THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA
Reportable
Case no: 01/03
In the matter between:
FIRSTRAND BANK LIMITED
Appellant
and
NEDBANK (SWAZILAND) LIMITED
Respondent
_____________________________________________________
Coram:
SCOTT, MTHIYANE, NUGENT, LEWIS JJA
et  PONNAN AJA
Date of hearing: 23  MARCH 2004
Date of delivery: 30 MARCH 2004
Summary:
Special plea of prescription – amendment of particulars of claim – different right
of action – prescription not interrupted
_____________________________________________________
JUDGMENT
_____________________________________________________
SCOTT  JA/…

SCOTT JA:
[1] The appellant is a registered commercial bank with its
principal place of business at Bank City, Johannesburg. The
respondent is a bank registered in Swaziland. On 20 July 2000 the
respondent caused a summons issued out of the High Court,
Johannesburg, to be served on the appellant. On 26 June 2001,
after the period of prescription had elapsed, the respondent
delivered a notice of amendment. The notice was subsequently
withdrawn and replaced by a notice delivered on 2 October 2001.
Two further amendments followed but nothing turns on these. The
appellant filed a special plea in which it raised the defence of
prescription. It pleaded, in effect, that the debt which the
respondent sought to recover in the claim, as amended, was
different from the debt originally relied upon, that service of the
summons and particulars of claim on 20 July 2000 had not
interrupted the running of prescription, and that the respondent’s
claim, as amended, had accordingly prescribed. The parties
agreed upon a written statement of facts and the court a quo was
called upon to decide the issue of prescription by way of a special
case in terms of Rule 33(1). The matter came before Snyders J
who dismissed the special plea with costs, holding that the original

summons interrupted prescription in respect of the debt which the
respondent was seeking to recover in the claim as amended. The
appeal is with the leave of the court a quo.
[2] In the original particulars of claim the respondent sued as a
cessionary of a claim which Swaziland Timber Products Limited
(‘Swazi Timber’) had against the appellant based on the latter’s
unjustified enrichment at the expense of the former. The
allegations made in support of the claim were briefly the following.
Swazi Timber operated an account at the respondent’s Matsapha
branch, Swaziland. The respondent, in turn, had an automated
clearing bureau account with Nedcor Bank Ltd (‘Nedcor’) in South
Africa which it used for the purpose of clearing cheques drawn on
or by it and presented for payment in South Africa. A Mr Cawood
and a company, Diamond Laser Bureau (Pty) Ltd (‘Diamond
Laser’), operated current accounts at the appellant’s Birnam
branch in Johannesburg. The accounts were overdrawn and
Cawood and Diamond Laser were unable to settle their
indebtedness to the appellant. During September 1997 Cawood,
who was employed by Swazi Timber, removed cheques which had
been signed in blank by duly authorised signatories of Swazi
Timber and inserted his own name, and that of Diamond Laser, as

payees of the cheques. These he deposited in his and Diamond
Laser’s accounts at the appellant’s Birnam branch. Swazi Timber
instructed the respondent to stop payment of the cheques but
agreed that it had ‘no claim against the bank in the event of such
document being inadvertently paid by the bank’. Despite Swazi
Timber’s instruction, Nedcor paid the proceeds of the cheques to
the appellant as collecting banker and debited the respondent’s
automated clearing bureau account. The respondent, in turn,
debited the account of Swazi Timber with the amount of the
cheques with the result, so it was alleged, that Swazi Timber was
impoverished and the appellant was correspondingly enriched by
being able to apply the proceeds in reduction of the indebtedness
to it of Cawood and Diamond Laser which would otherwise have
been irrecoverable.
[3] The effect of the amendment both in terms of the original
notice and in terms of the notice delivered on 20 October 2001
was to delete all reference to the respondent suing as a cessionary
and to delete the allegation that Swazi Timber stopped payment of
the cheques on the terms set forth above. Instead, it was alleged
that Nedcor, in terms of its mandate from the respondent, received
the cheques in question from the automated clearing bureau,

