CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 184/2022
In the matter between:
DION RADEMEYER Applicant
and
THOMAS IGNATIUS FERREIRA Respondent
Neutral citation: Rademeyer v Ferreira [2024] ZACC 24
Coram: Zondo CJ, Madlanga ADCJ, Bilchitz AJ, Gamble AJ, Majiedt J,
Mathopo J, Mhlantla J and Theron J.
Judgments: Mathopo J (minority): [1] to [56]
Majiedt J (majority): [57] to [94]
Heard on: 9 May 2024
Decided on: 25 October 2024
Summary: Prescription Act 68 of 1969 — sale agreement — same cause of
action — breach of contract — specific performance — right to
claim damages
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa, Eastern Cape Local Division, Gqeberha):
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Supreme Court of Appeal is set aside and substituted
with the following:
“(a) The appeal is upheld.
(b) The order of the High Court dismissing the defendant ’s special
plea is set aside and replaced with an order upholding the special
plea.”
4. The respondent is ordered to pay the costs of the applicant in this Court,
the Supreme Court of Appeal and the High Court, including the costs of
two counsel, where so employed.
JUDGMENT
MATHOPO J (Bilchitz AJ concurring):
Introduction
This application for leave to appeal raises the question whether the respondent’s
claim became prescribed under the Prescription Act.1 The issues surface in the
application for leave to appeal against the judgment and order of the
Supreme Court of Appeal. That court upheld the decision of the High Court, Eastern
Cape Division, Gqeberha (High Court), which dismissed a special plea of prescription
concerning a claim for damages resulting from the cancellation of a written sale
agreement (sale agreement).
1 68 of 1969.
MATHOPO J
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The application is brought by Dion Rademeyer (Mr Rademeyer), a businessman
who resides in Gqeberha. It is opposed by the respondent, Thomas Ferreira
(Mr Ferreira), a retired businessman also residing in Gqeberha.
Background
Mr Ferreira was the registered owner of Erf 723 Theescombe, Port Elizabeth.2
Prior to 2008, Mr Ferreira was developing this property (“mother erf”) by subdividing
it into separate erven with the purpose of developing an upmarket residential estate to
be known as “Heatherbank Manor”.
Upon the success ful subdivision, the mother erf was subdivide d into five
separate properties. On 27 August 2008, the parties concluded a sale agreement for one
of the subdivided properties. Mr Ferreira sold the property described as Erf 4097,
Theescombe, in the Nelson Mandela Metropolitan Municipality, Port Elizabeth,
Province of the Eastern Cape, in extent 1119 square metres (the property) to
Mr Rademeyer.
The essential terms of the sale agreement, amongst others, were as follows:
(a) The purchase price of the property was R950 000;
(b) Mr Rademeyer would make payment of the deposit of R190 000 within
seven days from the date of signing the agreement;
(c) The balance of the purchase price was to be paid by Mr Rademeyer on
date of registration of transfer;
(d) Mr Rademeyer would be liable for all transfer costs and duties and was to
sign all required documents to give effect to the registration of the transfer
of the property; and
(e) In the event that Mr Rademeyer failed to fulfil his obligations under the
sale agreement, and fail ed to rectify any failure after be ing given five
2 The erf was registered thus in the Deeds Office, under Gqeberha’s previous name.
MATHOPO J
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days’ written notice to do so, Mr Ferreira would be entitled to sue for
specific performance.
On 2 September 2008, Mr Rademeyer made payment of R190 000 as a deposit
to Mr Ferreira’s attorneys which was invested in an interest -bearing account.
The interest which accrued f rom this amount was paid to Mr Ferreira, in terms of the
sale agreement. However, Mr Rademeyer did not fulfil all the essential obligations of
the sale agreement. In particular, he did not sign all the transfer documents required to
effect transfer; furnish guarantees for payment of the balance of the purchase price , or
pay the transfer costs and duties.
During 2011, and upon major development of the property, Mr Ferreira was in a
position to proceed with the registration of transfer of the property , as per the
sale agreement. He communicated with Mr Rademeyer, requesting that he fulfil his
obligations in terms of the sale agreement. This was met with no success and , as a
result, Mr Ferreira launched an application in the High Court requesting, among others,
an order for specific performance, and in the event of Mr Rademeyer failing to comply
with his obligations within five days of the service of the specific performance order,
cancellation of the sale agreement and damages. In response thereto, Mr Rademeyer
filed a counter-application seeking an order that Mr Ferreira be ordered to pay him the
sum of R190 000, together with interest thereon calculated at the prevailing legal rate,
from 3 September 2008 to date of payment.
Litigation history
High Court
Mr Ferreira sought a declaratory order compelling Mr Rademeyer to comply
with his obligations in terms of the sale agreement. On 7 August 2012, Pickering J
ordered Mr Rademeyer to sign all transfer documents required to effect registration of
transfer of the property (Pickering J order). In the event that Mr Rademeyer failed to
comply with the obligations of the sale agreement after five days of the service of the
MATHOPO J
5
order upon him, Mr Ferreira would be entitled to cancel the sale agreement and claim
damages. Relevant to these proceedings, the following was contained in the order:
“That in the event of the Respondent failing to comply with his obligations within five
days of service of this order upon the Respondent, cancellation of the said agreement
of sale and damages.”
Subsequent to and in terms of the Pickering J order, Mr Rademeyer was requested to
execute the transfer documents and pay the balance of the purchase pri ce, which he
elected not to.
In July 2015, Mr Ferreira cancelled the sale agreement and served a notice of
cancellation on Mr Rademeyer. During 2016 , under the same case number as the
Pickering J order, Mr Ferreira launched a further application claiming damages , as a
result of Mr Rademeyer’s failure to comply with the Pickering J order. In response,
Mr Rademeyer filed a notice in terms of rule 30(1) of the Uniform Rules of Court3 and
submitted that the Pickering J order was a final order which had disposed of all the relief
set out in the first application. Further, he contended that this application was distinct
from the initial application and ought to have been brought under a new case number as
opposed to a continuation of the proceedings.
As a result, Mr Ferreira withdrew this application and instituted action
proceedings in the High Court under a new case number in which he sought damages
in the sum of R854 182.20, pursuant to the cancellation of the agreement, and as a result
of Mr Rademeyer not complying with the Pickering J order for specific performance.
Mr Rademeyer, in his defence, raised a special plea and submitted on the basis
of the Pickering J order having been served on him on 15 August 2012, and it being
common cause that he failed to comply, th at Mr Ferreira’s claim for damages , if any,
3 Rule 30(1) relates to irregular proceedings and provides that a party to a cause in which an irregular step has
been taken by any other party may apply to court to set it aside.
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should then have begun to run on 23 August 2012. He relied on section 11(d) of the
Prescription Act and pleaded that Mr Ferreira should have instituted action proceedings
within three years from 23 August 2012, whereas Mr Ferreira only instituted this action
on 18 April 2016. Further, in the plea , Mr Rademeyer contended that the cancellation
of the sale agreement happened on 23 August 2012, by virtue of the court order, and
not on 1 July 2015, which is when Mr Ferreira opted to formally cancel the agreement.
Mr Rademeyer further pleaded that the claim for accrued interest in the amount
of R422 466.30 was incompetent and denied liability for that interest or any, at all. He
argued that Mr Ferreira had a duty to mitigate his damages by selling the property to
another interested buyer.
Mr Ferreira then filed a replication to the special plea and raised two defences
(in the alternative) namely; that the service of the application papers in the Pickering J
order interrupted prescription with regards to the claim for damages, and, alternatively,
that the right to claim damages stem med from an order of court which constitute d a
judgment debt in terms of section 11(a)(ii) of the Prescription Act, the prescription
period thus being 30 years.
By agreement, and in terms of the Uniform Rules of Court ,4 the parties agreed
for the matter to be determined by way of a stated case before Govindjee AJ.
Mr Rademeyer contended that, when in terpreting the phrase “ debt” in terms of
section 11(d) of the Prescription Act, the court order did not constitute a judgment debt
in terms of section 11(a)(ii). On the contrary, Mr Ferreira argued that the Pickering J
order interrupted prescription and constitute d a debt in terms of section 11(1) of the
Prescription Act. However, if the court d id not find for him on that score, then the
4 According to rule 33(4):
“if, in any pending action, it appears to the court mero motu that there is a question of law or
fact which may conveniently be decided either before any evidence is led or separately from
any other question, the court may make an order directing the disposal of such question in such
manner as it may deem fit and ma y order that all further proceedings be stayed until such
question has been disposed of, and the court shall on the application of any party make such
order unless it appears that the questions cannot conveniently be decided separately.”
