SAFLII Note: Certain personal/private details of parties or witnesses have been redacted from this
document in compliance with the law and SAFLII Policy

REPUBLIC OF SOUTH AFRICA
IN THE HIGH COURT OF SOUTH AFRICA
GAUTENG LOCAL DIVISION, JOHANNESBURG

GJ APPEAL CASE NO.: A2024/016195
GJ CASE NO.: 11188/15




In the matter between:



In the matter between:

MOODLIYAR & BEDHESI ATTORNEYS Appellant

and

Y[…] M[…] First Respondent

B[…] A[…] M[…] Second Respondent

This judgment was handed down electronically by circulation to the parties’ legal
representatives by e-mail and released to SAFLII. The date and time for hand- down
is deemed to be 13 December 2024.
Summary: The combined summons in the matter had been issued on behalf of the
respondents in their personal capacities and effected within the prescriptive period.
(1) REPORTABLE: YES
(2) OF INTEREST TO OTHER JUDGES: YES
(3) REVISED: YES
13 DEC 2024 _________________________
DATE SIGNATURE


Prescription - Extinctive prescription - Interruption of – Section 15(1) of the
Prescription Act 68 of 1969- special plea of prescription.
Citation of defendants in their personal capacities and subsequently in their
representative capacities on behalf of a minor child in terms of Uniform Rule 28-
misnomer and substitutions.
Held-accordingly, in dismissing the appeal, the subsequent amendment pursuant to
Rule 28 of the Uniform Rules, which was thereafter granted sanctioning the citation
of the respondents in their representative capacities amounted to the introduction of
new parties to the proceedings and that in consequence section 15(1) of the
Prescription Act did not have the effect of interrupting the running of prescription
against them in their representative capacities.


JUDGMENT


MUDAU J: (DIPPENAAR J AND FARBER AJ CONCURRING)

Introduction

[1] On 7 June 2018, Cele AJ granted an amendment to the particulars of claim in an
action pending between the appellant (as plaintiff) and the first and second
respondents (as the first and second defendants respectively), in terms whereof the
appellant was permitted to cite the first and second respondents in the action in not
only their personal capacities but also in their representative capacities.

[2] The issue which arises in this appeal concerns the question whether the
sanctioned amendment had the consequence of introducing additional parties
(namely the first and second respondents in their representative capacities ) to the
action or whether it merely corrected a misdescription or misnomer in their then
existing citation. The answer to these questions will determine whether M Olivier AJ
(the trial court) was correct in subsequently upholding the special plea of
prescription, which the first and second respondents in their representative


capacities subsequently raised in relation to the claim which had been proffered
against them with the leave of the Supreme Court of Appeal . T his determination
forms the subject matter of this appeal.

The facts

[3] On 14 October 2006, the first and second respondents signed a special power of
attorney in favour of the appellant, a firm of attorneys . It was cast in the following
terms:-
“SPECIAL POWER OF ATTORNEY
We, the undersigned,
B[…] A[…] (AKA A[…]) M[…]
(ID NO: 6[…])
AND
Y[…] […]
(ID NO: 6[…])
acting personally herein,
AND ON BEHALF OF OUR MINOR DAUGHTER
A[…] M[…]
(ID NO: 0[…]),
all of No 1[…] G[…] Street, S[…], Johannesburg
do hereby appoint:
MAGASVARAN SOOBRAMONEY MOODLIYAR
(ID NO: 5[…])
of MOODLIYAR & BED HESI ATTORNEYS situated at 57 Oxford Road,
Saxonwold, Johannesburg, with power of substitution, to be our lawful
attorneys and/or agents with full power and authority for us and in our names
and on behalf of our above named daughter, and for our account and benefit:
To institute and prosecute to finality, all necessary legal actions against the
Minister of Health or any other person who is legally lia ble to compensate us ,
for damages sustained by us as a result of the negligent acts, of persons
employed and/or acting within the course and scope of their duties with the
said Minister of Health or such other persons, in relation to the birth of our


abovenamed daughter on the 16 th July 2002 at the Coronation Hospital,
Johannesburg;
On our behalf and in our names, to sign all documents, make all necessary
affidavits, statements and other averments, engage professional legal
representatives including counsel, engage medical and other experts and
generally do all things necessary to prosecute our said actions to finality.
We further agree to pay all fees and/or legal costs to be char ged by our
attorney in the performance of this mandate, which fees and/or legal costs on
the attorney and own client scale at the agreed rate of R900- 00 (nine hundred
rand) per hour or such pro rata amounts in respect of parts of an hour.
We further agree to pay all fees of counsel and witnesses; to make all and
any payments whatsoever which may be necessary and desirable for the
proper conduct of the case; to proceed to the final end and determination
thereof; and generally for effecting the purpose aforesaid, to do or cause to
be done, whatsoever shall be requisite, as fully and effectually, to all intents
and purposes, as we might or could do if personally present and acting
therein, hereby ratifying, allowing and confirming, and promisi ng and agreeing
to ratify, allow and confirm all and whatsoever my said attorney and agent
shall lawfully do or cause to be done by virtue of these presents.”

