gesteun is, uiteengesit word ⦠So 'n wysiging
sal uiteraard nie 'n
ander vorderingsreg naas die oorspronklike kan inbring nie, of [om]
'n vorderingsreg wat in die oorspronklike
dagvaarding prematuur of
voorbarig was, te red nie, of om 'n nuwe party tot die geding te voeg
nie.
[37] Having referred to the
Park Finance
case
(par 24 above) and to
Neon and Cold Cathode Illuminations (Pty)
Ltd v Ephron
1978 (1) SA 463
(A), F H Grosskopf JA turned to the
facts of the case before him and stated (in par 16 at 795F-H):
In our case the only
real difference between the debt originally claimed and the debt
claimed in the proposed amendment is the identity
of the creditor who
seeks to enforce payment of the debt. Even if I assume that the debt
which the proposed new plaintiff now seeks
to claim by means of the
amendment is substantially the same debt which the plaintiff sought
to enforce in the original summons (a
questionable assertion), the
problem still remains whether prescription in respect of the original
debt had been duly interrupted.
In this connection the plaintiff is
faced with the difficulty whether the summons was issued by the
'creditor'.
In this regard the learned judge distinguished the
requirements of section 6(1)(b) of the previous
Prescription Act
>
18 of 1943 (the â1943 Actâ) and those of
section 15(1)
of the
current
Prescription Act
68 of 1969 (the â1969 Actâ). The
former provided that "extinctive prescription" would be
interrupted by "service
on the debtor of any process
whereby
action is instituted
", whereas the latter provided that the
running of prescription would be interrupted by "the service on
the debtor of any
process
whereby the
creditor claims
payment of the debt
" (my emphasis). This prompted the
learned judge to conclude (in par 18 at 796B-D):
In the present case a
summons was served on the defendant whereby the plaintiff claimed
payment of the debt. It subsequently transpired
that the plaintiff
was not the defendant's creditor. In an affidavit in support of the
plaintiff's application for the amendment
his Germiston attorney
conceded that the wrong company had been cited as the plaintiff in
the summons and that the defendant at no
time concluded any contract
or had any dealings with the plaintiff. It is common cause therefore
that a debtor-creditor relationship
between the defendant and the
plaintiff never existed. Consequently the summons did not constitute
a process whereby
the creditor
claimed payment of the debt.
The running of prescription in respect of the debt was accordingly
not interrupted by service of the
summons on the defendant. (
Standard
General Insurance Co Ltd v Eli Lilly (SA) (Pty) Ltd (FBC Holdings
(Pty) Ltd, Third Party)
1996 (1) SA 382
(W) at 385A-H and 387H;
and see
Grindrod (Pty) Ltd v Seaman
1998 (2) SA 347
(C) at
353A-354F.)
[38] It
would appear (par 36 above) that F H Grosskopf J relied on the
Cantamessa
case (par 23 above) for his finding that the effect
of the amendment in the case before him was not to correct a
misnomer, but to
introduce a new plaintiff. "On this ground
alone" he then proceeded to distinguish the
Mutsi
case
(par 25-26 above). It is most unfortunate that the learned judge was,
apparently, not referred to the decisions in the
Dawson
,
Devonia
,
O'Sullivan
or
Du Toit
cases (par 27-29
and 33 above). I am of the respectful view that, if he had had
occasion to consider the judgments in these cases,
he might well have
come to a different conclusion on the facts. I say this with
particular reference to the fact that both parties
at all relevant
times appear to have regarded the "proposed new plaintiff"
as the correct plaintiff. In terms of the said
decisions this might
indeed have been a case of an erroneous description of the correct
plaintiff, rather than a substitution of
the correct plaintiff for
the wrong one. This underscores once again the well- established
principle that each case must be considered
on its own merits and
with reference to its own peculiar facts and circumstances.
[39] If it
should be held that a plaintiff has been wrongly described and that
such description may be rectified, it follows that
the wrong
description of the creditor, for purposes of section 15(1) of the
1969 Act, may likewise be rectified. The difference in
wording
between section 15(1) of the 1969 Act and section 6(1)(b) of the 1943
Act (par 37 above) cannot, in my view, justify any
limitation in this
regard. To non-suit a creditor as plaintiff because his description
is not exactly correct would result in a degree
of formalism and
inflexibility reminiscent of the
ius strictum
of ancient Roman
law. This would certainly not accord with practical common sense or
with the community's perception of justice and
its concomitant values
(par 34 above). In view of his finding that the amendment in the case
before him had introduced a new plaintiff,
it was not necessary for F
H Grosskopf JA to consider what the position would have been if he
had held that it had merely rectified
an incorrect description of the
plaintiff.