MATHOPO J
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Pickering J order constitute d a judgment debt in terms of section 11(a)(ii) of the
Prescription Act and, thus, the claim for damages had not prescribed.
After hearing argument , the High Court dismissed the special plea of
prescription and held that “the action instituted is to proceed in respect of the
computation of the Plaintiff ’s damages”.5 Dissatisfied with the judgment,
Mr Rademeyer approached the Supreme Court of Appeal for leave to appeal.
Supreme Court of Appeal
Before the Supreme Court of Appeal, Mr Ferreira abandoned the argument that
the Pickering J order constituted a judgment d ebt, with the result that there were only
two issues for determination by that court, namely, (a) whether service of the notice of
motion in 2012 constituted “a process whereby the creditor claims payment of the debt”
within the meaning of section 15(1) of the Prescription Act and, (b) whether the
issuance of summons under a different case number amounted to the prosecution of “the
process in question ” as contemplated by section 15(4) of the Prescription Act.
Section 15 of the Prescription Act is headed “Judicial interruption of prescription” and
reads as follows:
“(1) The running of prescription shall, subject to the provisions of sub section (2),
be interrupted by the service on the debtor of any process whereby the creditor
claims payment of the debt.
(2) Unless the debtor acknowledges liability, the interruption of prescription in
terms of subsection (1) shall lapse, and the running of prescription shall not be
deemed to have been interrupted, if the creditor does not successfully prosecute
his claim under the process in question to final judgment or if he does so
prosecute his claim but abandons the judgment or the judgment is set aside.
(3) If the running of the prescription is interrupted as contemplated in
subsection (1) and the debtor acknowledges liability, and the creditor does not
prosecute his claim to final judgment, prescription shall commence to run
5 Ferreira v Radem eyer, unreported judgment of the High Court of South Africa, Eastern Cape Division,
Gqeberha, Case No 1256/15 (23 February 2021) (High Court Judgment) at para 20.
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afresh from the day on which the debtor acknowledges liability or, if at the
time when the debtor acknowledges liab ility or at any time thereafter the
parties postpone the due date of the debt, from the day upon which the debt
again becomes due.
(4) If the running of prescription is interrupted as contemplated in sub section (1)
and the creditor successfully prosecutes his claim under the process in question
to final judgment and the interruption does not lapse in terms of subsection (2),
prescription shall commence to run afresh on the day on which the judgment
of the court becomes executable.
(5) If any person is joined as a d efendant on his own application, the process
whereby the creditor claims payment of the debt shall be deemed to have been
served on such person on the date of such joinder.
(6) For the purposes of this section, ‘process’ includes a petition, a notice of
motion, a rule nisi, a pleading in reconvention, a third-party notice referred to
in any rule of court, and any document whereby legal proceedings are
commenced.”
The Supreme Court of Appeal, relying on its earlier judgment in Cadac6 which
endorsed Allianz,7 made a number of findings:
(a) it held that the basis for the action for damages is the same as the
application for specific performance , because they stem from the same
facts.8 Accordingly, the right to claim damages was said to be part of that
order;
(b) Mr Ferreira sought to quantify the damages suffered as a consequence of
Mr Rademeyer’s conduct, when he failed to meet the obligations of the
sale agreement;
(c) it held further, that the service of the application constituted a crucial
“step” in enforcing a claim for payment of a debt;
(d) it endorsed the ratio in Allianz to the effect that “to return to the expression
‘under the process in question ’, clearly a final executable judgment will
6 Cadac (Pty) Ltd v Weber-Stephen Products Company [2010] ZASCA 105; 2011 (3) SA 570 (SCA) (Cadac).
7 Cape Town Municipality v Allianz Insurance Co Ltd 1990 (1) SA 311 (C) (Allianz).
8 Rademeyer v Ferreira [2022] ZASCA 92; 2022 JDR 1993 (SCA) (Supreme Court of Appeal judgment).
MATHOPO J
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be obtained ‘under’ a process where process and judgment constitu te the
beginning and the end of one and the same action.”;9 and,
(e) concluded that—
“the service of the notice of motion in the application for a declaratory order,
alternatively damages, in 2012 had the effect of interrupting the running of prescription
as provided for section 15(1) of the Act in relation to the damages claim in this case .
Prescription stands interrupted unless the judgment is abandoned or set aside on appeal.
The judgment of Pickering J was never abandoned.”10
Consequently, the Supreme Court of Appeal dismissed the appeal with costs.
Before this Court
Applicant’s submissions
Mr Rademeyer submits that leave should be granted to appeal against the whole
of the judgment of the Supreme Court of Appeal, as there are reasonable prospects that
this Court will come to a different conclusion to that of the Supreme Court of Appeal,
and the application raises an arguable point of law of general public importance.
Mr Rademeyer contends that the appeal concerns the interpretation o f the relevant
provisions of the Prescription Act, which have been held to play a vital role in bringing
certainty to the process of adjudication. Further, it implicates the right of access to
courts and thus raises a constitutional issue.
Mr Rademeyer emphasises that the High Court and the Supreme Court
of Appeal incorrectly approached the matter on the basis that essentially the same
“cause of action” was being pursued in a subsequent action, as had been the case in the
original application. He submits that the new action was not merely the same process
under a different case number , but it constituted entire ly separate and new legal
proceedings. He argues that the effect of the ruling is that Mr Ferreira would have had
9 Allianz above n 7 at 333G.
10 Supreme Court of Appeal judgment above n 8 at para 23.
MATHOPO J
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an indefinite period of time to institute the new action, which would effectively never
become prescribed, provided it was based upon the sam e cause of action . Th is is
fundamentally at odds with established principles relating to the law of prescription.
Mr Rademeyer contends that Allianz and Cadac are distinguishable and do not
support Mr Ferreira’s case. The contention advanced is that the distinguishing feature
in this case is that the debt only arose subsequent to the judgment and order of
Pickering J, whereas, in Allianz and Cadac, the relief sought was based on the same
cause of action that was instituted in the same proceedings. The contention continued
that, upon failure of Mr Rademeyer to perform in terms of the order, a fresh breach of
contract ensued as the basis for the cancellation.
Mr Rademeyer interprets section 15(2) of the Prescription Act to provide for the
interruption of prescription and that such interruption shall lapse, and the running of
prescription shall not be deemed to have been interrupted, if the creditor does not
successfully prosecute his claim under the process in question to final judgment.
Mr Rademeyer says Mr Ferreira did not pursue the relief claimed in the prior
application to final conclusion because he abandoned and withdrew that application.
Therefore, the current proceedings were new and not instituted within the three-year
period and were thus hit b y prescription. In conclusion, Mr Rademeyer submits that
Mr Ferreira’s claim has prescribed by virtue of the provisions of section 10(1) read with
section 11(d) of the Prescription Act in that a period of three years passed between the
date when the debt was due and payable, subsequent to cancellation ( five days after
service of the order on Mr Rademeyer) and when Mr Ferreira instituted the action
proceedings seeking to recover the debt.
Mr Rademeyer contends that the debt in this matter comprises the contractual
damages pursuant to cancellation of the contract and that it only arose at the earliest
upon cancellation of the contract , as per the definition of “debt” in Makate,11
11 Makate v Vodacom (Pty) Ltd [2016] ZACC 13; 2016 (4) SA 121 (CC); 2016 (6) BCLR 709 (CC) (Makate).
MATHOPO J
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Desai N.O.12 and Off-Beat Holiday Club .13 He contends that where specific
performance has been ordered and not complied with, the innocent party may, either in
the same proceedings or in subsequent proceedings, obtain relief that cancellation and
damages be ordered.