[4] Pursuant thereto, the appellant commenced rendering the services contemplated
thereunder, which services related to the recovery of damages by the first and
second respondents, in both their personal and representative capacities, from the
Member of the Executive Committee for Health and Social Development in
Gauteng(“the MEC”), arising from injuries sustained by their minor daughter during
her birth at a state hospital.

[5] The power of attorney referred to in paragraph [2] was superseded by one
executed by the first and second respondents on 15 January 2009. It was in terms
identical to that embodied in the earlier document , save that the hourly rate was
increased from R900-00 to R1 200-00, which latter amount was to increase “at a rate
of 15% (fifteen percent) per annum from date of signature hereof.”



[6] The work continued and during the course of August 2011 the appellant caused
Summons to be issued against the MEC for the recovery of damages arising from
the injuries sustained by the minor child.

[7] On 21 May 2012 the appellant’s mandate was terminated and the respondents
appointed Ivan Maitin Attorneys to act on their behalf in the then pending litigation.
This was embodied in a document headed “Termination of Mandate” signed by the
respondents, which document reads as follows:-
“ TERMINATION OF MANDATE
I/we, the undersigned
M[…], Y[…]
(ID NO: 6[…]2)
AND
M[…] , B[…] A[…]
(ID NO: 6[…])
Acting in my /our personal and representative capacity as mother/father and
legal guardian of A[…] M[…], do hereby withdraw and/or revoke the mandate
I/we have given to the firm of attorneys:

MOODLIYAR AND BEDHESI ATTORNEYS
57 OXFORD ROAD
SAXONWOLD
JOHANNESBURG
TEL: (011) 486 2911
FAX: (011) 486 3911
REF: BEDHESI/M654

and/or any other Agent or Attorney with immediate effect, in relation to the
prosecution of my/our medical negligence claim arising from the birth of our
aforementioned minor child on or about the 16
th of July 2002.
I/we hereby authorize, empower and/or instruct:
IVAN MAITIN ATTORNEYS
179 BEYERS NAUDE DRIVE
1 ST FLOOR, SILHOUETTE HOUSE


NORTHCLIFF
JOHANNESBURG

To take over the prosecution of such claim, and proceed with it to finality.”

[8] On 15 October 2013, the appellant’s attorney and client bill of costs in respect of
the services which it had rendered was taxed in the sum of R381 831-75. Some days
later the appellant made demand on Ivan Maitin Attorneys for payment of the amount
in question. This demand was not acceded to, seemingly because the appellant had
agreed to render the services in question on contingency . The appellant disputed
that to be the case.

[9] Ivan Maitin Attorneys continued prosecuting the matter on behalf of the
respondents. The MEC accepted liability and following thereon a substantial amount
was paid to a Trust which had been established to administer the funds which were
paid by the MEC in consequence of the damages which the minor child had
sustained.

[10] Payment of costs was also made to Ivan Maitin Attorneys . These costs
included those which has been raised by the appellant during the course of its
engagement by the respondents. Ivan Maitin Attorneys retained that portion of the
recovered costs and has seemingly not accounted to the appellant in respect
thereof.

[11] Following thereon, and in and during March 2015, the appellant instituted an
action against the respondents, jointly and sever ally, the one paying the other to be
absolved, for payment of the sum of R381 831-75, together with interest thereon.
Costs were also sought.

[12] The respondents ( being the first and second defendants in that action were
cited in the Combined Summons thus:-
“Y[…] M[…] (the “First Defendant”) an adult male dispatch manager residing
at 1[...] G[...] Street, T[...], Johannesburg
AND


B[…] A[…] M[…] (the “Second Defendant”) an adult female administrative
assistant residing at 1[...] G[...] Street, T[...], Johannesburg -”

[13] The first and second respondent s were described in paragraphs 2 and 3 of
the particulars of claim annexed to the Combined Summons thus:-
“2. The first defendant is Y[…] M[…] an adult male dispatch manager
residing at 1[...] G[...] Street, T[...], Johannesburg.
3. The second defendant is B[…] A[…] M[…] an adult female
administrative assistant residing at 1[...] G[...] Street, T[...], Johannesburg.”

[14] This must be read with paragraph 5 thereof which was cast in the following
terms:-
“5. On or about 14
th October 2006 and at Johannesburg the first and
second defendant instructed the plaintiff to act on their behalf. The defendants
duly executed Special Powers of Attorney. A copy of the Powers of attorney
are annexed hereto marked “A” and “B” respectively.”

