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[1] The excipient (Devland), who is the plaintiff in the main action , sued out a
summons against the defendant for payment of an amount of R644 400.20
for damages allegedly arising from a breach of contract by the defendant.
The basis of the plaintiff’s claim is th at in 2005, the parties concluded an
agreement in terms of which the defendant would collect, convey, store and
deliver money from the plaintiff ’s business. This would be done in
accordance with the defendant’s operating methods , using stop loss bags
and sealed containers supplied or approved by the defendant.
[2] In terms of the agreement, the defendant would not be liable for any loss or
damage suffered by the plaintiff pursuant to the provision of services by the
defendant, unless such loss or damage is the direct result of the gross
negligence or theft by the de fendant’s employees, acting within the course
and scope of their employment, and occurs while the money is in the custody
of the defendant. The agreement defines ‘custody’ as the possession of
money from the moment of physical collection by the defendant, against an
official Fidelity receipt, by Fidelity employees acting in the course and scope
of their employment, and occurs while the money is in the custody of the
defendant.
[3] To mitigate the plaintiff’s risk, the defendant would render a minimum
service of two cash point collections per working day.
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[4] On 9 September 2019, the employees of the defendant collected money from
the plaintiff’s premises as agreed. The first collection was at approximately
11h12 in the amount of R644 400.20. The amount was to be delivered to the
defendant’s branch office or deposited into the plaintiff’s bank account or
into the bank account of the plaintiff’s nominated supplier. At 16h13, the
employees of the defendant made the second collection in the amount of R1
059 376.63. A total amount of R1 703 776.83 was thus collected by the
defendant.
[5] On the same day, the employees of the defendant were robbed of the
amount of R1 703 776.83 in a cash-in-transit heist. The defendant notified
the plaintiff of the robbery on 10 September 2019. On 26 September 2019,
the plaintiff submitted a claim form to the defendant in respect of the
incident.
[6] On 15 July 2020, the plaintiff instituted a delictual claim against the
defendant, claiming an amount of R644 400.20. The defendant defended the
action and filed a plea. On 23 May 2023, by agreement between the parties,
an order was granted, separating (i)“whether the defendant can be held
delictually liable to the plaintiff in respect of the services…performed” in
terms of the contract between the parties and (ii) whether the conduct of
the defendant would constitute reckless, grossly negligent or negligent
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conduct and whether the plaintiff’s claim is subject to the limitation of
liability clause.
[7] The issue of delictual liability served before Moorcroft AJ, who found that
the defendant cannot be held delictually liable to the plaintiff in respect of
the services performed pursuant to the contract between the parties.
Moorcroft AJ further afforded the plaintiff an opportunity to file an
amendment if the plaintiff so elected.
[8] The plaintiff proceeded to amend the particulars of the claim on 22 August
2023 and set out a claim predicated on contract, relying on the terms of the
agreement between the parties, and in particular, that the defendant would
collect and deliver the cash amount to the defendant’s branch office or
deposit it into the plaintiff’s bank account or into the account of a supplier’s
bank account nominate d by the plaintiff. The plaintiff, thus, contends that
the defendant did not comply with its contractual obligations setting out
when collection and delivery of monies and invoices should take place.
[9] The defendant, in turn, delivered a special plea of prescription, contending
that the plaintiff’s new cause of action, as set out in the amended particulars
of claim , was introduced by the plaintiff on 22 August 2023, when the
amendment was effected, and at that time the claim had already prescribed.
According to the defendant, the contractual claim prescribed on 8
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September 2022, being 3 years from the date on which the incident occurred.
In the alternative, the claim prescribed on 9 September 2022 , 3 years after
the defendant notified the plaintiff about the incident. Further, alternatively,
it prescribed on 26 September 2022, being a period of 3 years from the date
on which the plaintiff submitted a claim form to the defendant.
[10] However, the plaintiff contends that the claim has not prescribed, on the
basis that despite the determination by Moorcroft AJ that the delictual claim
is incompetent , the contractual claim remains a live issue .1 It further
contends that the filing of the amendment did not introduce a new debt as
the Prescription Act does not concern itself with causes of action, whether
delictual or contractual. It refers to just a ‘debt’.
[11] The issue to be determined is whether or not the special plea of prescription
in relation to the contractual claim raised in an amendment of the particulars
of claim raises a bona fide defence to the plaintiff’s claim.
