THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Not Reportable
Case no: 343/2021
In the matter between:
DION RADEMEYER

APPELLANT
and
THOMAS IGNATIUS FERREIRA

RESPONDENT

Neutral citation:
Rademeyer v Ferreira (343/2021) [2022] ZASCA 92 (17 June
2022)

Coram:
MAKGOKA, PLASKET and GORVEN JJA and MATOJANE and
SMITH AJJA

Heard:
10 May 2022

Delivered:
17 June 2022

Summary:  Civil procedure – prescription – contract – agreement of sale –
whether the respondent's claim instituted by action proceedings in April 2016 had
prescribed – whether a claim for cancellation of a contract and consequential
damages action instituted under a different case number constituted a 'step' in the
enforcement of a claim for payment of a debt.

ORDER

On appeal from: Eastern Cape Division of the High Court, Port Elizabeth
(Govindjee AJ, sitting as a court of first instance):

The appeal is dismissed with costs.

JUDGMENT
Matojane AJA (Makgoka, Plasket and Gorven JJA and Smith AJA
concurring):
[1] This is an appeal against the judgment of the Eastern Cape Division of the
High Court, Port Elizabeth (the high court), in which the appellant's special plea of
prescription was dismissed with costs. The appeal is before us with the leave of
the high court.

[2] On 27 August 2008, the parties concluded a written agreement of sale. The
appellant, Mr Rademeyer, purchased an immovable property from the respondent,
Mr Ferreira, for R950 000. The appellant paid R190 000 as a deposit. However,
he refused to sign the required documents to effect the transfer registration into
his name and furnish guarantees for payment of the purchase price balance.

[3] As the applicant in the high court, the respondent brought an application for
rectification of the deed of sale and an order compelling the appellant to sign the
necessary transfer documents to effect registration of transfer of the property into
his name. Furthermore, the respondent sought an order that, in the event of the

appellant failing to comply with his obligations within five days of the service of the
order upon him, the agreement would be cancelled, and the respondents would be
entitled to claim damages.

[4] On 7 August 2012, Pickering J granted the relief sought by the respondent
as per the notice of motion. This part of the relief sought read as follows:
‘4.
That in the event of the Respondent failing to comply with his obligations within
five (5) days of service of this order upon the Respondent, cancellation of the said
agreement of sale and damages.’

[5] The appellant failed to comply with the above order. In 2016, and under the
same case number and in the same application, the respondent applied for
amended relief for payment of damages as a result of the appellant's failure to
comply with the order of Pickering J. Thereafter, the appellant filed a rule 30(1)
notice contending that the order of Pickering J was a final order, as it disposed of
all the relief set out in the first application.

[6] As a result of the objection, and in March 2016, the respondent withdrew
the interlocutory application and issued fresh summons under a new case number,
in which the respondent sought payment of the sum of R854 182.20 as damages
arising from the appellant's failure to comply with the original order of Pickering J
and cancellation of the agreement.

[7] The appellant filed a special plea to this claim contending that the claim had
become prescribed, as the respondent failed to institute the action by 23 August
2015, which was three years from the date on which the order of Pickering J was
granted plus five days.

[8] The special plea of prescription was argued before the high court and
adjudicated based on an agreed statement of facts in the form of a special case in
accordance with the provisions of rule 33(1) of the Uniform Rules of Court. The

high court found for the respondent on three grounds. Firstly, it held that the service
of the notice of motion on the appellant, which included a claim for cancellation
and damages, interrupted prescription; secondly, that the interruption of
prescription had not lapsed, as the two processes dealt with the same cause of
action; and lastly that the second step, that is the cancellation of the agreement
and the claim for damages, did not have to take place within three years of the
order granted by Pickering J.

[9] In this Court, the respondent abandoned his earlier assertion that the order
of Pickering J constitutes a judgment debt in terms of s 11(a)(ii) of the Prescription
Act 68 of 1969 (the Act), which provides that the prescriptive period for a judgment
debt is 30 years. While the order of Pickering J constitutes a 'debt' for the purposes
of s 11(d) of the Act, it does not constitute 'a judgment debt' as envisaged in s
11(a)(ii) of the Act, as it is not final in effect.

[10] Section 10 of the Act provides that a debt shall be extinguished by
prescription after the lapse of the period that applies in respect of such debt.

[11] Section 11(d) of the Act provides as follows:
'(11)
The periods of prescription of debts shall be the following:
. . .
(d)
save where an Act of Parliament provides otherwise, three years in respect of any
other debt.'