[15] On 25 August 2017, the appellant sought to amend their Particulars of Claims
in the action in a number of respects. One of the foreshadowed amendments related
to the insertion therein of an additional paragraph, which paragraph reads as
follows:-
“4. The defendants are cited herein in their personal and representative
capacities as guardian of the minor child, A[…] M[…] (“the minor child”)”.

[16] The respondents objected to the proposed amendments . They in relation to
the amendment referred to in paragraph [15] asserted the following in paragraphs 6
to 10 of their notice of objection:-
“FIRST OBJECTION
6. In paragraph 2 of the Plaintiff’s notice, the Plaintiff proposes to insert a
new paragraph 4 wherein the Defendants would, for the first time, be cited in
the present action under the above case number (“the present action”) in their
representative capacities as guardians of the minor child, A […] M[…] (“the
minor child”) in addition to their personal capacities, in which capacity they
had been cited since the inception of the present action.


7. At paragraph 7 of the Plaintiff’s notice, the Plaintiff also seeks to
include liability on the Defendants personally, alternatively personally and in
their representative capacities.
8. It is trite law that a minor may be sued either in the minor’s own name
or by the guardian, or in the name of the guardian representing the minor, in
which case the fact or representative capacity must be alleged.
9. Prior to the Plaintiff’s notice, the minor child was not sued in her own
name, assisted by the Defendants, nor were the Defendants sued as
representatives of the minor child.
10. The effect of allowing the amendment would also be that a claim is
instituted against the party against whom summons was not served in terms
of the Rules of Court thereby creating a nullity, alternatively an irregular step.”

[17] The Respondents went on to record the following in paragraphs 11 to 16 of
their notice of objection:-
“SECOND OBJECTION
11. Since the institution of the present action and in the Plaintiff’s
Particulars of Claim, the Plain tiff alleged the conclusion of and annexed
thereto, two special powers of attorney concluded between the Plaintiff’s
Magasvaran Soobramoney Moodliyar and the Defendants.
12. However, the special power of attorney
12.1 w ere in fact concluded between the Plainliff’s Magasvaran
Soobramoney Moodliyar and the Defendants:
12.1.1 acting in their personal capacity; and
12.1.2 also acting therein on behalf of the minor child.
12.2 provided for the institution and prosecution to finality, of all
necessary legal actions against the Minister of Health or any other person
who was legally liable to compensate the Defendants for damages sustained
by them and for the minor child in respect of which f ull power and authority
were given by the Defendants in their names and on behalf of the minor child.
13. The Plaintiff’s mandate is alleged to have been terminated during May
2012.
14. On the Plaintiff’s further proposed amendments (against which
objection is also lodged as set out later herein) the entitlement to fees and


disbursements on behalf of the Defendants would be payable on demand.
The Plaintiff then alleges that on 21 Oct ober 2013, it addressed a written
demand to the Defendants.
15. Therefore, even on the Plaintiff’s own version, and at best for the
Plaintiff, its cause of action against the minor child, or the Defendants in their
representative capacity of the minor child, arose by no later the 21 October
2013.
16. Accordingly, the Plaintiff’s claim against the minor child would have
prescribed at midnight on 20 October 2016 in terms of Section 11(d) of the
Prescription Act 68 of 1969 (“the Prescription Act”).”

[18] Despite these objections , Cele AJ allowed the amendment on 7 June 2018
with the result that the respondents where expressly cited in the Particul ars of Claim
in both their personal and representative capacities as the guardians of their minor
child.

[19] This attrac ted what is described in the respondents’ amended plea as a
“SECOND SPECIAL PLEA.” It reads as follows:-
“In the event of any mandate found to have existed between the Plaintiff and
the Defendants in their personal capacities, and even on the Plaintiff’s
version:
I. The Plaintiff’s cause of action is based on legal services rendered to
the Defendants commencing from the period 14 October 2006 to 21 May
2012.
II. The Plaintiff’s mandate was terminated on 18 May 2012 in terms of
annexure “C” to the particulars of c laim, at which date, at best for the Plaintiff,
prescription commenced running in terms of Section 12(1) of the Prescription
Act.
III. The process whereby the joinder of Defendants in their representive
capacities of their minor daughter, A […] M[…] (‘the new Defendant”) was
sought and which process was prosecuted to finality culminating in the service
of the Plaintiff’s amended pages of its Particulars of Claim on 19 June 2018,
viz the Plaintiff’s notice of intention to amend (dated 21 August 2017), was
served on the attor neys of the Defendants (then still only cited in their


personal capacities) on 25 August 2017, being more than 3 years after the
commencement of prescription.
IV. Accordingly, the period of prescription was completed by 18 May 2015
in terms of Section 11(d) of the Prescription Act vis-à-vis the new Defendant.
V. In the premises the Plaintiff’s claim against the new Defendant has
prescribed in terms of Section 11(d) of the Prescription Act.”