[12] Section 10, read with section 11(a)(d) of the Prescription Act, provides that
a debt shall be extinguished by prescription after the lapse of a period of
three years. The defendant contends that the plaintiff confuses the debt
referred to in the Act with the cause of action. Where the underlying debt is
1 The plaintiff incorrectly submitted that Moorcroft AJ did not dismiss the delictual claim.
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the same, the introduction of a new cause of action does not trigger the
prescription of a debt as envisaged in the Act.
[13] The term ‘debt ‘is not defined in the Prescription Act . The Constitutional
Court in Makate2 observed that the Appellate Court in Escom3 noted the term
in the Prescription Act should be assigned the meaning ascribed to it in the
Shorter Oxford English Dictionary, namely:
“1. Something owed or due: something (as money, goods or service) which
one person is under an obligation to pay or render to another. 2. A liability
or obligation to pay or render something; the condition of being so
obligated.”4
[14] The Constitutional Court in Makate did not venture to determine the exact
meaning of the word, as the claim in that case did not fall within the scope
of the word as determined in Escom.5
[15] If regard is had to the definition of “debt” as stipulated in Escom, it makes
no reference to a cause of action. The plaintiff referred to the judgment of
2 Makate v Vodacom (Pty) Ltd [2016] ZACC 13 at para [85].
3 Electricity Supply Commission v Stewarts and Lloyds of SA (Pty ) Ltd 1981 (3) SA 340 (A).The
entity is now known as Eskom in terms of the Eskom Act 40 of 1987.
4 Id at para 344E – G.
5 Makate at para [92].
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the SCA in Rustenburg Platinum Mines 6 in support of this proposition,
stating further that prescription is not triggered. In that case, the plaintiff
instituted a civil claim predicated on unjust enrichment and subsequently
amended its particulars of claim to include a claim based on contract. In
response to the challenge that a contractual claim constituted a new cause
of action and had therefore prescribed, the court held that introducing a new
cause of action occasioned by an amendment does not necessarily result in
a new 'claim' or 'debt.' Consequently, the special plea of prescription was
not upheld.
[16] In contrast , the defendant’s counsel referred to the judgment of the
Appellate Division in Evins7, handed down almost 30 years before
Rustenburg Platinum Mines and argued that this precedent should be
preferred. He contended that it supports the position that the plaintiff has
two separate rights or causes of action, each giving rise to a corresponding
debt.
[17] As was the case in Rustenburg Platinum Mines, the plaintiff’s claim in casu
is based on a debt arising from an agreement with the defendant. In both
instances, the amount claimed is R644,400.20. While it is correct that the
causes of action are distinct, one being delictual and the other contractual,
6 Rustenburg Platinum Mines v Industrial Maintenance Painting Services [2009] 1 All SA 275
(SCA).
7 Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A).
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they are both founded on the same debt from the same contract. In any
event, it is not unusual for a party to sue for a single debt based on different,
even alternative, causes of action . Thus, reference to Evins cannot be
invoked to argue that there are two separate debts.
[18] That the plaintiff’s reliance on contract in the amended particulars of claim
introduces a new cause of action is, in my view, not borne out by the facts
of this matter. The original particulars of claim evince a sense that the
plaintiff was not oblivious to its rights emanating from the contract it
concluded with the defendant . In para 14 of the plaintiff’s unamended
particulars of claim, the plaintiff asserts that the “…cause of action arose ex
contractu and in delict (actio legis acquiliae)”. I will be the first to admit that
the original particulars of claim are not a model of clarity, and could have
been susceptible to an exception. However, these do not constitute the
introduction of a new cause of action , as the contractual claim already
formed part of the original particulars of claim. It does not , therefore,
implicate the Prescription Act in the manner described by the defendant. In
the circumstances, the exception should succeed.
Order
[19] In the result, I make the following order:
(a) The exception is upheld.
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(b) The defendant is ordered to pay the costs of the exception on a party
and party scale, including costs of counsel to be taxed on Scale B.
__________________________
S MFENYANA
Judge of the High Court
Johannesburg
Appearances
For the plaintiff: H P van Nieuwenhuizen instructed by Ziyaad E
Patel Attorneys
info@zepattorneys.co.za
admin@zepattorneys.co.za
For the defendant: G Herholdt instructed by Eversheds Sutherland
SA Inc.
HelenWestman@eversheds-sutherland.co.za
Date of hearing: 27 May 2025
Date of judgment: 07 November 2025