Mr Rademeyer took issue with the “ double-barrelled approach”, a procedural
practice followed pertinently in Shembe,14 and—
“[P]ermits a plaintiff-seller to elect to pursue the first of these rights, i.e., to demand
implementation of the agreement and obtain judgment therefor, but further permits him
in the same action to ask the Court, should the defendant fail to comply with the Court’s
judgment for implementation of the agreement, to set aside the agreement and grant
consequential relief.”15
Mr Rademeyer argues that this approach, which has been followed in many other
cases, is out of touch with reality and must be jettisoned. In the alternative, he contends
that this procedural practice ought to be limited to an order for cancellation only and
not extended to instances where a claim for damages is sought.
Respondent’s submissions
Mr Ferreira denies that there are reasonable prospects that this Court will come
to a different conclusion. He asserts that the Supreme Court of Appeal was correct in
applying Allianz and that the interpretation put forward by Mr Rademeyer is incorrect.
He submits that the decisions in Cadac and Peter Taylor & Associates 16 support the
findings of the Supreme Court of Appeal, as there is an essential link between the two
12 Desai N.O. v Desai NNO [1995] ZASCA 113; 1996 (1) SA 141 (A) (Desai N.O.).
13 Off-Beat Holiday Club v Sanbonani Holiday Spa Shareblock Limited [2017] ZACC 15; 2017 (5) SA 9 (CC) ;
2017 (7) BCLR 916 (CC) (Off-Beat Holiday Club).
14 Custom Credit Corporation (Pty) Ltd v Shembe [1972] ZASCA 28; 1972 (3) SA 462 (A) (Shembe).
15 Id at 470.
16 Peter Taylor & Associates v Bell Estates (Pty) Ltd [2013] ZASCA 94; 2014 (2) SA 312 (SCA).
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proceedings. He contends that the “debt” that served before the court in the motion
proceedings is the same in the action for quantification of damages.
Mr Ferreira contends that service of the notice of motion on Mr Rademeyer in
the initial application interrupted prescription in respect of Mr Rademeyer’s cause of
action, including the damages claim. The claim for damages related to the same cause
of action which was interrupted by prescription in 2012.
Mr Ferreira therefore disputes Mr Rademeyer’s assertion that his cause of action
was separate and distinct from the cause of action in the previous application and should
have been brought under a new case number, and not as a continuation of the previous
proceedings. He maintains that in the current action he sought to quantify and claim his
damages, which was pleaded in the following terms – “as a consequence of the
cancellation” and that, although the action was issued under a new case number, it was
linked to the original application of 2012 , and arose from Mr Rademeyer’s
non-compliance with the order of Pickering J.
Mr Ferreira contends that Mr Rademeyer misinterprets the “debt” as
contemplated in the Prescription Act, which was pertinently addressed in Allianz, and
that the judicial interruption of the debt in terms of section 15(1) of the Prescription Act
occurred when the original application was instituted in 2012. He contends that the
entire debt included the claim for rectification, specific performance, and the alternative
claim for cancellation and damages flowing from Mr Rademeyer’s non -compliance
with the court order.
Mr Ferreira does not dispute that the action proceedings were instituted more
than three years after the order of Pickering J, but emphasises that it was unnecessary
to institute proceedings for damages within three years of non-compliance. As judicial
interruption had already taken place in 2012 , it was therefore unnecessary to interrupt
prescription again.
MATHOPO J
13
Mr Ferreira submits that he could not have succeeded in his damages claim
without first establishing Mr Rademeyer’s liability for such damages by a declaratory
order. Therefore, the action proceedings instituted in 2016, sought to quantify his claim
for damages consequent upon the cancellation of the deed of sale and arising from
Mr Rademeyer’s non-compliance with the order of Pickering J. In essence, service of
the initial application in 2012 constituted a “step” in the enforcement of the debt.
Issues
The following issues arise in this application:
(a) whether the basis of the claim in the application proceedings in 2012 was
the same as the basis of the claim in the current proceedings;
(b) whether the application proceedings were a step in the enforcement of a
claim for the payment of a debt; and
(c) whether the application proceedings disposed of some element of the
claim which arise in the current matter.
Jurisdiction and leave to appeal
In order for this Court to entertain this matter, the applicant must show that the
matter is a constitutional matter or that it raises an arguable point of law of general
public importance which ought to be considered by th is Court.17 The latter subsection
provides for three requirements which all need to be met before the Court will have
general jurisdiction to hear a particular matter.
This matter raises important issues relating to the extent of the right of access to
courts in the context of extinctive prescription. This means that prescription laws ought
to be interpreted and applied in a manner that is consistent with constitutional principles,
more specifically, the right of access to courts as enshrined in section 34 of the
Constitution, and as developed through case law culminating in the decision in
17 Section 167(3)(b)(i) and (ii) of the Constitution.
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Mdeyide.18 Cases in which prescription laws, when applied strictly, will infringe on the
fundamental rights of a person to re dress through courts are those that will engage the
jurisdiction of this Court. These will be instances that involve an application of the
periods of prescription in a disproportionate way between vulnerable people or groups
in society, drawing in broader constitutional rights related to more than mere procedure.
Extinctive prescription limits the right of a party to pursue legal recourse under
section 34 of the Constitution. 19 Therefore, t o some extent, matters of this nature
generally engage this Court ’s jurisdiction. It cannot be ignored , though, that the
questions that arise in this matter are not necessarily novel and have already been
established. However, given the effect of extinctive prescription on the right of access
to courts , I am of the vie w that this matter engages this Court ’s constitutional
jurisdiction.
Even if the matter raises a constitutional issue or an arguable point of law, this
Court has previously pronounced that leave may be refused if it is not in the interests of
justice for this Court to hear the appeal. 20 Further this Court has found that prospects
of success are an important factor in deciding whether to grant leave to appeal. 21 In
considering leave to appeal, the prospects of success are of crucial importance. In doing
so, the different interpretations of the relevant sections in Chapter III of the
Prescription Act, as submitted by the parties, must be interrogated.
Though it cannot be disputed that the point of law does not transcend the narrow
interests of the parties, the interests of justice and the constitutional implications bearing
18 Road Accident Fund v Mdeyide [2010] ZACC 18; 2011 (1) BCLR 1 (CC); 2011 (2) SA 26 (CC) (Mdeyide).
19 Le Roux v Coetzee & Seuns [2023] ZACC 46; 2024 (4) SA 1 (CC) ; 2024 (4) BCLR 522 (CC) (Le Roux) at
para 25; Mtokonya v Minister of Police [2017] ZACC 33; 2017 (11) BCLR 1443 (CC) ; 2018 (5) SA 22 (CC)
(Mtokonya) at para 9; National Union of Metalworkers of SA obo Fohlisa v Hendor Mining Supplies (A Division
of Marschalk Beleggings (Pty) Ltd) [2017] ZACC 9; 2017 (7) BCLR 851 (CC) at para 8; and Mdeyide above n 18
at para 138.
20 S v Boesak [2000] ZACC 25; 2001 (1) SA 912 (CC); 2001 (1) BCLR 36 (CC) at para 12.
21 Fraser v Naude [1998] ZACC 13; 1998 (11) BCLR 1357 (CC); 1999 (1) SA 1 (CC) at para 7.
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upon extinctive prescription , and its relation to the right of access to courts, weigh in
favour of leave to appeal being granted by this Court.
Analysis
The crux of the matter is whethe r the initial proceedings are a step in the
enforcement of debt payment and whether prescription is considered to be interrupted
at that point. Section 15(1) of the Prescription Act provides that the running of
prescription is interrupted by the service o n the debtor of any process whereby the
creditor claims payment of a debt. This provision serves to avoid the extinction of a
creditor’s claim by the effluxion of time, on condition that the creditor takes timely legal
action in enforcing his or her right. There is, in the present matter, such a process in the
form of Mr Ferreira’s initial application for specific performance, resulting in the
Pickering J order, which required Mr Rademeyer to perform in terms of the sale
agreement. The subsequent litigation which Mr Ferreira has pursued is a step in pursuit
of the self -same debt. For purposes of prescription, the question is whether legal
proceedings were commenced which relate to the same set of facts and flo w from the
same legal source. The initial application satisfies this requirement.