[20] The second special plea was upheld by the tr ial court. This appeal is against
that order and the judgement which underpins it.

The approach of the trial court

[21] The court a quo found that prescription in relation to the appellant’s claim for
payment of the fees and disbursements s aid to be due to it prescribed on 18 May
2015, being a period of 3 years after its mandate had been terminated. The
combined summons in the matter had been issued on behalf of the respondents in
their personal capacities. Service of it was effected during March 2015 and thus
within the prescriptive period. It went on to hold that the amendment which was
thereafter granted by Cele AJ on the 7 June 2018 sanctioning the citation of the
respondents in their representative capacities amounted to the introduction of new
parties to the proceedings and that in consequence section 15(1) of the Prescription
Act 68 of 1969 (the Prescription Act) was not of application in interrupting the running
of prescription against them in these capacities.

[22] The court a quo in this regard rejected the appellant ’s contention that the
amendment simply cured what amounted to a misdescription of the respondents and
that in consequence section 15(1) interrupted the running of prescription.

[23] It will thus readily be appreciated that the dispute between the parties is
narrow in ambit and solely concerns the question whether the amendment had the
consequence of introducing additional parties to the action or to whether it simply
amounted to the correction of the citation of the respondents who had from the very
outset been parties to the litigation in both their personal and representative
capacities. This will turn on the question whether individuals in their personal


capacities are considered as different persons when they act in representative
capacities.
The legal position in relation to the application of section 15(1) of the Prescription Act

[24] There are significant cases which illustrate the application of section 15(1). I
will deal with some of them.

[25] In Sentrachem Ltd v Prinsloo 1997 (2) SA 1 (AD)
1Prinsloo, a farmer, sued
Sentrachem Ltd (Sentrachem) for damages arising from the destruction of his crop.
He contended that those damages were occasioned by his use of a product which
had been marketed and recommended to him by Sentrachem for the control of a
certain pest which unfortunately had the side- effects of destroying the biological
control of another pest. It became apparent that the particulars of claim filed by
Prinsloo were less than satisfactory. As a result Prinsloo in relation to one of the
claims amended his particulars of claim. Sentrachem contended that the effect of the
amendment was to introduce a new claim which had prescribed. It consequently
introduced a defence of prescription in relation to that claim. In response Prinsloo
contended that the claim in question constituted nothing more than a refinement of
the existing claim and that the earlier service of summons had pursuant to section
15(1) of the Prescription Act interrupted the running of prescription. The trial court
dismissed the plea.

[26] This dismissal was unanimously upheld by the Appelate Division (per Eksteen
JA with whom EM Grosskopf, Nienaber, Olivier and Zulman JJA concurred). The test
to be applied in relation to the question in issue was formulated by Eksteen JA at
15J-16D thus.
2
“The real test was whether the same claim had been preferred in the earlier
process, that is whether the debt as set out in the amended summons was
recognisable from the original summons, so that any subsequent amendment
amounted to no more than a clarification of a defective pleading in which the

1 1997 (2) SA 1 (AD)
2 Eksteen JA formulated the test through the medium of the Afrikaans language. We are grateful to
counsel on behalf of the respondent who translated it into English. The translation is reproduced in
this judgment.


right of action relied on throughout was set out. Such an amendment shall
naturally not be able to bring in another right of claim in addition to the original
right of claim, or save a right of claim which was premature in the original
summons, or to join a new party to the lis.”

[27] The case of Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats
(Exports) Ltd
3affords another example of the application of section 15(1). A
company named Anglo-Dutch Meats (UK)Ltd (“UK”) instituted action for the recovery
of the purchase price of beef flanks which it had allegedly supplied to the appellant. It
subsequently became apparent that the meat in question had been supplied by
Anglo-Dutch Meats (Exports) Ltd (“Exports”), a wholly owned subsidiary of UK.
Some three years after the institution of proceedings the particulars of claim in the
matter were amended to substitute “Exports” for “UK” as the plaintiff in the action.
The court granting the amendment found that the plaintiff had been wrongly cited in
the action. The trial court found that the amendment had been wrongly granted as
the summons did not constitute a process whereby the creditor had claimed payment
of the debt and, accordingly, the service of summons had not interrupted
prescription. The trial court in this regard found that the original citation (being that of
“UK”) did not amount to a misnomer or an incorrect description. The plea of
prescription which the defendant in the action had raised was consequently upheld.
The decision of the trial court went on appeal to the F ull Bench which set aside the
decision of the trial court. It held that the citation of “UK” as the plaintiff in the action
had been no more than a misnomer for “Exports”.