[40] The
Associated Paint
case (par 35-39 above) has not been the last
word on the present issue. In
Embling and Another v Two Oceans
Aquarium CC
2000 (3) SA 691
(C), the first applicant, who had
sustained injuries in a fall on the premises of the Two Oceans
Aquarium in Cape Town, claimed damages
against it on the grounds of
alleged negligence. In the summons it was cited as âTwo Oceans
Aquarium CCâ. The summons was served
on a responsible employee at
the aquarium and the âTwo Oceans Aquarium Trustâ gave notice of
its intention to defend. In a special
plea subsequently filed, it
denied having traded as a close corporation and pleaded that any
claim against it as a trust had prescribed.
In an opposed application
to amend the summons and particulars of claim, Van Heerden J held (at
696B-E) that the wrong citation was
attributable to a
bona fide
error on the part of the applicant's attorney. After dealing with the
relevant facts and applicable law, the learned judge concluded
(at
698C-D) that, provided the defendant described in the amended summons
was "clearly
recognisable
from the original summons",
the amendment constituted "no more than the 'clarification of a
defective pleading' and not
the introduction of a
new
legal
entity as the defendant". See also the recent case of
Luxavia
(Pty) Ltd v Gray Security Services (Pty) Ltd
2001 (4) SA 211
(W).
[41] I return
now to the facts of the case before us. Despite the defendant's plea
(par 2 above) that it had paid ADM (UK), it is
clear from the
relevant invoice and proof of payment that it had in fact paid ADM
(Exports), thereby acknowledging that it was the
seller of the meat
products and hence the defendant's creditor. It was ADM (Exports)
that subsequently gave instructions, in two
separate faxes, to its
South African attorneys to institute action against the defendant.
This was in accordance with its expressed
intention and it had the
justifiable expectation that its attorneys would carry out its
instructions properly. That Mr van Gend could
have been confused in
carrying out the instruction is understandable in that, as pointed
out by Mr Gilham (par 3-4 above), ADM (Exports)
was a subsidiary of
ADM (UK) and both companies had the same registered address. Both
were Anglo Dutch Meats companies, distinguished
only by the bracketed
â(UK)â and â(Exports)â respectively. Van Gend clearly acted
in all good faith in issuing summons in
the name of the wrong
company. I have no hesitation in finding, on a balance of
probabilities, that ADM (Exports) was, at all relevant
times, the
seller of the meat in question and hence the defendant's creditor in
respect of the debt arising from the delivery thereof
to the
defendant. As a result of Van Gend's
bona fide
error, however,
it was not cited as the plaintiff in the ensuing summons and
subsequent pleadings.
[42] The
question is now whether or not the order granting leave to amend the
name of the plaintiff from ADM (UK) to ADM (Exports)
constituted a
rectification of an incorrect citation or a substitution of one legal
person for another. In this regard I have carefully
considered the
differing approaches of Cleaver J and Hodes AJ, with particular
reference to their discussion and assessment of the
relevant
authorities.
[43] Cleaver
J (par 7 above) was strongly influenced by the judgments in the
Mutsi
,
Dawson
and
Devonia
cases (par 25-28
above). He was of the view that the facts in the
Devonia
case
were "not greatly dissimilar from the facts in this case"
and found strong support in the judgment of Rose Innes J
for his
finding that ADM (UK) was a misnomer for ADM (Exports).
[44] Hodes
AJ, on the other hand, distinguished
Mutsi
and
Dawson
as cases dealing with the amendment of a defendant's name, whereas
prescription of a creditor's claim did not arise in the
Devonia
case. He found support for his contrary view in the
Park Finance
,
Thompson & Stapelberg
and
Standard General Insurance
cases (par 24 above), but relied especially on the
Associated
Paint
case (par 35-37 above) for his finding that ADM (UK) was
not a misnomer for ADM (Exports). Inasmuch as no debtor-creditor
relationship
between the defendant and ADM (UK) had ever come into
existence, service of the summons in the name of ADM (UK) did not, in
his view,
constitute a process whereby the creditor, ADM (Exports),
claimed payment of the debt. Accordingly service of the summons did
not,
he concluded, interrupt the running of prescription in respect
of the debt. This approach, with respect, does not take cognisance
of
the fact that the rectification of a misnomer in respect of a
plaintiff is not, and cannot be, restricted by the wording of section
15(1) of the 1969 Act. This was an aspect not considered in the
Associated Paint
case (par 39 above).
