THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable

Case No:  754/2012

In the matter between:
SOLENTA AVIATION (PTY) LTD

Appellant
and
AVIATION @ WORK (PTY) LIMITED

Respondent

Neutral citation:
Solenta v Aviation @ Work  (754/2012) [2013] ZASCA 103
(12 September 2013)
Coram:
Mthiyane AP, Ponnan, Tshiqi and Willis JJA and Meyer AJA
Heard:
23 August 2013
Delivered:
12 September 2013
Summary:
Prescription – Extinctive prescription – s 15(1) of the
Prescription Act 68 of 1969 – whether the running of
prescription is interrupted by service on debtor of combined
summons whereby action is instituted by a plaintiff company
which is not the creditor but subsequently substituted with the
true one by means of an amendment after the prescriptive
period.

ORDER

On appeal from: the North Gauteng High Court, Pretoria (JW Louw  J sitting as court of
first instance):
The appeal is dismissed with costs, including the costs of two counsel.

JUDGMENT

Meyer AJA (Mthiyane AP, Ponnan, Tshiqi, Willis JJA concurring):

[1] This is an appeal against a judgment of Louw J, sitting in the North Gauteng High
Court, in which he upheld a special plea of prescription raised by the respondent,
Aviation @ Work (Pty) Ltd, against a claim for payment of damages brought against it
by the appellant, Solenta Aviation (Pty) Ltd.
[2] On 13 March 2007, a combined summons was issued in the name of Solenta
Aviation Workshops (Pty) Ltd (Solenta Aviation Workshops) against the respondent.  A
plea with a claim in reconvention was in due course delivered by the respondent,
followed by the delivery of a replication and a plea to the claim in reconvention in the
name of Solenta Aviation Workshops.
[3] It was common cause on the pleadings that on or about 22 March 2006 and at
Wonderboom, Pretoria, Solenta Aviation Workshops, as lessor, and the respondent, as
lessee, concluded a written agreement - referred to as the ‘Aircraft Dry Lease
Agreement’ – in terms whereof Solenta Aviation Workshops leased a certain Cessna
aircraft to the respondent (‘the contract’).  A copy of the contract upon which reliance
was placed was annexed to the particulars of claim, and admitted.  Solenta Aviation

Workshops in convention and the respondent in reconvention claimed damages against
each other resulting from the other party’s alleged breach of the contract.
[4] The description of the lessor in terms of the contract is ‘Solenta Aviation (Pty)
Ltd’ and not Solenta Aviation Workshops as described in the combined summons and in
the particulars of claim.  On 18 August 2009, a notice of intention to amend was
delivered in which notice was given that the description of the plaintiff was to be
amended to ‘Solenta Aviation (Pty) Ltd’ by the deletion of the word ‘Workshops’ where it
appears in the summons and in paragraph 1 of the particulars of claim.  The respondent
objected to the proposed amendment on the grounds that it would amount to a
substitution of one plaintiff for another and that any claim that Solenta Aviation (Pty) Ltd
might have had against the respondent had prescribed.  An application for leave to
amend the citation of the plaintiff was then brought.
[5] In granting the amendment on 31 March 2010, Potterill J held that the description
of the plaintiff amounted to a misnomer rather than a substitution of the correct plaintiff
for the wrong one.  She held that the true identity of the plaintiff was recognisable from
the particulars of claim and the annexed contract and that service of the summons on
the respondent had interrupted the running of prescription in terms of s 15(1) of the
Prescription Act.1
[6] The amendment was effected on 7 April 2010.  The respondent thereupon
amended its plea by raising a special plea of prescription to the appellant’s claim.  The
appellant delivered a replication in answer to the respondent’s special defence.  It is
common cause on these further pleadings that Solenta Aviation Workshops and the
appellant were both registered companies and therefore separate legal entities. It is
also common cause that the contract was concluded between the appellant and the
respondent;  that no contractual relationship existed between Solenta Aviation
Workshops and the respondent at the time of instituting the action;  and, that Solenta
Aviation Workshops was not a creditor of the appellant.

1 Prescription Act 68 of 1969.

[7] It is alleged in the special plea that service on the respondent of the summons
whereby Solenta Aviation Workshops claimed payment of damages arising from the
respondent’s alleged breach of the contract - which breach is alleged in the particulars
of claim to have taken place on or about 13 May 2006 - did not interrupt the running of
prescription in terms of s 15(1) of the Prescription Act and that a period of more than
three years had lapsed since the alleged breach and the delivery of the notice of
intention to amend the citation of the plaintiff or of the actual substitution of the appellant
for Solenta Aviation Workshops.
[8] The appellant responded in its replication to the special plea that, although
incorrectly described in the summons and particulars of claim, it was the company that
instituted the action against the respondent on 13 March 2007 and that that process
conveyed to the reader the intention of the appellant, as creditor, to claim payment from
its debtor, the respondent.  The defence of res iudicata in the form of what has become
known as issue estoppel is also raised.  It is alleged that, in dismissing the respondent’s
objection to the proposed amendment, ‘… the court determined the identical issue
between the identical parties now raised in the special plea …’ and that the respondent
‘… is accordingly, and in addition, issue estopped on the issue raised in the special
plea.’