[28] The Supreme Court of Appeal (per Heher JA with whom Harms, Farlam and
Brand JJA and Mlambo AJA concurred) reversed the finding of the Full Bench and
reinstated that of the trial court. Heher JA reasoned as follows (footnotes omitted):-
“[12] The approach adopted by the Court a quo reveals confusion. There
seems to have been no consideration of whether a difference in approach is
called for between applications for the amendment of pleadings and the
determination of whether there is compliance with a statutory provision such
as s 15(1). The cases referred to in paragraph [8], which related to the first

3 2004 (3) 160 (SCA).


problem, were willy -nilly applied to the second. It is clear that there are
fundamental differences between the two situations. Amendments are
regulated by a wide and generous discretion which leans towards the proper
ventilation of disputes and are granted according to a body of rules developed
in that context. Whether there has been compliance with a statutory
injunction depends upon the application of principles wholly unrelated to the
rules just mentioned and without the exercise of a discretion, pri nciples which
were expressed by Van Winsen AJA in the well -known passage from Maharaj
and Others v Rampersad 1964 (4) SA 638 (A) at 646C-E as follows:
‘The enquiry, I suggest, is not so much whether there has been “exact” or
“substantial” compliance with this injunction but rather whether there has been
compliance therewith. This enquiry postulates an application of the injunction
to the facts and a resultant comparison between what the position is, and
what according to the requirement of the injunction it ought to be. It is quite
conceivable that a court might hold that, even though the position as it is is
not identical with that which it ought to be, the injunction has nevertheless
been complied with. In deciding whether there has been compliance with the
injunction the object sought to be achieved by the injunction and the question
of whether the object has been achieved are of importance. Cf J.E.M. Motors
Ltd v Boutle and Another 1961 (2) SA 310, at pp. 327-8.’
[13] For obvious practical reasons the legislature ordained certainty about
when and how the running of prescription is interrupted. That certainty is of
importance to both debtors and creditors. It chose an objective outward
manifestation of the creditor’s intentions as the criterion, viz the service on the
debtor of process in which the creditor claims payment of the debt. That is
not a standard which allows for reservations of mind or reliance on intentions
which are not reasonably ascertainable from the process itself. Nor does it,
as a general rule, let in, in a supplementation of an alleged compliance with s
15(1), the subjective knowledge of either party not derived from the process,
such as, for example, the content of a letter of demand received by the debtor
shortly before service of the process. Cf Standard Bank of SA Ltd v
Oneanate Investments (Pty) Ltd 1995 (4) SA 510 (C) at 553E -G. The
question whether this general rule allows for an exception where both parties


have been ad idem at all times as to the true identity of the plaintiff, does not
arise on the facts of this case.
[14] Applying these considerations to the facts of the case, the question
which requires answering is ‘Was a summons served on the defendant before
prescription in which the creditor who asked for judgment, viz Exports,
claimed payment?’ That there was no exact compliance is beyond dispute
because the original plaintiff was not the creditor and did not seek judgment.
Of course the identity of a creditor does not depend only on its name. Place
of residence or business, registered office, occupation or nature of business,
details of some or all of which one would expect to find in a process, may also
serve to establish identity or clarify an ambiguous or incorrectly -stated name.
(There may be other indicators, such as a previous name of a company,
company registration details or an identity number, which are sometimes
encountered.) In the present instance, however, the only possibly pertinent
details in the summons are that UK was ‘a company with limited liability
registered in accordance with the laws of E ngland with registered office at
Arkwright Road, Highfield Industrial Estate, Eastbourne, East Sussex, United
Kingdom’. When Exports was later introduced into the summons exactly the
same description was applied to it. Of itself that is insufficient to assist
Exports. The fact remains that the summons served on the appellant failed
entirely to communicate to it the intention of Exports to claim payment. The
summons did not, therefore, achieve the objects of s 15(1) and was not
effective to interrupt prescription.
[15] From what I have said it will be apparent that the importance attached
to a misnomer or misdescription by all three of the Courts which previously
considered this matter, while appropriate in the context of an amendment,
was misplaced in relation to the interruption of prescription.
[16] There is no unfairness in this conclusion, as the Court a quo seemed to
think. Prescription penalizes negligence and inactivity. Judged according to
the legislative intention the respondent remained absent and inert for more
than three years. Both shortcomings are ascribable to the failure to take
reasonable precautions from the time of preparing the summons to the
belated awakening. The power of correction always lay with the respondent.