When the debt became due in this case requires this Court ’s attention , as it
featured in Mr Rademeyer’s argument – this question requires a consideration of when
the damages were sustained. Mr Rademeyer, relying on Makate,22 Desai N.O.23 and
Off-Beat Holiday Club,24 argued that the damages were only sustained at the earliest
upon cancellation of the sale agreement and that the debt thus became due then. The
meaning of “debt” was considered in Allianz,25 and approved in judgments such as
Cadac,26 Makate, Desai N.O., and Off-Beat Holiday Club. These cases establish that a
debt extends to any liability arising under a contract, which includes both the primary
22 Makate above n 11.
23 Desai N.O. above n 12.
24 Off-Beat Holiday Club above n 13.
25 Allianz above n 7.
26 Cadac above n 6.
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performance and the subsequent damages claim. Mr Ferreira’s claim for damages flows
from precisely the same breach of contract dealt with in the original application for
specific performance. It follows that the damages were sustained as a result of a breach
of the contract and not as a result of non-compliance with the Pickering J order. While
a breach (that is a failure to comply with the contractual obligations after being called
upon to do so) triggers damages, a court order legitimises a claim for damages .
Prescription was, therefore, interrupt ed by the service of the original application
because it was a step taken to enforce the debt owed by Mr Rademeyer in terms of the
sale agreement.
As recognised above, prescription limits the right of access to courts.
Consequently, circumstances in whic h individuals are deprived of access to court s
should be interpreted in a restrictive manner. That, in turn, requires that the notion of
debt be interpreted to extend to all causes of action that flow from the same legal
complaint. This means recognising that any legal process that was instituted from the
same legal complaint and same facts interrupts prescription.
I accept as correct the submission that the declaratory order by Pickering J which
established liability, and the potential further action for the quantification of damages
constitute one cause of action under a two -stage process. Hence, the interruption of
prescription was effected. It is difficult to visualise it any other way. A valid agreement
must be established in the first place before one can proceed and succeed in subsequent
proceedings for damages.
Mr Rademeyer’s interpretation of section 15(2) of the Prescription Act, which
he argues mandates that the interruption of prescription lapses if the c reditor does not
successfully prosecute the claim to final judgment , is misplaced. To demonstrate the
fallacy in Mr Rademeyer’s argument, one has to look at the debt and the process in
terms of the act under which the debt was pursued, since the underlyin g debt was not
altered. What accrued to Mr Ferreira by virtue of the Pickering J order was a claim in
respect of which the running of prescription had been interrupted by the service of the
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application. In my view, subsequent motion proceedings for claim s for damages were
not in any way affected.
The applicability of Allianz and Cadac
It remains to consider whether the Supreme Court of Appeal was correct in
following Allianz and Cadac. Counsel for Mr Rademeyer advanced a number of
arguments in support of his main submission. They all f lounder because the y raise
issues which are not supported by the authorities. The submission as a whole indicates
that counsel not only sought to distinguish the above cases as misplaced but stridently
argued that the double -barrelled procedure outlined in Shembe,27 which Mr Ferreira
followed, should be abandoned and be jettisoned.
In Allianz, the facts were these. Allianz Insurance had concluded a contract with
the Cape Town Municipality and a company that was constructing an undersea pipeline
for the municipality. In terms of the contract, Allianz Insurance agreed to indemnify
the municipality and the company for any loss or damages suffered as a result of damage
to the pipe line. The pipeline was damaged on two different occasions as a result of
stormy seas . The municipality and the company instituted actions against
Allianz Insurance, seeking orders declaring Allianz Insurance liable to pay them in
respect of loss or damages suffered as a result of the damage to the pipeline. The actions
were instituted in the year after the dama ge occurred (damage to pipeline occurred in
May and July 1984, and actions were instituted in March and August 1985). Three
years elapsed before the matter could be heard. Allianz Insurance amended its plea and
introduced a special plea, and by then three years had elapsed since the date of damage
to the pipeline. The effect of the special plea was that the debt to indemnify the
claimants for loss or damage had since prescribed as the three -year prescription period
had expired.
27 Shembe above n 14.
MATHOPO J
18
Relying on the first part of the dictum of Howie J, that the declarator action in
Allianz was only concerned with establishing liability and not exacting payment for the
damages, Mr Rademeyer contends that this invariably means that a further action must
be instituted to cover elements of the claim that were not previously considered in the
declaratory order. He urged upon us that Allianz is distinguishable and does not support
Mr Ferreira’s case. It is important to state that this submission is not correct. A further
reading of Allianz indicates that Howie J qualified the statement by stati ng that any
further litigation for the determination of damages would be founded on the same cause
of action on which the declaration was based. 28 In essence, the court in Allianz held
that a final executable judgment obtained under a process constitutes the beginning and
the end of the same action.29 Further—
“1. It is sufficient for the purposes of interrupting prescription if the process to be
served is one whereby the proceedings begun thereunder are instituted as a step
in the enforcement of a claim for payment of the debt.
2. A creditor prosecutes his claim under that process to final, executable
judgment, not only when the process and the judgment constitute the beginning
and end of the same action, but also where the process initiates an action,
judgment in which finally disposes of some elements of the claim, and where
the remaining elements are disposed of in a supplementary action instituted
pursuant to and dependent upon that judgment.”30
The principle supports Mr Ferreira’s contention that subsequent actions for damages
consequent upon an order for specific performance are not separate proceedings , but a
continuation of the initial legal action.
The case of Allianz helps elucidate the understanding of judicial interruption of
prescription. In Allianz, what was brought to the fore was that a process leading up to
28 Allianz above n 7 at 331G-J.
29 Id at 334A-E.
30 Id at 334H-I.
MATHOPO J
19
a final judgment is a single continuum.31 This view supports Mr Ferreira’s case where
the initial application for specific performance and the later claim for damages are all
part of the same continuous legal process aimed at enforcing the same debt.
Mr Rademeyer’s argument that Cadac is not relevant also flounders in many
respects. For context, the court in Cadac dealt with an urgent application to set aside a
warrant and for damages. The warrant was set aside and the damages enquiry was
postponed sine die (indefinitely). In Cadac, the court reasoned that connected legal
proceedings arising from identical contra ctual obligations and facts ought not to be
considered different for purposes of prescription. This judgment reinforces the notion
that Mr Ferreira’s action for damages is essentially inextricably linked with the initial
application for specific performance as both emanate from actions to redress the breach
of the same sale agreement.
The Supreme Court of Appeal confirmed that a plaintiff may have the issue of
liability decided before pursuing the quantification of damages. It held that the motion
proceedings for the setting aside of the warrant were accordingly regarded as a step in
the enforcement of a claim for a debt. In the present matter, the Supreme Court
of Appeal also confirmed the ratio in Cadac that subsequent motion proceedings
instituted were a step in the enforcement of a claim for a debt . Tellingly, Mr Ferreira
did not seek an order postponing the determination of quantum sine die in the
declaratory action before Pickering J.
The Supreme Court of Appeal thus correctly held that the cause of action for
damages is the same as that of the application for specific performance. Because both
were based on the same set of facts, the right to claim damages was incorporated in the
initial order in favour of Mr Ferreira, and the service of this application was an element
of executing a claim for the payment of the same debt.
31 Allianz above n 7 at 333G-H.
MATHOPO J
20
Any attempt by Mr Rademeyer to distinguish this matter from Cadac and Allianz
should be rejected as the distinction is purely artificial. Unlike in Cadac, what
transpired in this case is that the court confirmed that the plaintiff may have the issue
of liability decided before pursuing a claim for the quantification of damages.
Subsequent motion proceedings instituted were a step in the enforcement of a claim for
that debt.
The contention that the claim for damages was incomplete when the declaratory
application was filed and, further, that the declaratory action and the order of Pickering J
did not interrupt prescription, was based on two misconceptions. Firstly, it was argued
that a judgment determining the existence of liability cannot perpetually preserve the
plaintiff’s claim to determine the quantum of damages in respect of that liability.
Secondly, that the failure to comply with the Pickering J order resulted in a new breach,
and Mr Ferreira ought to have instituted fresh proceedings arising from the said breach.
This argument is misplaced. The double -barrelled procedure is still part of our
law. Mr Ferreira did not seek an order postponing the determination of quantum sine
die in the declaratory application before Pickering J. Indeed, courts routinely separate
and adjudicate issues of liability and postpone the question of quantum which arose in
the same litigation. This is most often found in claims for personal injury arising from
motor vehicle accidents and professional negligence. The fact that the quantum
determination will be dealt with much later does not affect the claim . What actually
transpired in this case is not novel , but is an enforcement of the double -barrelled
procedure enumerated in many cases. This procedure affords a defaulting party the
opportunity to remedy the breach and perform according to his or her contractual
obligations. If, h owever, after this opportunity the defaulting party still refuses to
perform, as in this case, the aggrieved party is entitled to cancel the agreement and claim
damages. A link between the two claims exists and cannot be wished away.