[9] The trial on two separated issues proceeded before Louw J.  He was only
concerned with the issues of res iudicata and prescription while the remaining issues
stood over for later determination.  No evidence was led and the parties confined
themselves to the documents that formed part of the record.  In upholding the special
plea of prescription, the court a quo followed the decision of this court in Blaauwberg
Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd 2 and held that the summons
that was served in this instance, objectively considered, failed to communicate to the
defendant (respondent) the intention of the plaintiff (appellant) to claim payment of the
debt.  It held that the summons did not meet the objects of s 15(1) of the Prescription
Act and it did not interrupt prescription.  In dismissing the plea of res iudicata, the court
a quo held that the application for amendment was interlocutory and the finding of

2 Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd 2004 (3) SA 160 (SCA).

Potterill J was not one that finally disposed of an issue in the action between the
parties.3  In the result, the appellant’s claim was dismissed with costs, including the
costs of two counsel.  The appellant appeals to this court with the leave of the court a
quo.  This appeal concerns the same issues of prescription and res iudicata.
[10] In terms of s 12(1) of the Prescription Act, prescription begins to run when the
debt becomes due.  It is common cause between the parties that the debt which forms
the subject of the appellant’s claim became due on 13 May 2006.  Sections 10(1) and
11(d) provide for a period of prescription of three years in the present case.  The notice
of the application to amend the citation of the plaintiff was given on 18 August 2009,
which was after the prescriptive period.  Section 15(1) provides as follows:
‘The running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service
on the debtor of any process whereby the creditor claims payment of the debt.’  (Underlining added.)
[11] The question to be decided is therefore whether the combined summons served
on the respondent by which action was instituted in the name of Solenta Aviation
Workshops was a claim by the creditor of the debt, which it is now common cause is the
appellant, in compliance with the provisions of s 15(1).
[12] The general rule or test applicable in the determination of whether there is
compliance with s 15(1) was re-affirmed by this court in Blaauwberg thus:4
‘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

3 The court a quo followed the decision of the Full Court of the Western Cape High Court in Anglo Dutch
Meats (Exports) Limited v Blaauwberg Meat Wholesalers CC  2002 CLR 292 (C) paras 17-19.
4  Fn 2 supra para 13.

letter of demand received by the debtor shortly before service of the process. Compare Standard Bank of
SA Ltd v Oneanate Investments (Pty) Ltd 1995 (4) SA 510 (C) at 553E-G.’5
[13] In Standard Bank of SA Ltd v Oneanate Investments (Pty) Ltd, the case referred
to in the above quotation, Selikowitz J stated the test as follows:
‘The test as to whether any given process interrupts prescription in respect of a particular debt must be an
objective one.  The process in question must be objectively considered.  Knowledge which one or both of
the parties may have dehors the process cannot affect its interpretation or its interruptive effect.  More
particularly, the fact that the plaintiff may subjectively intend to claim a particular debt, and that defendant
may, by virtue of extrinsic knowledge, appreciate that plaintiff has wrongly identified the debt in his
summons, cannot convert the summons into one which interrupts prescription in respect of any debt other
than the one identified in the process.  It is the process which interrupts prescription, not the plaintiff’s
subjective intention to sue.’
[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 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

5  In Associated Paint & Chemical Industries (Pty) Ltd t/a Albestra Paint and Lacquers v Smit 2000 (2) SA
789 (SCA) para 18 this court applied the objective test and concluded that the claim made in the
summons was, on a plain reading, not that of the true creditor.

‘domicilium citandi et executandi’ communicated to the respondent the correct identity of
the 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).6  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.7  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.

6 Fn 5 para 16.
7 Fn 5 para 6.

[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.
[18] The appellant’s counsel resisted the request on behalf of the respondent that a
costs order in favour of the respondent include the costs of two counsel.  I consider the
employment of two counsel on behalf of the respondent to have been prudent and not
extravagant.
[19] In the result the following order is made:
The appeal is dismissed with costs, including the costs of two counsel.

P A Meyer
Acting Judge of Appeal

APPEARANCES:

For  Appellant:

D J Vetten

Instructed by:

Darryl Furman & Associates

Pretoria

Matsepes Incorporated

Bloemfontein

For Respondent:

M C Erasmus SC and

N C Hartman

Instructed by:

Mathys Krog Attorneys

Pretoria

Hugo & Bruwer Attorneys

Bloemfontein
THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:
12 September 2013
Status:
Immediate

Please note that the media summary is intended for the benefit of the media and does not
form part of the judgment of the Supreme Court of Appeal.

SOLENTA v AVIATION

The Supreme Court of Appeal today dismissed an appeal against a judgment of the
North Gauteng High Court in which a special plea of prescription raised by the
respondent, Aviation @ Work (Pty) Ltd, against a claim for payment of damages
brought against it by the appellant, Solenta Aviation (Pty) Ltd, was upheld.  The
action was commenced by the service of a combined summons on the respondent
that was issued in the name of Solenta Aviation Workshops (Pty) Ltd as creditor of
the debt that formed the subject of the claim.  The summons was amended after the
expiry of the prescriptive period to reflect the appellant as the creditor.  The Supreme
Court of Appeal held that, objectively considered, the claim originally made in the
combined summons was, on a plain reading of the process, not that of the true
creditor, which is the appellant, and that service of that process on the respondent
did not interrupt the running of prescription in terms of s 15(1) of the Prescription Act
68 of 1969.