THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

Reportable

Case No 323/2002

In the matter between
CGU INSURANCE LIMITED

Appellant
and
RUMDEL CONSTRUCTION (PTY) LIMITED
Respondent
Coram Marais, Scott & Cloete JJA, Jones et Shongwe AJJA
Heard:

14 March 2003
Delivered:
16 May 2003
Summary:
Amendment to pleadings – substitution of one
contract for another - prescription – whether
amended pleading introduces a prescribed debt.

JUDGMENT

JONES AJA:
[1] This appeal raises the issue of whether or not an
amendment to the plaintiff’s particulars of claim has the effect of
introducing a new claim which had become prescribed.

[2] I shall for convenience refer to the parties as they are
referred to in the pleadings. The plaintiff (respondent on appeal) is
Rumdel Construction (Pty) Ltd, an engineering concern which was
engaged in building roads and bridges in Mozambique during 1996
and 1997. The defendant (appellant on appeal) was its insurer in
respect of storm damage to the works in terms of contracts of
insurance which were in force and effect during separate periods
in 1996 and 1997. In September 2000 the plaintiff issued
summons against the defendant for payment of R1 641 968-00

and R3 454 576-77 for loss alleged to be caused by storm damage
which occurred during the periods 13 March to 15 March 1996 and
22 February to 26 February 1997 respectively. These amounts are
alleged to be due and payable in terms of a single contract of
insurance identified in and annexed to the particulars of claim as
“contract works policy No CW 654262”. On 29 February 2001 the
plaintiff gave notice of its intention to amend the particulars of
claim in two respects. The first was to insert an allegation that the
defendant is liable to indemnify it by reason of two contracts of
insurance and not a single contract as originally pleaded. The
amendment alleges that the contract of insurance identified in and
annexed to the particulars of claim prior to the amendment,
contract works policy No CW 654262, which was in force for the
period 31 October 1996 to 1 July 1997, is the basis for liability for
the second occurrence of storm damage sustained in February

1997; and that a different contract, contract works policy No CW
628025, which was in force for the period 6 June 1995 to 1 April
1996, is the basis of liability for the first occurrence of storm
damage sustained in March 1996. The second leg of the
amendment was to convert the amount of the claims from rands to
United States dollars. The application for the amendments was
opposed. Goldstein J in the court a quo did not allow the
amendment converting the claim from rands to dollars. That part of
his decision is not on appeal. But he allowed the application for the
other amendment. The defendant now appeals against that
decision, with leave from the court a quo.

[3] The defendant’s objection to the amendment and its
argument on appeal is summarized in the notice of objection. It
says that the amendment seeks to introduce a new contract,

contract works policy No CW 628025, which had not been alleged
before and which provides indemnity cover for loss for the period
13 to 15 March 1996. The amendment is thus said to introduce ‘a
new cause of action or right of action’ based upon the newly
alleged contract. This ‘cause of action or right of action’ arose
more than three years before the notice of intention to amend,
which is the applicable period of prescription laid down by the
Prescription Act 68 of 1969, and the defendant accordingly
contended that the amendment sought to introduce a prescribed
claim.

[4] In developing this argument counsel for the defendant began
with the submission that a plaintiff is not precluded from amending
his claim provided that the debt which is claimed in the
amendment is the same or substantially the same debt as

originally claimed. Counsel’s further submissions may be
summarized as follows. The debt in the amended claim is not
substantially the same debt as originally claimed because the
plaintiff confused two different rights arising from two different
sources, and that the summons which interrupted prescription of
the right originally enforced did not interrupt prescription in respect
of the essentially different right in the amendment. The right which
the plaintiff originally sought to enforce had its source in the
contract numbered CW 654262, and the summons only operated
to interrupt the running of prescription of rights which arise from
that contract. It did not operate to interrupt the running of
prescription of other rights flowing from the second contract
alleged for the first time in the amendment. Thus, where there are
two separate and different rights to payment arising from two
separate and different contracts, and where one is apparent from

the earlier pleadings and the other not, the earlier summons did
not interrupt prescription of the other or second right. Counsel
pointed out that if the plaintiff succeeded in proving all the
allegations in the original particulars of claim it would inevitably fail
in respect of the claim for the loss which occurred on 13 to 15
March 1996 because the contract upon which it relied did not
provide cover for that period.
[5] In my view this argument must fail. It commences with the
sound premise that an amendment is permissible provided that the
debt which is claimed in the amendment is the same or
substantially the same debt as originally claimed (Mazibuko v
Singer;1 Associated Paint & Chemical Industries (Pty) Ltd t/a
Albestra Paint and Lacquers v Smit;2 Sentrachem Ltd v Prinsloo3).

1979 (3) SA 258 (W) 265 D – 266 C.
2000 (2) SA 789 (SCA) 794 C – G.
1997 (2) SA 1 (A) 15 A – 16 D.