[12] Section 15 of the Act is headed ‘Judicial interruption of prescription’ and
provides in relevant part as follows:
'(1)
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.
(2)
Unless the debtor acknowledges liability, the interruption of prescription in terms
of subsection (1) shall lapse, and the running of prescription shall not be deemed to have
been interrupted, if the creditor does not successfully prosecute his claim under the

process in question to final judgment or if he does so prosecute his claim but abandons
the judgment or the judgment is set aside.
(3)
. . .
(4)
If the running of prescription is interrupted as contemplated in subsection (1) and
the creditor successfully prosecutes his claim under the process in question to final
judgment and the interruption does not lapse in terms of subsection (2), prescription shall
commence to run afresh on the day on which the judgment of the court becomes
executable.
(5)
. . .
(6)
For the purposes of this section, “process” includes a petition, a notice of motion,
a rule nisi, a pleading in reconvention, a third party notice referred to in any rule of court,
and any document whereby legal proceedings are commenced.'

[13] Counsel for the appellant submitted that the respondent did not pursue the
relevant relief in the prior application to its logical conclusion, as the respondent
abandoned and withdrew that application. He contended that the present
proceedings were new and were not instituted within the three-year prescriptive
period, and had thus become prescribed. On the other hand, counsel for the
respondent submitted that service of the notice of motion on the appellant in the
initial application in 2012 interrupted prescription in respect of the respondent's
cause of action, including the cause of action in respect of the damages claim. He
further submitted that the claim in respect of damages related to the same cause
of action, which was interrupted by prescription when the 2012 notice of motion
was served on the appellant.

[14] The crucial question that arises for decision is two-fold. Firstly, whether
service of the notice of motion in 2012 constituted 'a process whereby the creditor
claims payment of the debt' within the meaning of s 15(1) of the Act. Secondly,
whether the issuing of summons claiming damages under a different case number
amounted to the prosecution of 'the process in question' as contemplated by s 15
(4) of the Act. It bears mentioning that s 15(1) does not refer to a cause of action,
but to claiming of a 'debt'. Therefore, in order for prescription to be interrupted,

there must be a right enforceable against the debtor in respect of which
prescription is running, and the process served on the debtor instituting legal
proceedings must be to enforce that right.1

[15] The phrase 'any process' contained in s 15(1) is clearly that by which
prescription was originally interrupted. It is that process which must be successfully
prosecuted to final judgment by the creditor.2 The expression ‘claims payment of
the debt' in s 15(1) was considered in Cape Town Municipality and Another v
Allianz Insurance Co Ltd3 by Howie J, who, with reference to s 15(2) of the Act,
stated that:
'To return to the expression "under the process in question", clearly a final executable
judgment will be obtained "under" a process where process and judgment constitute the
beginning and the end of one and the same action.'4

[16] There were two different case numbers which sought to enforce the debt in
the current instance. One was the application seeking a declaratory order in 2012
and enforcement of the contract as a result with an alternative claim for damages.
The other was the issue of summons in 2016, in which the respondent sought to
quantify his damages consequent to the alternative part of the said order, since it
had not been complied with. It bears mentioning that, ordinarily, damages claims
are pursued by way of summons. In contrast, a declaratory order is ordinarily
pursued by way of notice of motion. This raises the question of whether these two
steps were steps in the enforcement of the same debt, or conflict with the ‘once
and for all rule’.

1 Du Bruyn v Joubert 1982 (4) SA 691 (W) at 695H-696B; Neon and Cold Cathode Illuminations
(Pty) Ltd v Ephron 1978 (1) SA 463 (A) at 470-471H.
2 Van der Merwe v Protea Insurance Co Ltd 1982 (1) SA 770 (E) at 773C (Protea Insurance).
3 Cape Town Municipality and Another v Allianz Insurance Co Ltd 1990 (1) SA 311 (C) (Allianz
Insurance).
4 Ibid at 333G.

[17] There is guidance in Allianz Insurance,5 where Howie J was called upon to
decide whether the service of a process, whereby the plaintiffs claimed a
declaratory order that the defendant was liable to indemnify them, interrupted the
running of prescription. The defendant argued that the proceedings for a
declaratory order would fall foul of the once and for all rule, as it would mean that
if the defendant failed to make payment of the plaintiff's claim after the grant of
such a declaratory order, the plaintiff would have to institute a fresh action for
payment of the money, in which action the quantum of the damages claim might
well be in issue.