[17] There are, no doubt, a great variety of factual possibilities which may
arise in the context of deciding whether s 15(1) has been complied with. It is,
however, unnecessary to go beyond the facts of this appeal in order to decide
its fate.
[18] It is, nevertheless, desirable, because of the approach adopted by the
Court a quo, to allude to certain other considerations. The first is that, in the
context of s 15(1), though not necessarily in relation to the amendment of
pleadings, the existence of another entity which bears the same name as that
wrongly attributed to a creditor in a process is irrelevant. That is not the
creditor’s concern or responsibility. Second, an incorrectly named debtor falls
to be treated somewhat differently for the purposes of s 15(1). That that
should be so is not surprising: the precise citation of the debtor is not, like the
creditor’s own name, a matter always within the knowledge of or available to
the creditor. While the entitlement of the debtor to know it is the object of the
process is clear, in its case the criterion fixed in s 15(1) is not the citation in
the process but that there should be service on the true debtor (not
necessarily the named defendant) of process in which the creditor claims
payment of the debt. The section does not say ‘. . . claims payment of the
debt from the debtor’. Presumably this is so because the true debtor will
invariably recognize its own connection with a claim if details of the creditor
and its claim are furnished to it, notwithstanding any error in its own citation.
Proof of service on a person other than the one named in the process may
thus be sufficient to interrupt prescription if it should afterwards appear that
that person was the true debtor. This may explain the decision in Embling
supra where the defendant was cited in the summons as the Aquarium Trust
CC whereas the true debtors were the trustees of the Aquarium Trust.
Service was effected at the place of business of the Trust and came to the
knowledge of the trustees. In the light of what I have said such service was
relevant to proof that s 15(1) had been satisfied and was found to be so by
Van Heerden J (at 700D, 701D).”



[29] A similar problem arose in the matter of Solenta Aviation (Pty) Ltd v Aviation
@ Work (Pty) Ltd 4 (754/2012) [2013] ZASCA 103 (12 September 2013. Solenta
Aviation Workshops (Pty) Ltd issued a combined summons against the respondent .
Its cause of action was based on an agreement of lease which was annexed to the
particulars of claim . The lease reflected the name of the lessor as Solenta Aviation
(Pty) Ltd and not Solenta Aviation Workshops (Pty) Ltd. An application was
subsequently made after prescription had run to amend the name of the plaintiff in
the action by the deletion of the word “Workshops” from it. Despite the recognition
that the two entities where distinct and separate entities, t he amendment was
granted because, so it was reasoned, the description of the plaintiff amounted to a
misnomer rather than the substitution of one plaintiff for another . The respondent
then raised a special plea of prescription to the claim of the now named plaintiff
Solenta Aviation (Pty) Ltd. The trial court (per Louw J) upheld the special plea on the
basis that objectively considered the summons which had been served did not
communicate to the now substituted defendant the intention of the appellant to claim
payment of the debt and that in the circumstances the objects of section 15(1) had
not been satisfied and that consequently prescription had not been interrupted.

[30] Meyer AJA (as he then w as) after referring to Blaa uwberg and the case of
Standard Bank of SA Ltd Oneanate Investments (Pty) Ltd
5wrote the fol lowing in
paragraphs [14] to [17] (footnotes omitted):-
“[14] Counsel for the appellant placed great reliance upon the description of
the lessor as ‘Solenta Aviation (Pty) Ltd’ and that of the lessee as ‘Aviation @
Work (Pty) Ltd’ in the contract that is annexed to the combined summons that
was served upon the respondent as well as on the reference to ‘domicilium
citandi et executandi’ in the description of each party on the face of the
combined summons and in paragraphs 1 and 2 of the particulars of claim.
The details of the creditor given in the summons and in paragraph 1 of the
particulars of claim were that:
‘[t]he plaintiff is Solenta Aviation Workshops (Pty) Ltd, a company, duly
incorporated in accordance with the laws of the Republic of South Africa with

4 (754/2012) [2013] ZASCA 103 (12 September 2013).
5 1995 (4) SA 510 (C) at 553 E-G