The fallacy in the argument lies in the development which followed.
It overlooks the broad meaning given by this court to the word
‘debt’ in the Prescription Act and in doing so in effect equates the
debt with the plaintiff’s cause of action. The defendant’s argument
is that by introducing a new contract, the plaintiff has introduced a
new cause of action. But it does not follow that by curing a
defective cause of action by introducing the contract upon which it
really relies, the plaintiff’s summons necessarily claims a different
debt. Indeed, it is settled law that a summons which sets out an
excipiable cause of action can interrupt the running of prescription
provided that the debt is cognisable in the summons and is
identifiable as substantially the same debt as the debt in the
subsequent amendment (Sentrachem Ltd v Prinsloo supra,4
Churchill v Standard General Insurance Company Ltd5).

Footnote 3 at 15 H – 16 D.

[6] The Prescription Act 68 of 1969 uses different wording from
its predecessor, the Prescription Act 18 of 1943. Section 3(1) of
the 1943 Act provided that ‘extinctive prescription is the rendering
unenforceable of a right by lapse of time’. Sections 10(1)6, 11(d)7
and 12(1)8 of the 1969 Act provide that a debt shall be
extinguished by prescription after the lapse of a period of three
years from the date upon which the debt is due. Section 15(1)9
provides that the running of prescription shall be interrupted by the
service of any process whereby the creditor claims payment of the
debt. The date upon which the debt in issue became due is 15
March 1996 when the storm damage occurred (Cape Town

1977 (1) SA 506 (A) 517 B – C.
Section 10(1):  ‘Subject to the provisions of this Chapter and of Chapter IV, a debt
shall be extinguished by prescription after the lapse of the period which in terms of the
relevant law applies in respect of the prescription of such debt.’
Section 11 lays down the periods of extinctive prescription.
Section 12(1): ‘Subject to the provisions of subsections (2) and (3), prescription
shall commence to run as soon as the debt is due.’
Section 15(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.’

Municipality and another v Allianz Insurance Co Ltd ),10 and the
period of three years elapsed at midnight on 14 March 1999. This
date was extended by agreement between the parties to 15 March
2000. The plaintiff’s summons and particulars of claim were issued
and served before that date. In them the plaintiff claimed payment
of a debt, to use the language of the new Act, or enforcement of a
right to payment in the language of the old Act. While these
concepts are ‘merely opposite poles of one and the same
obligation’ (Cape Town Municipality and another v Allianz
Insurance Co Ltd),11 it is important to bear in mind that the courts
are now specifically concerned with prescription of a ‘debt’ within
the meaning of the 1969 Act. The Act does not define ‘debt’ and
‘there is . . . a discernible looseness of language’ in its use thereof
with the result that ‘debt’ means different things in different

1990 (1) SA 311 (C) 324 E-G.
Footnote 10 supra at 331 C – D.

contexts. For this reason 'debt' in the context of section 15(1) must
bear ‘a wide and general meaning’.12 It does not have the technical
meaning given to the phrase ‘cause of action’ when used in the
context of pleadings (Standard Bank of South Africa Ltd v
Oneanate Investments (in liquidation)).13 In Evins v Shield
Insurance Co Ltd14 Trollip JA made a point of the distinction
between ‘debt’ and ‘cause of action”, and describes the latter in the
following way:
‘ “Cause of action” is ordinarily used to describe the factual basis, the set of
material facts, that begets the plaintiff's legal right of action and,
complementarily, the defendant's 'debt', the word used in the Prescription Act.’

Cape Town Municipality and another v Allianz Insurance Co Ltd footnotes 10 and 11
supra at 330 E – G, quoting Evins v Shield Insurance Co Ltd 1979 (3) SA 1136 (W) at 1141 F
- G; Oertel en Andere NNO v Direkteur van Plaaslike Bestuur en andere 1983 (1) SA 354 (A)
at 370 B.
1998 (1) SA 811 (SCA) at 826 J.
1980 (2) SA 814 (A) at 825 F - G. ‘Cause of action’ is also defined in McKenzie v
Farmers’ Co-op Meat Industries Ltd 1922 AD 16 at 23; Abrahamse & Sons v SA Railways
and Harbours 1933 CPD 626; Evins v Shield Insurance Co Ltd supra per Corbett JA at 838 D
– G; Imprefed (Pty) Ltd v National Transport Commission 1990 (3) SA 324 (T) at 328 G – 329
A.