[45] After
consideration of the various arguments and authorities in support of
the opposing approaches to the current issue, I respectfully
incline
to the view that Cleaver J was indeed correct in finding that the
citation of ADM (UK) as plaintiff in the summons and subsequent
pleadings was no more than a misnomer for ADM (Exports). This was the
legal
persona
identified and accepted by both parties as the
seller of the meat products and hence as the true creditor and
plaintiff. The correction
of its description does not mean that it
was being substituted as plaintiff or creditor by a different entity
or
persona
. In principle it is irrelevant whether it was
wrongly described as an existing entity or as a non-existent one. In
either case the
question is simply whether the summons served on the
defendant was a âprocess whereby the creditor claims payment of the
debtâ
(par 37 above).
[46] I am in
respectful disagreement with Hodes AJ as to the points of distinction
raised by him between the present case and those
relied on by Cleaver
J. It is, in my view, irrelevant whether the misnomer relates to a
plaintiff or to a defendant. The applicable
principles remain the
same. It is likewise irrelevant whether prescription is an issue
raised by the defendant. It is merely a factor
to be taken into
account in deciding whether or not an amendment will cause the
opposing party prejudice or injustice.
[47] Accepting
the incorrect citation as a misnomer accords, in my respectful view,
with the need to take cognisance of the substance
rather than the
form of the process (
Neon and Cold Cathode Illuminations (Pty) Ltd
v Ephron
1978 (1) SA 463
(A) 471B). It also accords with
considerations of justice, fairness and reasonableness, while giving
due regard to the requirement
of good faith between contracting
parties and to the policy considerations underlying the justice
system (par 34 above). Peace-loving
and justice-seeking members of
the community do not take kindly to what they perceive as "technical"
defences that allow
debtors to escape liability and accountability.
Was
the Amendment Retrospective?
[48] This
issue arose during the course of argument on appeal, when the court
raised the question whether or not the amendment granted
by Cleaver J
had retrospective operation. If the amendment simply corrected a
misnomer, it would clearly have retrospective effect
and would
perforce date back to the day the summons was issued. If, however, it
had the effect of introducing a new plaintiff other
considerations
would arise.
[49] Mr
Whitehead for the appellant and Mr Berthold for the respondent
furnished supplementary submissions on this issue. The court
expresses its gratitude for the additional effort required for the
research and presentation of such submissions. It would appear
that
they are
ad idem
that, if the amendment had the effect of
rectifying a misnomer in the citation of the plaintiff, it would have
retrospective effect
(
nunc pro tunc
) and date back to the date
of issue of summons. In that event prescription could not be raised
as a defence. If, however, it had
the effect of introducing a new
plaintiff, it might operate retrospectively as a matter of procedural
law, but not necessarily as
a matter of substantive law. See
Levi
Strauss & Co v Coconut Trouser Manufacturers (Pty) Ltd
2001
(3) SA 1258
(SCA) at 1291C-H. Reference may also be made to
Dinath
v Breedt
1966 (3) SA 712
(T) at 717A-D;
Miller v H L Shippel &
Co (Pty) Ltd
1969 (3) SA 447
(T) at 453F-G and 454B;
Cordier v
Cordier
1984 (4) SA 524
(C) at 532G-I;
Mias de Klerk Boerdery
(Edms) Bpk v Cole
1986 (2) SA 284
(N) at 288C-G;
Barrie Marais
& Seuns and Another v Eli Lilly (SA) (Pty) Ltd and Others: In Re
Barrie Marais & Seuns and Another v Eli Lilly
(SA) (Pty) Ltd and
Another
1995 (1) SA 469
(W) at 472A-473B;
Wavecrest Sea
Enterprises (Pty) Ltd v Elliot
1995 (4) SA 596
(SEC) at 598D-H;
Stroud v Steel Engineering Co Ltd and Another
1996 (4) SA 1139
(W) at 1141E-1142C;
Brandon v Minister of Law and Order and
Another
1997 (3) SA 68
(C) at 75D-F. For present purposes it is
not necessary to deal with these authorities.
[50] In
view of my finding that the effect of Cleaver J's amendment was to
rectify a misnomer and not to introduce a new plaintiff,
it is clear
that the amendment operates retrospectively and that a possible
defence of prescription does not arise.
CONCLUSION
[51] It
follows from the aforesaid considerations that the appeal must
succeed and that the order of Hodes AJ, upholding the special
plea of
prescription, falls to be set aside.
[52] In the
event I would make the following order:
The
appeal is upheld with costs.
The
order of the court
a quo
upholding the special plea of
prescription is set aside and replaced by the following:
"The special plea of prescription is dismissed with costs."
D
H VAN ZYL
Judge of
the High Court of South Africa
I agree.
W J LOUW
Judge of
the High Court of South Africa
I agree.
S J
NGWENYA
Judge of
the High Court of South Africa