domicilium citandi et executandi of (sic) Block 5 Stratford Office Park, Corner
Cedar Avenue and Valley Road, Broadacres, Johannesburg.’
The appellant was sought to be introduced to the proceedings by the deletion
of the word ‘Workshops’. For the rest the citation remained unchanged. It is
common cause that both corporate entities had the same registered address,
which was the one given in the combined summons and in the particulars of
claim. The appellant’s counsel submitted that the description of the lessor in
the contract and the reference to a ‘domicilium citandi et executandi’
communicated to the respondent the correct identity of t he creditor, viz the
appellant.
[15] To look only at the contents of the contract and to conclude that the
respondent must have appreciated, or even did appreciate, who the true
creditor was, which is essentially what the argument on behalf of the appellant
amounts to, can in my view not be conclusive of the enquiry as to whether
payment of the debt was claimed by the creditor. The parties to an action are
cited in the combined summons and particulars of claim and the cause of
action is set out in the particulars of claim. It is true that the debt which the
appellant seeks to claim is the same debt that Solenta Aviation Workshops
sought to enforce in the combined summons that was served upon the
respondent. This does not mean that the combined summons was issued by
‘the creditor’ in compliance with s 15(1). The description of the plaintiff as
Solenta Aviation Workshops and of the defendant as Aviation @ Work (Pty)
Ltd on the face of the combined summons and in the particulars of claim and
the further averments about the written agreement that was concluded
between those two entities make it plain that the appellant was not the
creditor that claimed payment of the debt in terms of the combined summons
notwithstanding the reference to the appellant’s name as the lessor in the
annexed contract. The citation of the domicilium does not assist the
appellant.
[16] The admissions by the respondent of the citations of the parties and of
the contract and its terms also do not avail the appellant. They did not bring
about an automatic substitution of one plaintiff for another. The appellant’s
counsel in my view correctly conceded that the admissions could also not be
regarded as an unconditional acknowledgement of liability in terms of s 14(1)


of the Prescription Act. The admissions in any event admit the parties to the
contract to have been the respondent and Solenta Workshops and not the
respondent and the appellant. They also do not assist the appellant.
[17] To sum up: in applying the objective test the claim made in the
combined summons was, on a plain reading, not that of the true creditor,
which is the appellant, and service of that process on the respondent did not
interrupt the running of prescription. The appellant’s counsel conceded that, if
this be the finding, it will not be necessary to consider the defence of issue
estoppel.”

[31] It is thus clear that for the purposes of prescription and the determination
whether it has run, our courts will not permit a new plaintiff to be substituted for the
existing plaintiff so as to bring section 15 (1) into operation. This is because the
existing plaintiff is not the defendant’s true creditor. In that instance there will not
have been service on the defendant of process in which the creditor claims payment
of the debt. In short, the initiating summons issued at the instance of the existing
plaintiff will not serve the purpose of communicating the intention of the new plaintiff
to claim payment. In short, section 15 (1) will not have been complied with.

[32] It is equally clear that in a situation where process has been served on a
person other than the plaintiff’s true debtor, our courts will not permit the substitution
of the true debtor for that person. This is because the summons did not
communicate to the proposed substituted debtor the intention of the plaintiff to claim
the debt from it, with the consequence that section 15(1) has not been complied with.

[33] In the situation now under consideration care must be taken to distinguish
between the substitution of parties (whether plaintiffs or defendants) in
circumstances where an amendment is sought as opposed to situations where
considerations of prescription arise.



[34] As to the former, Marais AJ said the following in paragraph [37] of his
judgment in Essence Lading CC v Infiniti Insurance Ltd and Another6:-
“[37] It is, therefore, evident that during the first half of the 20 th century a
practice was in existence in our courts whereby a party in legal proceedings
could be substituted by a new party, provided that the process by which the
substitution was effected did not result in incurable injustice. In some cases,
the amendment went hand in hand with an application for the joinder of the
new party and in others, where the court was satisfied that the new party had
effectively been served (for example by service on a co- partner), by way of an
amendment without a formal joinder. The most important consideration
remained prejudice and, in this regard, the main consideration was whether
the party who is to be introduced to the action was given proper notice of the
proceedings against him. This practice continued thereafter.”

[35] The learned acting Judge in relation to the latter expressed himself as follows
in paragraph [67] (footnotes omitted): -
“[67] In relation to the interruption of prescription the Supreme Court of
Appeal held in Blaauwberg Meat Wholesalers held that it was apparent that
the importance attached to a misnomer or misdescription by all three of the
Courts which previously considered this matter was misplaced in relation to
the interruption of prescription. The question is not whether there was a
misnomer or a substitution, but whether the correct creditor claimed payment.
In Solenta Aviation (Pty) Ltd v Aviation @ Work (Pty) Ltd the Supreme Court
of Appeal decided the issue of interruption of prescription (in a setting where
previously the reasoning would be beset with niceties regarding the distinction
between misnomers and substitutions) without a single reference to this
distinction. The only reference to a misnomer was that the High Court in an
interlocutory application granted an amendment on the basis that the mistake
was a mere misnomer. On the facts of that case, applying the test for a
misnomer, the mistake was indeed a misnomer (this is this court’s conclusion,
not that of the Supreme Court of Appeal), but that did not preclude the court

6 [2023] 3 All SA 410 (GJ); 2024 (2) SA 407 (GJ) (9 June 2023)



from finding that the mistake resulted in the correct creditor having failed to
commence legal proceedings for purposes of section 15(1) of the Prescription
Act, and that the correction of that misnomer by way of the amendment, did
not cure the failure.”