The fact that Mr Ferreira sued for damages does not represent a different cause
of action, but arises from the same obligation which Mr Rademeyer undertook in terms
MATHOPO J
21
of the written agreement of sale. Mr Rademeyer’s obligations are of the same scope
and nature. That he was sued for damages later in no way detracts from the basic cause
of action, namely, that he was sued based on the written agreement of sale. The effect
of this is that the right sought to be enforced in the previous application was
substantially the same as the one which is the subject matter of the present proceedings,
in that the parties were the same, the amount claimed was the same, and the liability,
therefore, arose out of the same cause of action and written agreement of sale. I think
it is necessary t o underscore that Mr Ferreira’s cause of action was not only
foreshadowed, but clearly comprehended and specifically pleaded in the previous
litigation and, therefore, could not have prescribed. Mr Rademeyer could not have been
under any misapprehension t hat it was a completely new cause of action based on an
entirely new set of facts. The service of the application interrupted the running of
prescription.
In the present case, Mr Rademeyer is still being sued on the self-same agreement.
This position is analogous to the factual scenario in Allianz. The fact that Mr Ferreira
sued for specific performance in no way means that he abandoned or failed to exercise
his right to sue for damages. He was entitled to sue for specific performance and,
alternatively, damages in the event of non -compliance with a n order for specific
performance. Once the first application was instituted, it had the effect of interrupting
prescription.
There is yet another reason why Mr Rademeyer’s case is unsustainable. He
relied on Tembani32 in support of his contentions. This case is distinguishable and does
not support his argument. Tembani dealt with two separate causes of actions, where
finalisation of the Law Society matter was not a necessary “delictual ingredient” of the
claim for damages. In this matter, Mr Ferreira sought a declaration for specific
performance and, in the absence of such performance, damages. Mr Ferreira’s cause of
action was founded on the principles of the double-barrelled procedure. The alternative
32 President of the Republic of South Africa v Tembani [2024] ZACC 5; 2024 JDR 1862 (CC); 2024 (9) BCLR
1152 (CC).
MATHOPO J / MAJIEDT J
22
claim for damages which was premised on the further assumption of non -compliance
with the court order was interrupted by service of the first application. There is an
inextricable link between the Pickering J order and the later action instituted in the
matter for damages. The Pickering J order has not been set aside, nor abandoned.
I have had the opportunity to consider the second judgment of my
Brother, Majiedt J. Even if I disagree with him, I have to recognise the force and quality
in its reasoning. However, after careful reflection, I find that nothing in that judgm ent
compels me to revisit or alter my conclusion on the outcome of this appeal.
I agree with the High Court and Supreme Court of Appeal that Mr Ferreira’s
previous action before Pickering J interrupted prescription and that the debt ha s not
prescribed. If I had commanded the majority, I would have granted the application for
leave to appeal, and refused leave to ap peal with costs, including the costs of two
counsel.
MAJIEDT J (Zondo CJ, Gamble AJ, Madlanga J, Mhlantla J, Theron J concurring):
I have read the judgment of my Colleague Mathopo J, (first judgment) and, while
I agree that this matter engages our jur isdiction and that it is in the interests of justice
that we hear the appeal , I reach a different outcome on the merits . In respect of
jurisdiction, the central issue is that of prescription. There are many cases that have
come before this Court where it was called upon to decide whether a litigant’s claim
had prescribed and this Court held that it had jurisdiction in such matters. 33 In this
case, this Court is called upon to decide whether Mr Ferreira’s claim for damages had
prescribed by the time he ins tituted the proceedings in the High Court that have led to
these proceedings, and therefore this Court has jurisdiction.
33 See, among others, Mtokonya above n 19 at para 9 and Le Roux above n 19 at para 25.
MAJIEDT J
23
This Court grants leave to appeal when it is in the interests of justice to do so.
The factors that the Court takes into account in determining whether it is in the interests
of justice to grant leave include whether there are reasonable prospects of success for
the appeal, the importance of the issues involved in the appeal, whether the issues go
beyond the interests of the parties bef ore the Court and will also affect a large section
of society. This list is not exhaustive. In my view there are reasonable prospects of
success in this matter. The legal issues raised are important and the impact of the
judgment in this case will go bey ond the parties before the Court and the matter is of
great importance. It is thus in the interests of justice to grant leave to appeal.
I regrettably part ways with my Colleague on the merits of the appeal. I would
uphold the appeal with costs, inclusive of costs of two counsel. First, a simplified,
sweeping synopsis of, I daresay, the well-established law. Prescription of a debt starts
running as soon as the debt becomes due, or when knowledge of the debt becoming due
can reasonably be expected of the creditor. Prescription is judicially interrupted when
process initiating a lawsuit for recovery of that particular debt is issued and served on
the debtor. In our law, breach of contract is remediable through two mutually exclusive
options –– a claim for specific performance that seeks, notwithstanding the breach, to
keep the contract alive; or cancellation of the contract and a claim for damages.34
When an election is made to s ue for specific performance, axiomatically that
lawsuit cannot possibly be a basis for the judicial interruption of the running of
prescription in respect of cancellation and a damages claim in respect of the same debt
arising from breach of the contract. Judicial interruption of the running of prescription
of the latter can self -evidently only occur when the election is made to cancel and sue
for damages. And, plainly, where summons has been issued and served to determine
liability in respect of damages for breach of contract within the three -year prescription
period, it matters not that you sue after the three -year period to determine the quantum
of the damages in respect of that same claim. This is because the later claim for the
34 Christie and Bradfield Christie’s Law of Contract in South Africa 8 ed (LexisNexis, South Africa 2019) at 642.
MAJIEDT J
24
assessment of damages is a continuation of the first proceedings to determine liability.
Proceeding then from the general to the specific – what are the facts in this case and
how do these legal principles apply to them?
I gratefully adopt my Colleague’s comprehensive factual narrative and will
repeat facts only for purposes of clarification, context or emphasis. In particular, it is
necessary to have regard to the specific dates of key events. This case concerns the
judicial interruption of prescription. The crucial aspect for consideration, and the
primary difference between my Colleague and I, is the precise status and ultimate legal
effect of the order made by Pickering J (Pickering J order) by agreement between the
parties, and the events that followed. As I shall endeavour to demonstrate, these events
place this matter on a different footing to both Allianz35 and Cadac.36 Those cases are
distinguishable and, in relying on them for their reasoning, both the first judgment and
the Supreme Court of Appeal err. The distinc tion is not merely “artificial” as the first
judgment would have it.37
The following salient facts bear repetition. The first breach of the sale agreement
occurred on 13 September 2011. Thus, prescription began running at that time in
respect of the damages which Mr Ferreira may have suffered as a consequence of this
initial breach. It is common cause, however, that the damages then incurred (and the
question of prescription in respect thereof) is not the subject-matter in issue here. When
Mr Rademeyer failed to fulfil all the essential obligations of the sale agreement, 38 and
failed to respond to a demand to do so, Mr Ferreira launched an application in the
High Court requesting, amongst others, an order for specific performance. Mr Ferreira
also sought a further order that, in the event of Mr Rademeyer failing to comply with
his obligations within five days of the service of the specific performance order,
35 First judgment [42] – [53] with reference to Allianz above n 7.
36 Cadac above n 6.
37 First judgment at [49].
38 By not signing all the transfer documents required to effect transfer; furnish guarantees for payment of the
balance of the purchase price or pay transfer costs and duties.
MAJIEDT J
25
cancellation of the sale agreement and damages. Mr Ferreira therefore elected, in the
first instance, to keep the sale agreement alive and to insist that Mr Rademeyer upholds
his part of the bargain. The obvious corollary is that an election was irrevocably
exercised by Mr Ferreira not to cancel. Damages were therefore in Mr Ferreira’s
contemplation as a future event, contingent upon non -compliance with the Pickering J
order for specific performance and, then, cancellation of the sale agreement.