The debt is not the set of material facts. It is that which is begotten
by the set of material facts. This court has, furthermore, recently
considered the meaning of the word ‘debt’ in the Prescription Act
on a number of occasions. In Drennan Maud and Partners v
Pennington Town Board15 Harms JA again emphasized that ‘debt’
does not mean ‘cause of action’, and indicated that the kind of
scrutiny to which a cause of action is subjected in an exception is
inappropriate when examining the alleged debt for purposes of
prescription. In Provinsie van die Vrystaat v Williams NO16 Olivier
JA warned against the danger of being misled by cases which fail
to distinguish properly between the debt and the cause of action
upon which it is based. See also the Sentrachem Ltd case supra17

1998 (3) SA 200 (SCA) 212 G –I.
2000 (3) SA 65 (SCA) 74 E.
Footnote 3 at 15 A – 16 D.

and Associated Paint & Chemical Industries (Pty) Ltd t/a Albestra
Paint and Lacquers v Smit supra.18

[7] When a court is called upon to decide whether a summons
interrupts prescription it is necessary to compare the allegations
and relief claimed in the summons with the allegations and the
relief claimed in the amendment to see if the debt is substantially
the same (Wavecrest Sea Enterprises (Pty) Ltd v Elliot19). In this
case there is no amendment to the relief claimed.

[8] I accept that the amendment introduces a new insurance
contract as the basis for the claim for the loss which occurred in
March 1996. But an objective comparison between the original
particulars of the claim and the particulars of claim as amended

Footnote 2 at 794.
1995 (4) SA 596 (SE) 600 H – J.

leaves me in no doubt that although part of the cause of action is
now a different contract, the debt is the same debt in the broad
sense of the meaning of that word. The original pleadings convey,
in that broad sense, that the debt was payable by reason of a
contractual undertaking to indemnify the plaintiff for the loss which
occurred in March 1996, a loss which is fully particularized and of
which notice was allegedly given after the occurrence as required
by the policy. That is also how it is described in the amendment. I
can find no grounds for concluding in this case that a change in the
contract relied upon means that a different debt was claimed.

[9] The defendant placed considerable reliance on the case of
Neon and Cold Cathode Illuminations (Pty) Ltd v Ephron.20 That
case involved two contracts with two different parties, and the

1978 (1) SA 463 (A).

plaintiff initially sued the wrong party on one of the contracts. The
court held that the original summons did not operate to interrupt
the running of prescription on a subsequent claim based on the
second contract. The defendant in this case argued, by parity of
reasoning, that the plaintiff did not interrupt the running of
prescription on a claim based on contract CW No CW628025,
which provided cover for an occurrence in March 1996, by issuing
summons on contract No CW654262, which did not. In my opinion
this is an invalid argument based upon superficial similarities
between this case and the Ephron case. It ignores points of
distinction that go to the root of the matter. The original summons
in Ephron was for a claim by a landlord for the recovery of rent
from his tenant. The claim failed because the defendant was not
the tenant. He was a surety for the obligations of the tenant. The
plaintiff then issued summons against him as surety under the

suretyship agreement, and, in order to meet a defence of
prescription, he argued that the previous summons for payment of
rent had interrupted the running of prescription. The court held that
it had not.  This was because the claim against the surety was not
the same as the claim against the tenant. The judgment lays
emphasis21 on the contractual relationship and the reciprocal rights
and obligations flowing from a contract of lease which are
essentially entirely different from the relationship and the rights
and obligations flowing from a contract of suretyship. This enabled
the court to conclude22 that in the first summons the plaintiff sued
to enforce a right which was non-existent because the defendant
was not a tenant and could never be liable for payment of rent.
The first summons would not interrupt the running of prescription
on the claim for rent against the real tenant, and did not interrupt

At 471 C – 472 E.
At 472 F.

the running of prescription on the claim against his surety. These
points of distinction are differences of principle. They do not arise
in the present case, which must be decided in the light of its own
facts and circumstances. The contractual relationship alleged in
this summons and this amendment was and remains one of
insurer and insured, and the debt was and remains the same debt
for the same loss, notwithstanding that it became payable by
reason of an earlier contract of insurance and not the one originally
pleaded.

[10] The defendant also placed reliance on the judgments in
Imprefed (Pty) Ltd v National Transport Commission23 and Evins v
Shield Insurance Co Ltd.24 I believe that both cases are
distinguishable on the facts and do not assist the plaintiff. In the

See footnote 14.
See footnote 14.

Imprefed (Pty) Ltd case the court held that a claim for payment of
an amount due under a contract was different from a claim for
damages based upon breach of contract so that pursuance of the
one debt did not interrupt the running of prescription on the other.
The nature of the other debt was different. So also in Evins’s case
which held that a claim for compensation for bodily injury sustained
by the plaintiff was not substantially the same as her claim for
damages for loss of support following the wrongful killing of her
breadwinner, with the result that a summons claiming one did not
interrupt the running of prescription on the other.

[11] In the result the appeal is dismissed with costs.

RJW JONES
Acting Judge of Appeal

CONCUR:

MARAIS JA
SCOTT JA
CLOETE JA
SHONGWE AJA