[36] The observations of Marais AJ are entirely in keeping with what Heher JA had
to say in paragraph [12] of Blaauwberg.

[37] It will moreover be readily appreciated that in the ultimate analysis the test for
determining whether the issue of process will have the effect of interrupting
prescription is factual in nature. The enquiry is an objective one and knowledge
which the parties may have outside the process itself is irrelevant to the enquiry. So
too, is the subjective intention of the party initiating the process , even in
circumstances where the wrongly described defendant has knowledge of that
subjective intention.

Additional considerations of Law

[38] The appellant was mandated to institute proceedings for the recovery of
damages arising from the negligent treatment of the respondent s’ daughter at birth.
Notionally, damages in that type of situation may well have been sustained by the
respondents, both in their personal and representative capacities respectively.
7 The
child requires assistances of his or her guardian and he or she may sue or be sued
either in the name of the guardian or in his or her own name assisted by the
guardian.8 The guardian in the former instance acts in a representative capacity ,
which capacity must be made perfectly clear.9


7 Parents are responsible for the maintenance of their children. An injury sustained by a child will give
rise to the parents incurring heightened expenses, which they will be able to recoup from the
wrongdoer. The child will have a claim in his or her own right.
8 Curator ad litem of Letterstedt v Executors of Letterstedt 1874 Buch 42 and Nicholl NO v SAR and H
1917 WLD 95; Van der Walt v Hudson and Moore (1886) 4 SC 327; Jackson v Humphrey (1887) 4
CLJ 234 (E), Le Roux v Le Roux Joel (1897) 4 OR74 and Willmer v Nance (1904) 21 SC 423.
9 See January v Kilpatrick (1881) 2 EDC 18.


[39] It is tri te that “Individuals in their personal capacities are treated as different
persons from when they act in representative capacities.”10
Application of the facts to the Law

[40] It is clear that the respondents were cited in the combined summons in their
personal capacities . This description was maintained in the particulars of claim
annexed thereto. Given the fact that an individual who is sued in his or her personal
capacity is a different person when sued in a representative capacity it cannot said
that the citation of the respondents in the combined summons, as read with the
particulars of claim, constituted a misnomer or mistake.

[41] On the face of i t, is clear that the appellant wished to sue the respondents in
their personal capacit ies. This was a remedy available to them in terms of the
mandates which they executed. The fact that the appellant omitted to cite them in
their representative capacities as well does not strengthen the appellant’s contention
that their original citation was based on a misnomer or otherwise mistaken.

[42] The respondents in their personal capacit ies were liable for payment of the
costs in those capacities, albeit that such liability may have been coextensive with
that of the minor child. The situation is akin to that which arises when the creditor
sues one of several joint debtors. The process initiating that action will clearly not
have the effect of interrupting prescription in relation to the debtors who were not so
sued. It would, I suggest, be fallacious to contend otherwise.

[43] As the cases show m atters of the appellant’s subjective intention and the
respondents’ understanding thereof do not enter the equation. It is in this regard
inescapable that the initiating process did not convey that the appellants were being
sued in their representative capacities . Section 15(1) is clearly not of application on
the facts of the case.

[44] In my view the court a quo’s approach was clearly correct.


10 Road Accident Fund v Advocate ELE Myhill NO. [505/2012] [2013] ZASCA 73.


The result

[45] In the result the appeal falls to be dismissed with costs . The result is
unfortunate. Ivan Maitin Attorneys recovered the fees raised by the appellant and its
disbursements, at least in part . These monies ought to have been paid over to the
appellant for the services which it had rendered in what turned out to be a successful
case. One can but only hope that the required payment is made to the appellant.
The following orders will thus issue: -
1. The appeal is dismissed.
2. The costs of the appeal are to be paid by the appellant.

T P MUDAU
JUDGE OF THE HIGH COURT
JOHANNESBURG

Appearances

For the Appellant :
Ms AJ Lapan

Instructed by:
Moodliyar and Bedhesi Attorneys
57 Oxford Road
Saxonwold
Johannesburg
TEL: (011) 486 2911
EMAIL: bedhesi.mb@netdial.co.za

REF: T Bedhesi/M654

For the Respondent:
Adv H P Van Nieuwenhuizen

Instructed by:
Ivan Maitin Attorneys


115 Beyers Naudé Drive
Northcliff
Randburg
TEL: (011) 888 9938
EMAIL: maitin@imainc.co.za
REF: I I M/M240/12

Date of hearing: 27 November 2024

Date of Judgment : 13 December 2024