The Pickering J order was issued on 7 August 2012. Service of that order on
Mr Rademeyer occurred on 15 August 2012. Mr Rademeyer remained non-compliant
and Mr Ferreira consequently formally cancelled the sale agreement and served a notice
of cancellation on Mr Rademeyer. Cancellation in accordance with the Pickering J
order occurred, and damages were thu s suffered, by Mr Ferreira on 23 August 2012,
that is, five days after service of the Pickering J order. Therefore, an action for those
damages had to be instituted within three years from that date, that is, by no later than
23 August 2015.
On 17 February 2016, under the same case number of the Pickering J order ,
case number (239/12), Mr Ferreira launched a further application claiming damages, as
a result of Mr Rademeyer’s non-compliance with the Pickering J order. In response,
Mr Rademeyer filed a rule 30 notice as adumbrated in the first judgment. As a result,
Mr Ferreira withdrew this application on 16 March 2016 and, on 18 April 2016,
instituted action proceedings in the High Court under case number (1256/16). In that
matter, he sought damages pur suant to the cancellation of the agreement as a result of
Mr Rademeyer not complying with the Pickering J order for specific performance. The
date of service of this action does not appear in the papers, but the special plea filed by
Mr Rademeyer is dated 28 June 2016.
MAJIEDT J
26
As the first judgment explains, Mr Rademeyer’s special plea of prescription was
met by a replication with a defence, amongst others,39 that the service of the application
papers that ultimately led to the Pickering J order had interrupted the running of
prescription in the damages claim. In essence, the first judgment holds that this defence
is good in law, while I hold the contrary vie w that the special plea ought to have been
upheld, as Mr Ferreira’s damages claim had prescribed. The central issue is whether
the proceedings before Pickering J constitute the same cause of action as the damages
claim.
Of cardinal importance is the fact that when the matter came before Pickering J,
Mr Ferreira had plainly not suffered any damages as yet and he therefore had no extant
damages claim at that time. It follows that Mr Ferreira could not obtain an order at that
time relating to the liability for damages which had not yet been sustained.
Self-evidently, there was thus no claim in respect of which prescription could have
commenced running. Any claim for damages then would have been premature, since
Mr Ferreira was seeking specific performance of the agreement, and , self-evidently,
could not approbate and reprobate with a simultaneous damages claim at that time.
Enforcement and cancellation of a contract are two mutually exclusive options available
to an innocent party who must make an election as to the relief it seeks – that much is
trite in our law. 40 The debt for damages (not specific performance) arose only
subsequent to the order made by Pickering J, when Mr Rademeyer failed to perform as
ordered. That failure was a fresh breach of the contract which constituted the basis for
cancelling the contract, and prescription began running five days after the Pickering J
order was served on Mr Rademeyer (which, as stated, occurred on 15 August 2012).
At the time when Mr Ferreira was seeking specif ic performance of the sale
agreement before Pickering J, the sale had not yet been cancelled. The order by
39 Mr Ferreira later abandoned the second defence that the order of Pickering J constitutes a judgment debt in
terms of section 11(a)(ii) of the Prescription Act which provides that the prescriptive period for a judgment debt
is 30 years, and nothing more need be said about it.
40 Christie and Bradfield above n 34 at 675; Van Huyssteen et al Contract: General Principles 6 ed (Juta,
Cape Town 2020) at 385 and 397.
MAJIEDT J
27
Pickering J was for specific performance within five days of service of the order,
“failing which cancellation and damages”. Damages, if any, were thus suffered by
Mr Ferreira only when, five days after service of the order, Mr Rademeyer’s
non-compliance persisted. On the objective facts, cancellation only occurred on
23 August 2012, five days after the service of the Pickering J order on Mr Rademeyer.
Moreover, and importantly, Mr Ferreira has accepted that cancellation of the contract
occurred in terms of the order of Pickering J upon the failure of Mr Rademeyer to
comply with the order of specific performance within the period provided in the ord er,
and did not pursue the pleaded cancellation of July 2015.41 Only at that point did
Mr Ferreira’s right to damages come into existence.
It is necessary to restate some well -established legal principles. First, it bears
emphasis that a debt is the correlative of a right of action, when one is extinguished, so,
too, is the other. 42 It is important to draw a clear distinction between the contractual
remedies of specific performance and cancellation and concomitant damages. In the
case of the former, the claim is based on the contract itself and breach of the contract is
not a prerequisite for the claim. 43 It is the primary remedy for breach of contract and
simply seeks to ensure that the other contracting party performs as she undertook to
do.44
Prescription in respect of a damages claim for breach of contract commences to
run at the earliest from the time of breach of contract. 45 A claim for specific
performance can prescribe separately from a claim for damages. This is so, since upon
41 Vol. 1, Para. 7.3 of the Particulars of Claim at p 35, lines 9 to 11.
42 Makate above n 11 at para 195, citing Evins v Shield Insurance Co Ltd [1980] ZASCA 3;1980 (2) SA 814 (A)
(Evins) at 842E-F; see also Oertel v Direkteur van Plaaslike Bestuur 1983 (1) SA 354 (A).
43 Van Huyssteen et al above n 40 at 429.
44 Id.
45 Id at 479. I do not agree with the contrary view that breach of contract does not give rise to a new obligation.
See in this regard Lubbe and Murray Farlam and Hathaway: Contract – Cases, Materials and Commentary 3 ed
(Juta, Cape Town 1988) at 414 . On that approach, prescription in respect of a claim for damages due to breach
of contract starts running as soon as the original right to performance becomes due; see also De Wet and Van Wyk
Die Suid-Afrikaanse Kontraktereg en Handelsreg 5 ed (Butterworths, Durban 1992) at 294.
MAJIEDT J
28
breach with resultant damages, a new separate personal right arises so that the innocent
party is restored to the status quo ante, that is, the position she would have been in had
the breach not occurred. On the other hand, a right to claim specific performance
originates u pon conclusion of the contract, and prescription of the debt would
commence running as soon as it is due –– that is not the case in respect of a damages
claim where prescription would only start running when the breach occurs. If a debtor
is non-compliant with a court order to make specific performance, it constitutes a further
breach of the contract and a judgment creditor may seek an order from the court
cancelling the agreement and for an award of damages. 46 The so -called
“double-barrelled” approach per mits a plaintiff to claim specific performance and, in
the alternative, an order cancelling the agreement in the event that the debtor fails to
comply with the order for performance within the period stipulated by the court order.
That is what happened here.
It bears repetition that, if we accept as we must, by the time of the Pickering J
order, Mr Ferreira had not yet suffered any damages, he could not at that time obtain an
order relating to the liability for damages.47 There may arguably be a good reason why
this is so – the duty resting upon an innocent party to mitigate its damages only arises
once the damages are suffered. Conceivably, there may then even be a full mitigation
of damages and an order for liability and payment of damages would be premature, and
may well lead to the “guilty” party being deprived of the right to raise mitigation of
damages as a defence. Thus, in the present instance, Mr Ferreira may have been able
to sell the property for a higher purchase price, in which event there wo uld be no
damages, or for a substantial purchase consideration, resulting in a reduced sum of
damages. Of course, a guilty party may even seek to prove that no loss has been
suffered, but that can only happen at the time that damages are alleged to have b een
suffered. It is furthermore theoretically possible that a party may be deprived of the
46 Shembe above n 14 at 469EE.
47 Compare Coetzee v SA Railways and Harbours 1933 CPD 565 at 576: “I know of no case which goes as far as
to say that a person who has as yet sustained no damage, can sue for damages which may possibly be sustained in
the future”.
MAJIEDT J
29
potential protection of the three -year period of prescription, because in effect then the
claim would never prescribe and summons could be issued many years and eve n
decades later.
On behalf of Mr Rademeyer, it was vigorously contended before us that the
double-barrelled approach should be discarded. The thrust of that contention embraces
the arguable aspects raised in the previous paragraph, that a judgment on the question
of liability for prospective damages, or for the calculation of prospective damages,
would deprive the party against whom the order was made of the opportunity to contest
liability on the basis that no loss had been suffered, alternatively, to ra ise the issue of
the mitigation of damages. The argument was further that it would also deprive a party
of the potential protection of the prescriptive period of three years as its effect would be
that the claim could never prescribe and summons could be issued decades later. While
the argument is, on the face of it, rather attractive, I do not adopt any position in that
regard, as the matter can in my view be disposed of within the purview of the
double-barrelled approach.