[18] While acknowledging the undesirability of piecemeal litigation, Howie J
stated that the words ‘debt’ and 'payment' in s 15(1) were used in a wide and
general sense, and that claiming payment of a debt is no different in principle from
enforcing the right to payment of the debt.6 He reasoned that if the declaratory
order was to succeed and damages claims after that were instituted, although the
relief sought in the two sets of proceedings would be different, both claims would
be based on the same cause of action. He concluded that:
'1.
It is sufficient for the purposes of interrupting prescription if the process to be
served is one whereby the proceedings begun thereunder are instituted as a step in the
enforcement of a claim for payment of the debt.
2.
A creditor prosecutes his claim under that process to final, executable judgment,
not only when the process and the judgment constitute the beginning and end of the same
action, but also when the process initiates an action, judgment in which finally disposes of
some elements of the claim, and where the remaining elements are disposed of in
supplementary action instituted pursuant to and dependent upon that judgment.'7

5 Ibid.
6 Allianz Insurance fn 5 above.
7 Ibid at 334H-J.

[19] The approach by Howie J was approved by this Court in Cadac (Pty) Ltd v
Weber-Stephen Products Company and Others8 and Peter Taylor & Associates v
Bell Estates (Pty) Ltd.9

[20] As indicated above, this Court has to consider whether the institution of the
application procedure in 2012 interrupted the running of prescription in relation to
the claim that forms the basis of the present proceedings. To answer this question,
it must be determined, firstly, whether the basis of the claim in the application
procedure in 2012 was the same as the basis of the claim in the present
proceedings; secondly, whether the application proceedings were a 'step in the
enforcement of a claim for the payment of a debt'; and lastly, whether the
application proceedings disposed of some element of the claim in the current
action.

[21] The current claim for damages is based on the alternative relief in the event
of non-compliance with the order of Pickering J. The basis of the action for
damages is the same as the basis for a claim for specific performance, in that it
arose from the same facts. In fact, the right to claim damages formed part of that
order. The respondent sought to quantify his damages consequent to the
cancellation of the deed of sale when the appellant failed to comply with the main
part of the order. He could not have succeeded in the damages claim without first
establishing the appellant's liability for the damages he suffered. That liability for
damages was established by way of that order when the appellant failed to comply
within the requisite period.

[22] Next comes the question of whether the service of the initial application in
2012 constituted a 'step' in enforcing a claim for payment of a debt. It is clear that

8 Cadac (Pty) Ltd v Weber-Stephen Products Company and Others [2010] ZASCA 105; [2011] 1
All SA 343 (SCA); 2011 (3) SA 570 (SCA) para 19.
9 Peter Taylor & Associates v Bell Estates (Pty) Ltd and Another [2013] ZASCA 94; 2014 (2) SA
312 (SCA) paras 12-16.

declaratory order granted by Pickering J determined a key issue that arises in the
damages claim, namely whether the appellant was liable for damages suffered by
the respondent. The respondent could not succeed in his damages claim without
first establishing that the appellant was liable for his damages. The claim for
specific performance, alternatively damages, before Pickering J accordingly
constituted a crucial step in the process of recovering the debt.

[23] Applying the above interpretation, it follows that the service of the notice of
motion in the application for a declaratory order, alternatively damages, in 2012
had the effect of interrupting the running of prescription as provided for s 15(1) of
the Act in relation to the damages claim in this case. Prescription stands
interrupted unless the judgment is abandoned or set aside on appeal.10 The
judgment of Pickering J was never abandoned. This conclusion makes it
unnecessary to consider the other arguments raised by the appellant.

[24] The appeal must therefore fail. Costs will follow that result, but given the
simplicity of the matter, the costs of two counsel are not justified.

[25] In the result, the following order is made:
The appeal is dismissed with costs.

________________________
K E MATOJANE
ACTING JUDGE OF APPEAL

10 Protea Insurance fn 2 above.

APPEARANCES

For appellant:

R G Buchanan SC
Instructed by:

Manilal Brewis Attorneys, Port Elizabeth
Symington & De Kok, Bloemfontein

For respondent:

A Beyleveld SC (with T Rossi)
Instructed by:

Friedman Scheckter, Port Elizabeth
McIntyre Van der Post, Bloemfontein
THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

From:
The Registrar, Supreme Court of Appeal
Date:

17 June 2022
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Rademeyer v Ferreira (343/21) [2022] ZASCA 92 (17 June 2022)
Today the Supreme Court of Appeal (SCA) handed down a judgment dismissing, with costs, an appeal
against the decision of the Eastern Cape Division of the High Court, Port Elizabeth (the high Court).

The issues before the SCA were whether service of the notice of motion in 2012 constituted ‘a process
whereby the creditor claims payment of the debt’ within the meaning of s 15(1) and whether the issuing
of summons claiming damages under a different case number amounted to the prosecution of ‘the
process in question’ as contemplated by s 15(4).

On 27 August 2008, the parties concluded a written agreement of sale. The appellant, Mr Rademeyer,
purchased an immovable property from the respondent, Mr Ferreira, for R950 000. The appellant paid
R190 000 as a deposit. However, he refused to sign the required documents to effect the transfer
registration into his name and furnish guarantees for payment of the purchase price balance. As the
applicant in the High Court, the respondent brought an application for rectification of the deed of sale
and an order compelling the appellant to sign the necessary transfer documents to effect registration of
transfer of the property into his name. Furthermore, the respondent sought an order that, in the event
of the appellant failing to comply with his obligations within five days of the service of the order upon
him, the agreement would be cancelled, and the respondents would be entitled to claim damages.

