IN THE HIGH COURT OF SOUTH AFRICA
NORTH WEST DIVISION, MAHIKENG
In the matter between:
THANDEKA BOBE
and
DR J D VAN DER WALT
Coram: Wessels AJ
Date of hearing: 26 February 2026
Not reportable
Case no:922/2023
Applicant
Respondent
Delivered: This judgment was handed down electronically , circulated to the
parties' representatives via email, uploaded to CaseLines, and released to
SAFLII. The date and time for the handing down of the judgment are deemed to
be l OhOO on 1 7 March 2026.
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Summary: Pleading - Amendment - Application for leave to amend
particulars of claim - Changing cause of action from contract to delict -
Prescription - Whether amendment introduces new debt.
Prescription - Debt - Contractual claim and de! ictual claim arising from
same factual matrix constitute different debts - Prescription of delictua l
claim not intetTupted by service of process claiming contractual debt.
Held, that a claim based on breach of contract and a claim based on breach
of a legal duty are separate causes of action giving rise to different debts. An
amendment introduc ing a delictual claim after the prescriptive period has run
will not be allowed where the original summons did not claim payment of
that debt.
JUDGMENT
WesselsAJ
Introduction
[ 1] This is an opposed interlocutory application for leave to amend the
applicant's particulars of claim. The applicant, who is the plaintiff in the
action, seeks to amend her paiticulars of claim to change the basis of her claim
against the respondent (the defendant in the action) from contract to delict.
The respondent opposes the amendment on the ground that it introduces a
new cause of action which has prescribed.
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Background Facts
[2] The materia l facts are largely common cause. On 24 April 2023, the
applicant instituted action against the respondent by way of a combined
summon s, claiming damages for medical negligence arising from a breast
reduction procedure performed by the respondent on 10 December 2020.
[3] The original particulars of claim alleged, pertinently, as fo llows:
'5 ... On or about the 25th of November 2020, the parties entered into a part oral, part
writte n agreeme nt wherei n the mater ial express, alternatively implied terms were as
follows:
5.1. A breast reduction surgery would be performed on the PlaintiIT by the Defendant on
the 10th of Decembe r 2020.
5.2. An amo unt of R53 900 in cash would be paid by the Plaintiff for such service.
6.
rt was a term of the contrac t that the Defendant would perform the surgery and any related
activities thereto with suc h professional skill as is reasonable for a Practitioner operating
on a patient and a cosmetic surgeon.'
[ 4] The origina l pleading then set out extensive allegations of negligence
under the headin g 'NEGLIGENCE' and claimed damages in the sum of
R852,000 .00, comprising past medical expenses, future medical expenses,
past loss of earnings, and gene ral damages.
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f 5] The respond ent delivered an exception to the particular s of claim. The
exception was premised on the basis that the particular s of the cla im failed to
set out a cause of action in either contract or delict.
[6] This Court upheld the exception with costs, ordering the applicant to
amen d her particul ars of claim within 15 days. On 5 July 2024, the appl icant
delivered a notice of intention to amend in tenns of Uniform Rule 28(1 ). The
proposed amendment seeks to delete all references to a contractual
relationship and instead plead the claim solely on the basis of delict.
Summary of Arguments
[7] The applicant contends that a plaintiff is not precluded by prescript ion
from amend ing her claim , provided that the debt clai med in the ame ndment
is the same or substantiall y the same as the debt origina lly claimed. The
applicant relies on the principle that an amendment will be granted unless it
is mala tide or prejud icial to the other party. The applicant furt her argues that
the origina l claim was always for medical negligence and that the same
damages are claim ed, but that only the legal basis has been clarified by the
amendment. On this pretext, the applicant conte nds t hat prescription was
interrupted by serv ice of the combined summons in Apri l 2023.
[8] The respondent contends that the proposed amendment seeks to
introduce a new cause of action, a delictua l claim, whereas the original claim
was contractual. Cou nsel for the respondent pointed out that the applicant
admitted during the exception proceedings that the applicant 's claim was
based on contract.
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[9] The respond ent submits that in paragraph 6 of the p roposed
ame ndment, the appli cant confirms that the 'debt' became due on 15
Dece mber 2020. In terms of s ll(d) of the Prescription Act1 a debt prescribes
within three years. The delictual claim, introduced only now by way of
amendment, would have become prescribed on 15 December 2023 (before
the filing of the appl icant's notice of intention to amend).