The case law, discussed next, supports the viewpoint that at the time of the
Pickering J order, Mr Ferreira had not yet suffered damages and could not then obtain
an order in respect of liability for damages. Evins48 concerned a defence of prescription
in a damages claim in the context of the “once and for all” rule. Mrs Evins, the
appellant, had sustained serious bodily injuries in a collision between the vehicle in
which she was being conveyed as a passenger, drive n at the time by her husband who
died in the collision, and another vehicle. Mrs Evins had initially claimed compensation
in a single combined summons (first summons), first for her own injuries and, second,
for loss of support arising from the death of h er husband. It was common cause that,
while Mrs Evins had complied with the antecedent legislative prescripts in respect of
48 Evins above n 42 at 835A.
MAJIEDT J
30
her own claim, there was no compliance therewith as far as her loss of support claim
was concerned.49
Some five years after the col lision, Mrs Evins caused a second summons to be
issued in which she claimed only loss of support due to her husband’s death in the
collision. In the particulars of claim she alluded to the delivery of the first claim form,
the service of the first summons and the delivery of the second claim form. Shortly
thereafter, she amended her first summons by the deletion of all references to the claim
for loss of support.
The respondent,50 Shield Insurance, raised prescription in a special plea to the
second summons, in respect of the claim for loss of support. The two actions were later
consolidated by order of court. The question was what the effect of the service of the
first summons had on the loss of support claim. The argument for Mrs Evins was that
a single negligent act by the insured driver had caused both her bodily injuries and the
death of her husband. She was therefore entitled to sue in one single action for both
sets of damages, her own and those incurred as her husband’s dependant, for loss of
support. In the premises, she argued, the service of the first summons had interrupted
the prescription of the entire (two -pronged) claim since there can be no piecemeal
prescription of a debt and interruption of prescription of only part of a debt. That
argument was rejected in the trial court on two bases, first, that the loss of support claim
was a right distinct from the right to claim damages for bodily injuries where both are
caused by the same negligent act and, second, that in any event, the loss of support claim
was not interrupted by service of the first summons, since that claim had not been
prosecuted to final judgment as required by the Act.
On appeal, Corbett JA noted that the central concept of a cause of action and the
enquiry whether different claims constitute parts of a single cause of action or separate
49 This entailed the claimant in te rms of section 25(1) of the Prescription Act submitting a claim form (the
so-called MVA 13 form), prior to issuing summons.
50 Defendant at the trial.
MAJIEDT J
31
causes of action were of particular significance in regard to the application of the
so-called “once and for all” rule and the related questions of res judicata (the matter has
been decided) and prescription. The rule applied mostly in common law actions for
damages in delict, but also in claims for damages for breach of contract, 51 and its
purpose is to deter a multiplicity of actions in a single cause of action and to ensure that
there is an end to litigation.52
In answering the central question in the case, Corbett JA conducted an extensive
analysis of what the essential criterion of a cause of action is, 53 and concluded that,
although there is some overlap, the facta probanda (the facts required to be proven) a
bodily injury claim differs substantially from those in a loss of support claim. The two
causes of action may also conceivably arise at different times, although they may flow
from the same event (for example, where the breadwinner dies later, after the accident)
and may otherwise lead to serious anomalies, were they to be regarded merely as facets
of one single indivisible cause of action. Thus, Corbett JA ultimately concluded that a
claim for damages for bodily injuries was disti nct from a loss of support claim, even
though they may both arise from a common occurrence. In respect of the case itself,
the Court held that the first summons encompassed two causes of action. The claim for
loss of support was, however, not properly an d effectively prosecuted due to
non-compliance with the prescripts in section 25 of the Act. The first summons had not
interrupted prescription of that claim and it had thus become prescribed.
The following dictum of Corbett JA in Evins is instructive:
“Where a creditor has two rights, or causes, of action then there are two corresponding
debts. When it comes to the judicial interruption of prescription in terms of section 15,
then, if the process seeks to enforce two debts (or causes of action), it will only interrupt
prescription in respect of both if it is effective as a means of commencing legal
51 Corbett JA in Evins above n 42 at 835A-D citing, among others, Shembe above n 14 at 472.
52 Id.
53 With reference to, among others, Mckenzie v Farmers’ Co-operative Meat Industries Ltd 1922 AD 16.
MAJIEDT J
32
proceedings in respect of both. If it is effective only in respect of one, then this will
not enure for the benefit of the creditor in respect of the other”.54
That dictum authoritatively sets out the position regarding judicial interruption
of prescription – for prescription to be judicially interrupted in respect of a damages
claim, there must be an extant claim for damages, that is, a right enforceable against the
debtor in respect of which extinctive prescription is running, when the initial
proceedings are instituted. Before dealing with Allianz and Cadac, which are central to
the mistaken reasoning of the first judgment and that of the Supreme Court of Appeal,
it is useful to have regard to an earlier case, Neon and Cold Cathode Illuminations,55
cited by Howie J in Allianz. That case concerned the question whether the appellant
company’s right of action against the respondent, a surety and co-principal debtor, had
become prescribed under the previous Prescription Act.56 The respondent had
originally incorrectly been sued as lessee. The claim was dismissed for that reason and
a new summons, the subject of the prescription issue, was t hen issued. Trollip JA
explicated the assessment whether actions for declaratory orders would involve the
same cause of action as that on which the further litigation would be founded as
follows—
“[I]n order to effectively interrupt prescription . . . . there must . . . . be (a) a right
enforceable against the debtor in respect of which extinctive prescription is running,
and, (b) a process served on that debtor instituting legal proceedings for the
enforcement of . . . . ‘the same or substantially the sa me right as would otherwise be
rendered unenforceable by lapse of time.’”57
Against that backdrop, I discuss Allianz. My colleague has dealt
comprehensively with the facts of that case. 58 It is necessary to add that the plaintiffs
54 Evins above n 42 at 842C-F.
55 Allianz above n 7 at 333B-C citing Neon and Cold Cathode Illuminations (Pty) Ltd v Ephron 1978 (1) SA 464
(A) (Neon and Cold Cathode Illuminations).
56 18 of 1943.
57 Neon and Cold Cathode Illuminations above n 55 at 470H to 471A.
58 At [43] and following.
MAJIEDT J
33
there first sought decla ratory orders in 1985 (the first plaintiff in August 1985 and the
second plaintiff in March 1985) that the defendant (Allianz) was liable in terms of the
insurance policy for all loss or damage to the works as a result of a storm, and was
legally liable to make payment in terms of the policy for that loss or damage. But the
debt had become due, and prescription had already begun running, before then, on
7 October 1984. The Court’s judgment and dicta of Howie J, referred to by Mathopo J,
must be understood within this context. In dismissing Allianz’s special plea of
prescription, the Court did so on the basis that service of the action for declaratory relief
in 1985 had interrupted the running of prescription of the damages claim.
With reference to Allianz,59 my Colleague finds that the case is in pari materia
(on the same subject/matter) with this one and “supports Mr Ferreira’s contention that
subsequent actions for damages consequent upon an order for specific performance are
not separate proceedings, but continuations of the initial legal action”. Therefore, finds
Mathopo J, “[t]he Supreme Court of Appeal thus correctly held that the cause of the
action for damages is the same as that of the application for specific performance”. 60 I
disagree.
As I see it, the primary distinction between this case and Allianz (and also Cadac,
which I will discuss presently) is that there, when the plaintiff in Allianz sued for loss
incurred due to storm damage, the plaintiff’s right to damages had already accrued. The
damages suit was a first step to recover the damages. What remained was only the
quantification of the damages. The portion of the claim in respect of which the
prescription defence was raised was instituted at the same time as the proceedings th at
interrupted the running of prescription. But here, as stated, when Mr Ferreira instituted
proceedings against Mr Rademeyer which culminated in Pickering J’s order of
7 August 2012, Mr Ferreira did not, as yet, have an existing claim for damages. At that
stage, Mr Ferreira was merely seeking an order for specific performance of the sale
59 At [44] with reference to Allianz above n 7 at 334H-I.
60 At [48].
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agreement. The sale had not yet been cancelled and there was in law and in fact no
basis for a claim for damages at that juncture.