On 7 August 2012, Pickering J granted the relief sought by the respondent as per the notice of motion.
Consequently, the appellant failed to comply with that order. In 2016, under the same case number and
in the same application, the respondent applied for amended relief for payment of damages due to the
appellant’s failure to comply with the order of Pickering J. The appellant filed a rule 30(1) notice
contending that the order of Pickering J was a final order as it disposed of all the relief set out in the
first application. As a result of the objection, and in March 2016, the respondent withdrew the
interlocutory application and issued fresh summons under a new case number, in which the respondent
sought payment of the sum of R854 182.20 as damages arising from the appellant’s failure to comply
with the original order of Pickering J and cancellation of the agreement. The appellant filed a special
plea to this claim contending that the claim had become prescribed as the respondent failed to institute
the action by 23 August 2015, which was three years from the date the order of Pickering J was granted
plus five days. The High Court found for the respondent on three grounds.

According to the SCA, there were two different case numbers which sought to enforce the debt in the
current instance: one was the application seeking a declaratory order in 2012 and enforcement of the
contract as a result with an alternative claim for damages, and the other was the issue of summons in
2016, in which the respondent sought to quantify his damages consequent to the alternative part of the
said order since it had not been complied with.

The SCA held that it bore mentioning that s 15(1) did not refer to a cause of action but to claiming a
‘debt’. Relying on case law, the SCA held that for the prescription to be interrupted, there must be a
right enforceable against the debtor in respect of which prescription was running, and the process

served on the debtor instituting legal proceedings must be to enforce that right. In addition, the SCA
held that it bore mentioning that ordinarily, damages claims are pursued by way of summons. In
contrast, a declaratory order was ordinarily pursued by way of notice of motion. This raised the question
of whether these two steps were steps in the enforcement of the same debt or conflict with the ‘once
and for all’ rule.

Relying on case law, the SCA held that while acknowledging the undesirability of piecemeal litigation,
Howie J stated that the words ‘debt’ and ‘payment’’ in s 15(1) were used in a wide and general sense
and that claiming payment of a debt was no different in principle from enforcing the right to payment of
the debt. Moreover, the SCA held that the approach by Howie J was approved by this Court in various
cases.

In order to answer the question of whether the institution of the application procedure in 2012 interrupted
the running of prescription in relation to the claim that forms the basis of the present proceedings, the
SCA held that it must be determined first whether the basis of the claim in the application procedure in
2012 was the same as the basis of the claim in the present proceedings; secondly, whether the
application proceedings were a ‘step in the enforcement of a claim for the payment of a debt’; and lastly,
whether the application proceedings disposed of some element of the claim in the current action.

The SCA held that the current claim for damages was based on the alternative relief in the event of
non-compliance with the order of Pickering J. Hence, the basis of the action for damages was the same
as the basis for a claim for specific performance in that it arose from the same facts. In fact, the right to
claim damages formed part of that order. Accordingly, the SCA held that the respondent sought to
quantify his damages consequent to the cancellation of the deed of sale when the appellant failed to
comply with the main part of the order. Thus, according to the SCA, he could not have succeeded in
the damages claim without first establishing the appellant’s liability for the damages he suffered. That
liability for damages was established by way of that order when the appellant failed to comply within the
requisite period.

Furthermore, the SCA had to deal with whether the service of the initial application in 2012 constituted
a ‘step’ in enforcing a claim for payment of a debt. According to the SCA, it was clear that the declaratory
order granted by Pickering J determined a key issue that arose in the damages claim, namely whether
the appellant was liable for damages suffered by the respondent. The SCA found that the respondent
could not succeed in his damages claim without first establishing that the appellant was liable for his
damages. Hence, the claim for specific performance, alternatively damages before Pickering J
accordingly constituted a crucial step in the process of recovering the debt.

Lastly, the SCA held that applying the above interpretation; it followed that the service of the notice of
motion in the application for a declaratory order, alternatively damages, in 2012 had the effect of
interrupting the running of prescription as provided for s 15(1) of the Act in relation to the damages claim
in this case. Relying on case law, the SCA held that prescription stood interrupted unless the judgment
was abandoned or set aside on appeal. Thus, the judgment of Pickering J was never abandoned.
Consequently, the SCA held that this conclusion made it unnecessary to consider the other arguments
raised by the appellant. Finally, the SCA held that the appeal must therefore fail.
~~~~ends~~~~