debited the respondent’s account with the value of the cheques
and thereafter despatched them to the respondent in Swaziland for
validation of payment; that the cheques were intercepted by an
unknown party in transit and that in pursuance of an agreement
between Nedcor and the respondent, the latter bore the risk of loss
of the cheques. Accordingly, so it was alleged, the cheques were
not presented for payment to the respondent, which was thereby
prevented from debiting Swazi Timber’s account with their value
and from dishonouring and returning the cheques in terms of the
clearing house rules in time for their provisional payment to be
countermanded. It was alleged that in the result the appellant was
unjustly enriched at the expense of the respondent (no longer
Swazi Timber) entitling the latter to sue in its own right.
[4] Section 15(1) of the Prescription Act 68 of 1969 provides:
‘The running of prescription shall, subject to subsection (2), be interrupted by
the service on the debtor of any process whereby the creditor claims payment
of the debt.’
As observed by Corbett JA in Evins v Shield Insurance Co Ltd
1980 (2) SA 814 (A) at 842E-F, ‘. . . it is clear that the “debt” is
necessarily the correlative of a right of action vested in the creditor,
which likewise becomes extinguished simultaneously with the
debt’. The distinction between ‘right of action’ and ‘cause of action’

has been repeatedly emphasized by this court. More recently in
CGU Insurance Ltd v Rumdel Construction (Pty) Ltd [2003] 2 All
SA 597 (SCA), para 6, at 601c-d ‘debt’ (and hence its correlative
‘right of action’) was noted to bear ‘a wide and general meaning’;
and not the technical meaning given to ‘cause of action’, being the
phrase ordinarily used to describe the set of material facts relied
upon to establish the right of action. Even a summons which fails
to disclose a cause of action for want of one or other averment
may therefore interrupt the running of prescription provided only
that the right of action sought to be enforced in the summons
subsequent to its amendment is recognisable as the same or
substantially the same right of action as that disclosed in the
original summons. (See Sentrachem Ltd v Prinsloo 1997 (2) SA 1
(A) at 15H-16B; Churchill v Standard General Insurance Co Ltd
1977 (1) SA 506 (A) at 517B-C.) If it is, the running of prescription
will have been interrupted and it will not matter that the effect of
the amendment is to clarify or even expand the claim. (As to the
expansion of the claim, see eg Schnellen v Rondalia Assurance
Corporation of SA Ltd 1969 (1) SA 517 (W) at 520H-521G.) The
sole question in the present appeal is therefore whether the right of
action relied upon in the particulars of claim as amended is

recognisable as the same or substantially the same as that relied
upon in the particulars of claim in its original form.
[5] Counsel for the appellant referred us to Park Finance
Corporation (Pty) Ltd v Van Niekerk 1956 (1) SA 669 (T). In that
case the plaintiff issued summons in which it claimed payment of
an amount which it alleged it had in terms of a written contract
expended in connection with the construction of a residence for the
defendant. It transpired that the defendant had concluded the
contract not with the plaintiff company, but with a firm, Park
Finance Corporation, which had subsequently, but before the issue
of summons, ceded its rights under the agreement to the plaintiff.
After the prescriptive period had elapsed, the plaintiff sought to
amend its declaration accordingly. In refusing the amendment on
the ground that the claim had prescribed, Ramsbottom J held that
the right of action sought to be enforced in the original summons in
fact did not exist, while the right relied upon in the amended
summons was ‘quite a different right’ (at 673G-674C). However, in
Neon and Cold Cathode Illuminations (Pty) Ltd v Ephron 1978(1)
SA 463 (A) at 474D Trollip JA expressed some reservation about
the correctness of this decision on the facts of the case. He said,
at 474H, ─