I must in passing add that the parti es’ agreement to proceed before Pickering J
on the basis of a stated case appears to have been poorly considered. The matter is
complicated by the ambiguous and opaque order of Pickering J, who ordered specific
performance within five days of service of t he order, failing which, cancellation and
damages. That was pursuant to a draft order placed before the High Court, which
Pickering J then accepted and made an order of court. At the hearing in this Court,
counsel had great difficulty explaining what exactly the order meant and what its effect
was on the commencement of the running of prescription.
The special plea that Howie J had to adjudicate in Allianz, bore some similarity
to the factual scenario here, save in respect of the important point of distinction to which
I have already alluded. The Court explained:
“The special plea highlights the distinction between a claim for a declarator and a claim
for payment of money. The crux of it is that defendant's liability, if any, was to pay
money, which debt was, in terms of section 11(d) of the Prescription Act 68 of 1969
extinguished by the passing of more than three years after 7 October 1984. By that
date, says defendant, the debt had become due and plaintiffs knew the facts from which
the debt arose.”61
The Court thus had to decide whether the subsequent proceedings for the
quantification of damages would be a continuation of the initial proceedings. As stated,
the Court’s dismissal of Allianz’s special plea of prescription, was based on the fact that
service of the declaratory action in 1985 had interrupted the running of prescription of
the damages claim. Howie J emphasised:
“Plaintiffs are quite patently not seeking to obtain payment of part of the indemnity
now and part later. They are seeking to enforce their rights to the indemnity. If further
61 Allianz above n 7 at 317C-D.
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proceedings are instituted by plaintiffs in due course to exact payment from defendant
pursuant to judgment in the present case, such further action will be necessary by reason
of the fact that the present action is only concerned with the issue of liability, and the
further action will cover elements of plaintiffs’ claim not canvassed in the current
action. Conversely, those elements of the claim covered in the present matter will be
res judicata hereafter. But the two actions together will still deal only with one cause
of action. Although the relief sought in the present case differs from the relief which
will, on the above supposition, be sought in the second action, the precise form of the
relief and, if it is monetary relief, the quantum thereof, are not elements of the cause of
action.”62
The Court in Allianz emphasised that the cause of action in the initial proceedings
and the subsequent proceedings were the same and cited the passage from
Neon and Cold Cathode Illuminations.63 The important part of that dictum of
Trollip JA is that there must be a right enforceable against the debtor in respect of
which extinctive prescription is running before prescription can be effectively
interrupted. That is absent in the present instance, for the reasons I have advanced.
Cadac concerned the wrongful seizure of Cadac’s kettle grills at the instance of
Weber-Stephens, based on alleged trademark infringement and counterfeiting. In the
High Court, Cadac sought, amongst others, an order setting aside the warrant under
which the grills had been seized and an order for an inquiry into damages. The
High Court found that the warrant of seizure had been obtained irregularly and set it
aside. That Court postponed the prayer for damages sine die. Cadac only pursued the
damages claim three years and two days after the judgment and order of the High Court
relating to the setting aside of the warrant. Weber -Stephens raised prescription as a
defence.
On appeal, one of the issues was the nature of Cadac’s claim in the High Court.
This was because Weber-Stephens contended that at the time when the main application
62 Id at 332H-333A.
63 Allianz above n 7 at 333B-D with reference to Neon and Cold Cathode Illuminations above n 55.
MAJIEDT J
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was launched, the right to damages had not yet accrued, and that the proceedings for
the recovery of damages (albeit in the form of an inquiry into damages) were
accordingly premature. This argument was based on the supposition that the warrant
was not void, but voidable, and that a cause of action for wrongful attachment of goods
could only arise once the warrant had been set aside – until then it remained valid.
The Supreme Court of Appeal held that “the cause of action for an interdict and
one for damages is the same. Only the nature of the relief differs.” 64 The Court
concluded that the action for d amages had accrued when the kettles were seized and
that, once the warrant was set aside, it was set aside with retrospective effect. The
application for an inquiry into damages had thus not been premature:
“[T]he claim relating to damages in the applica tion to set aside the warrant was not
premature. The notice of motion was a process whereby proceedings were instituted
as a step in the enforcement of a claim for payment of a debt. This means that the
running of prescription was interrupted in terms of section 15(1) of the
Prescription Act 68 of 1969”.65 (Emphasis added).
This case is different – as I have said, at the stage when the matter came before
Pickering J, there was no extant claim for damages in respect of which prescription had
already started running. It bears repetition that any claim for damages at that time would
have been premature, since Mr Ferreira was seeking specific performance of the
agreement and self -evidently could not approbate and reprobate with a simultaneous
claim for damages at that time. Hypothetically speaking, had Mr Ferreira complied
with the order of specific performance of Pickering J, there would have been no
cancellation and consequently no right to claim damages based on such cancellation.
Therefore, Mr Ferreira’s claim had prescribed, since more than three years had passed
between the date when the debt was due and payable subsequent to cancellation (which
64 Cadac above n 6 at para 18.
65 Id at para 19.
MAJIEDT J
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had occurred five days after service of the order on Mr Rademeyer) and the date when
Mr Ferreira had issued summons for the recovery of the debt.
The double -barrelled approach does not assist Mr Ferreira. The point of
departure in this regard is that the double -barrelled approach is limited to an order for
cancellation and not recognised as appropriate fo r an order for damages (whether it is
in respect of liability for prospective damages or a specific sum of prospective
damages). That limitation accords with trite principles of contract law enunciated
earlier. On that approach, in the present case, what was left after the Pickering J order
was not merely the quantification of the damages claim. To establish the existence of
a claim for damages, Mr Ferreira would still have had to prove a further breach of
contract, that is:
(a) service of the order on Mr Rademeyer;
(b) that Mr Rademeyer did not thereafter timeously comply with his
obligations under the sale agreement; and
(c) that as a result, the sale agreement was cancelled.
I reiterate that Mr Ferreira’s right of action only arose subsequent to the issue of
the Pickering J order. At the time that the breach described by the terms of the order
occurred, Mr Ferreira acquired a right of action to claim damages arising from such
cancellation. The fact that o ur Courts have recognised the procedural mechanism of a
double-barrelled approach does not have the effect that Mr Ferreira could, through legal
process in the case before Pickering J which concerned specific performance and not
damages, interrupt prescription insofar as his claim for damages was concerned.
In sum then, the debt in this matter constitutes the contractual damages arising
from the cancellation of the contract. As defined by this Court in Makate,66 the
obligation to pay the debt, and the corr esponding right to claim or receive payment,
only arose at the earliest upon cancellation of the contract, which, as stated, was on
66 Makate above n 11 at paras 85, 86 and 93.
MAJIEDT J
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23 August 2012. The fresh breach and consequent damages could only in fact and law
arise after the Pickering J order. On first principles, Mr Ferreira’s conditional election
to cancel, in the event of non -compliance with the order of Pickering J, only became
available and effective when Mr Rademeyer failed to comply. That means that the
institution of proceedings before Pick ering J, under case number (239/2012), could
never serve to interrupt prescription of that debt as the debt did not exist then or even
later, at the time of the Pickering J order. The judicial interruption that did in fact occur,
was of the debt relating to specific performance and not in respect of damages. That is
the crucial point of distinction between the first judgment and this one. In the premises,
the prescription point raised in Mr Rademeyer’s special plea was good and
Mr Ferreira’s claim for damages has prescribed.
For these reasons, I would grant leave and uphold the appeal with costs,
including the costs of two counsel.
I make the following order:
1. Leave to appeal is granted.
2. The appeal is upheld.
3. The order of the Supreme Court of Appeal is set aside and substituted
with the following:
“(a) The appeal is upheld.
(b) The order of the High Court dismissing the defendant ’s special
plea is set aside and replaced with an order upholding the special
plea.”
4. The respondent is ordered to pay the costs of the applicant in this Court,
the Supreme Court of Appeal and the High Court, including the costs of
two counsel, where so employed.
For the Applicant:
For the Respondent:
JJ Nepgen SC
Instructed by Manilal Brewis Attorneys
A Beyleveld SC and TJD Rossi
Instructed by Friedman Scheckter
Attorneys