[ 1 OJ The respondent relies on the test set out in Sentrachem Ltd v Prins/00 2
and contends that a debt prem ised on a contractua l obligation and a debt
premised on delictual liab ility cannot be said to be the same debt. The
respon dent relies strong ly on Imperial Bank Ltd v Barnard and Others NNO 3
and the recen t Constituti onal Court decision in Rademeyer v Ferreira'1 to
support this propos ition. The r espondent contends that allowi ng the
amendment would introduce a prescr ibed claim, which would cause prejud ice
to the respo ndent, that costs cannot compensate for.
The Legal Principle s
[1 IJ The approach in allowing amendments, as governed by Uniform Rule
28, is trite. In Imperial Bank Ltd v Barnard and Others 5, the Supreme Court
of Appeal stated:
1 Prescription Act 68 of 1969.
2 Senlrachem Ltd v Prinsloo 1997 (2) SA I (A).
3 Imperial Bank Ltd v Barnard and Others NNO 20 13 (5) SA 612 (SCA). 4 Rademeyer v Ferreira 2025 (2) SA I (CC).
5 /mper ial Bank Ltd v Barnard and Others NNO 2013 (5) SA 612 (SCA) para 8.
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• An app lication for amendment will always be allowed unless it is made mala fide or
would cause prej udice to the other party, which cannot be compensated for by an orde r for
costs or by some other suitable order, suc h as a postpone ment.'
[12] Howeve r, a n ame ndme nt w ill not be allowed where it wou ld cause
prejudice to the other party that cannot be compensate d by costs. Prejudice
in this c ontext includes the depr ivatio n of a good defence, such as
prescr iption. S impliciter, the relevant port ion of the disc uss ion under Rule
28 in Eras mus Superior Court Practice 6 reads:
• An amendment which introduces a new claim will not be allowed if it would resuscitate a
prescribed claim or defeat a statutory limitation as to time.'
[13] The underlyi ng tension between amend ments and prescr iption was
authoritat ive ly dea lt with in Sentrachem Ltd v Prinsloo 7 wherein the Supre me
Court of Appea l ('SCA') set out the applicab le test as a comparison between
the original clai m and the proposed amended cla im to deter mine whether the
same right of action, or substantia lly t he same right, is being pursued. T he
focus is on whether the rights sought to be enforced are the same or
substantia lly the same.
[14] The distinct ion between a c laim in contract and a c Jaim in del ict is
fundamental. They are separate and d istinct causes of act ion, arising from
differe nt legal obligations. In Lillicrap, Wassenaar and Partners v Pilkington
Brothers 8(SA) (Pty) Ltd 1985 (1) SA 4 75 (A) the SCA drew the critica l
distinction betwee n cases based on delict independently of the cont ract (such
6 DE van Loggerenberg Erasmus: Superior Court Practice 3rd ed (2025) RS 28, 2025, DI Rule 28-11.
1 Sentrachem Ltd v Prinsloo 1997 (2) SA I (A) I 5J to 16D 8 Lillicrap, Wassenaar and Parl11ers 1' Pi/kinl{/011 Brothers (SA) (Pty) Ltd 1985 (I) SA 4 75 (A).
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as the duty not to damage property or cause personal injury) and cases where
the duty arises solely from the contract (such as the duty of a professional to
perform with due skill). In the latter category , the court held that no delictual
claim lies.
[15] In CGU Insurance Ltd v Rumdel Construction ,9 the SCA considered an
amendment seeking to change the contract on which the claim was based from
one insurance po licy to another. The court held that the debt rema ined the
same because the underl ying obligation (to indemnify for a spec ified loss)
and the factual basis were unchanged. However, the court was careful to
distinguish cases where the amendment sought to change the nature of the
legal obligation itself. , the Court quoted 10 with approval from Evins v Shield
Insurance Co Ltd, where Trollip JA described 'cause of action' as:
' ... the factual basis, the set of material facts, that begets the plaintiffs legal right of action
and, comp lementari ly, the defendant's ·debf .'
