A recent judgment by a full bench of the Kwazulu-Natal High Court has revitalized the debate whether an amendment to a pleading should be allowed if the claim, as amended, has prescribed. In Heramoney Salligram and Others v Nalin Salligram and Others,  ZAKZPHC 63 (20 September 2019), the court was presented with a case where the first appellant sought to amend its particulars of claim by replacing an alleged oral agreement involving a debt payable by the first respondent with a cession agreement.
The respondents opposed the amendment, and argued that, by referring to a new cession agreement, the claim in question was based on a different and separate agreement, and therefore a different debt was now being claimed. Since this debt had prescribed, they argued that the amendment ought not be allowed.
In coming to the conclusion that the amendment should be allowed, the KZN High Court framed the question in the following terms: was the appellant claiming payment of the same debt or a different debt in its amended particulars? To answer this question, the court stressed that the term “debt” referred to in the Prescription Act of 1969 is not the same as the cause of action upon which the debt is based. A cause of action refers to the factual basis, the set of material facts that forms the basis of the plaintiff’s legal right of action. That can be amended. However, the debt which forms the basis of the plaintiff’s right of action needs to remain the same if an amendment is to be allowed.
To bring home this point, the court explained that, even an original summons which fails to disclose a cause of action may interrupt the running of prescription provided that the right of action in the amended summons is recognizable as the same or substantially the same right of action as that disclosed in the original summons.
Finally, the court held that the application for an amendment is not normally the proper forum to decide the issue of prescription. Once prescription is not common cause, the plaintiff should not be deprived of his chance to put his claim before the court. The defendant will have the opportunity to raise the defence of prescription in its plea in the same way that it would raise any other defence once the amendment has been granted.
The respondents in Salligram may have made a tactical blunder by opposing the amendment on the basis that the claim had prescribed. Even if an amendment incorporates a fresh cause of action, our courts are usually inclined to allow it as long as no prejudice results that cannot be cured by an order of costs. Mabaso and Others v Minister of Police and Another 1980 (4) 319 (CPD). Even though the amendment has the effect of changing the character of the action and will necessitate fresh evidence to be led, our courts will still allow it if it is necessary to determine the real issues between the parties. Myers v Abramson 1951 (3) SA 438 (C).
For example, in Cordier v Cordier 1984 (4) 524 (CPD) the court, in an application for an amendment, found that the plaintiff’s claim had actually prescribed, both in its original form and in its amended form. The court, however, granted the amendment, taking the view that the plaintiff might be able to counter the defence of prescription by proving an acknowledgement of liability by the defendant, a waiver of the defence of prescription, or some other argument. The grant of the amendment would leave it open to the plaintiff to raise these arguments, whereas refusal of the amendment would leave the plaintiff no option but to appeal.
(Repeated with permission)
Author : Ivor Hayman
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