‘. . . there is much to be said for the argument advanced by counsel for the
plaintiff on the particular facts of that case. It is summarized at p 673C-G.
Briefly it was in effect that the amendment merely sought to enforce the same
or substantially the same right of action as alleged, albeit defectively, in the
originating process, for when action was instituted there existed only one right
arising out of the one contract, which right actually did reside in the plaintiff,
not as a party to the contract as was wrongly alleged, but as the cessionary
thereof, but that error did not nullify the process. In the light of the subsequent
decisions in cases such as Van Vuuren’s and Churchill’s, supra, the decision
on the facts in the Park Finance Corporation case, supra, might well have
been wrong, but no firm view need be expressed on this aspect.’
This reservation concerning the correctness of Park Finance on
the facts was referred to by F H Grosskopf JA in Associated Paint
& Chemical Industries (Pty) Ltd t/a Albestra Paint and Lacquers v
Smit 2000 (2) SA 789 (SCA) at 795C-F, but without comment. On
facts not dissimilar to those in Park Finance Melunsky J in
Wavecrest Sea Enterprises (Pty) Ltd v Elliot 1995 (4) SA 596
(SECLD) declined to follow Park Finance, largely on the strength
of Trollip JA’s reservation as to its correctness.
[6] But even if Park Finance was not correctly decided (which it
is unnecessary to decide) it is distinguishable from the present
case. What was sought to be enforced in that case, both in the
original summons and in the amendment, was a right that accrued

from the contract in favour of the other contracting party. It was
merely in relation to the identity of that other contracting party that
the two claims differed. The right of action that was in issue was in
substance always the same. In the present case, as I shall show,
not only has the identity of the creditor changed, but the very basis
of the right of action has changed.
[7] The same might be said of Grindrod (Pty) Ltd v Seaman
1998 (2) 347 (C). In that case it was held that a summons would
not have interrupted the running of prescription in the event of it
being found that after service on the defendant the plaintiff had
ceded the claim to a third party who later, subsequent to the
completion of the prescriptive period, had ceded it back to the
plaintiff. The court reasoned that in the event of such a finding the
right of action of the plaintiff and the right of action of the
cessionary to whom it was ceded, were not one and the same, and
that prescription would have continued to run when the claim was
ceded. It is also not necessary to decide whether the decision in
that case was correct for even if it was not, the facts are similarly
distinguishable from those of the present case.
[8] The basic ingredients of any enrichment action include the
enrichment of one party (the defendant) and a corresponding

impoverishment of another (the plaintiff). In the absence of an
impoverishment there can be no right of action. In the original
particulars of claim in the present case it was the impoverishment
of Swazi Timber that gave rise to and formed the basis of the right
sought to be enforced; in the amended particulars of claim it was
the impoverishment of the respondent itself. But once it is
accepted that Swazi Timber was not the impoverished party it
follows that the right of action relied upon in the original particulars
of claim was not only non-existent, it was, in any event, an entirely
different ‘right’ from the right sought to be enforced in the amended
claim.
[9] It is true, as emphasized by counsel for the respondent, that
the enriched party, ie the appellant, remained the same. But the
mere fact that there is some overlapping of factual allegations
contained in the pre- and post amendment particulars of claim is
not enough (cf Evins v Shield Insurance Co Ltd, supra, at 838H-
839D). The right of action disclosed in the amended particulars of
claim must at least be recognisable as the same or substantially
the same as the right disclosed in the original claim. In the present
case the right disclosed in the amended particulars of claim is
recognisable as neither.

[10] In the result:
(a)
The appeal succeeds with costs, including the costs of
two counsel;
(b)
The order of the court a quo is set aside and the
following is substituted ─
‘The defendant’s special plea of prescription is upheld
and the plaintiff’s claim is dismissed with costs.’
D G SCOTT
JUDGE OF APPEAL
CONCUR:
MTHIYANE
JA
NUGENT
JA
LEWIS
JA
PONNAN
AJA