[ 16] In Evins v Shield Insurance Co Ltd' 1 itself, the court had to consider
whethe r a claim for damage s for bod ily injuri es and a claim for loss of support
arising from the same event constituted the same debt. The court held that
they are separate causes of action 12 . It stated:
'Where a plaintiff seeks by way of amendment to augment his claim for damages , he will
be precluded from doing so by prescription if the new claim is based upon a new cause of
action and the relevant prescriptive period has run, but not if it was part and parcel of the
9 CGU Insurance Ltd v Rumdel Construction 2004 (2) SA SA 622 (SCA). 10 Op cit fn9 at 628 8-C.
11 Evins v Shield Insuranc e Co Ltd 1980 (2) SA 814 (A).
12 Ibid 836D-E.
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original cause of action and merely repre sents a fresh quantification of the original claim
or the addition of a further item of damages.'
[17] Recently, in Rademeyer v Ferreira 13 the Constitutional Court clarified
the nature of a debt sounding in damage s fol lowing the cancellation of a
contract. The court held that such a debt is distinct from the original obligation
to perform. It found that the right to claim damages arises only upon the
cancellat ion of the contract. Consequently, a judicial interruption of
prescription aimed at enforcing the origina l claim for specific performance
does not operate to interrupt the prescription of the subsequent , separate debt
for damages. The debt for damages only arises in fact and in law once the
election to cance l has become effective.
[18] Whi le the Court in Rademeyer dealt with specific performance and
damages with in the contractual sphere, the reasoning is instructive to the
extent that different remedies , even arising from the same contract, can
constitute different debts for prescription purpos es. ln particu lar, claims
arising under different legal foundations , contract and delict, constitute
different debts.
Evaluat ion
[19] The crisp issue for determination is whether the proposed amendment
seeks to introduce a new cause of action (a delictual claim) that has
prescribed, or whether it merely clarifies the same underlying debt originally
claimed.
13 Rade111eyer v Ferreira 2025 (2) SA I (CC) para 92.
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[20] The applicant pleaded the existence of an agreement, its terms, and a
breach thereof. The fact that the applicant also pleaded negligence does not
convert a contractual claim into a de) ictual claim; it merely pleads the manner
of the breach. As was stated in Lillicrap 14, contract and delict are separate
legal bases for liability.
[21] The proposed amendment seeks to delete all references to the
agreement and instead plead a legal duty of care arising ex lege. This is a
fundamentally different legal basis for liability. In contract, the duty arises
from the agreement between the patties as opposed to delict which, as stated
in Minister van Polisie v Ewels 15, the duty arises from the community's legal
convictions and exists independently of any agreement.
[22] The question then is whether this change in legal basis constitutes a
new debt for prescription purposes. In my view, it does. The debt in contract
is the obligation to pay damages for breach of a voluntarily assumed
obl igation. The debt in de) ict is the obligation to pay damages for breach of
a duty imposed by law. These are different legal obligations, even though
they may arise from the same factual matrix and seek monetary compensation
as the same outcome.
[23] In the present case, the delictual debt (the claim damages for breach of
a legal duty) became due on 15 December 2020, as pleaded in the proposed
amendment. Section l l(d) of the Prescription Act provides that the period of
prescription for any debt other than those specified in paragraphs (a), (b), and
14
Op cit fn 8.
15 Minister van Polisie v El\'(ds 1975 (3) SA 590 (A) at 596H-597 A.
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( c) shall be three years. The delictual claim therefore prescribed on 15
December 2023, unless prescription was interrupted.
[24] The applicant argues that prescription was interrupted by the service of
the combined summons in April 2023. However, in terms of s 15(1) of the
Prescription Act, prescription is interrupted by service on the debtor of any
process whereby the creditor claims payment of the debt. It follows logically
that the process must claim payment of the debt in question. The combined
summons claimed payment of a contractual debt, not a delictual debt. It did
not, and could not, interrupt the prescription of a debt that was not claimed.
[25] I am mindful that a court has a discretion whether to grant an
amendment, and that this discretion must be exercised judicially. However,
where the amendment would clearly introduce a prescribed claim, it would
be unjust to allow it.
Order
[26] In the result, the following order is made:
1. The applicat ion for leave to amend is dismissed.
2. The applicant is ordered to pay the costs of the application on Scale B.
M WESS ELS
ACTING JUDGE OF THE HIGH COURT
NORTH WEST DIVISION, MAHIKENG
Appearances
For applicant
Instruct ed by
For the respondent
Instructed by
:Mr SA Mtsweni
:S Tsotetsi Attorneys Inc
:Middel burg
:c/o Kgomo Attorneys
:Mahikeng
:Adv NG Laubscher
:Lourens Bezuidenhout Inc
:Klerksdorp
:c/o Smit Teeth ling
:Mah ikeng
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