Basfour 2482 (Pty) Ltd v Atlantic Meat Market (Pty) Ltd and Another ((T) I 1833/2004) ((T) I 1833/2004) [2010] NAHC 83 (01 September 2010);

Group

Full judgment

CASE NO

11

 

CASE NO. (T) I 1833/2004

 

IN THE HIGH COURT OF NAMIBIA

 

In the matter between

 

BASFOUR 2482 (PTY) LIMITED

PLAINTIFF

 

and

 

ATLANTIC MEAT MARKET (PTY) LIMITED

FIRST DEFENDANT

 

ADOLF HERMAN BADENHORST

SECOND DEFENDANT

 

CORAM: SILUNGWE, AJ

 

Heard on: 27th January 2009

Delivered on:

 

 

JUDGMENT

 

 

SILUNGWE, A.J: [1] This action is predicated upon a contract involving purchases of meat by the defendants for which the plaintiff claims a total sum of N$569,762.30 and interest thereon at the rate of 26% per annum.

 

[2] Mr De La Harpi appears for the Plaintiff, as Mr Geier does for the defendants. The claim against the second defendant has been withdrawn and wasted costs tendered by the plaintiff, resulting in the
Court’s order to that effect. Hence, the first defendant will by and large hereafter be referred to as the defendant.

 

[3] Mr Geier has raised a point in limine which turns on the defendant’s special plea. The essence of the said plea is whether, by the plaintiff’s introduction of the amended particulars of claim delivered to the defendant on August 31, 2007, a new cause of action was, or new causes of action were, ushered in outside the applicable prescriptive period of three years, in terms of section 11(d) of the Prescription Act, Act 68 of 1969, which applies to Namibia.

 

[4] It is submitted by Mr Geier that, on the basis of the plaintiff’s amended particulars of claim, individual claims for N$287,207.65 and N$282,554.65 became due within fourteen days after April 16 and 23, 2004, namely, on or before April 30 and May 7, 2004, respectively. It is not in dispute that, although the plaintiff’s latest notice of intention to amend the particulars of claim was filed on April 20, 2007, the amended particulars of claim were not delivered until August 31, 2007. Mr Geier points out that the latest amended particulars of claim were irregular in that they were delivered outside the applicable time limit in contravention of Rule 28(5) of the Rules of the Court. Hence, he continues, the defendant could have attacked the said particulars of claim on the basis that they constituted an irregular step or proceeding, in terms of Rule 30 of the Rules, but that it failed to do so. Instead, it requested further particulars (to the amended particulars of claim) on September 18, 2007, and subsequently pleaded by filing, on July 9, 2008, a “Special Plea” as well as a “Plea on the merits”. Mr Geier properly concedes that the request for further particulars, not to mention the defendant’s subsequent filing of the pleas, constituted taking further steps in the cause with the result that the irregularity (occasioned by the plaintiff) was condoned by the defendant (on September 18, 2007, at the earliest).

 

[5] Since Mr Geier concedes that the irregularly effected amendment of the plaintiff’s particulars of claim in question was condoned by the defendant, the argument as to when an amendment is effected simply serves as a red herring for the reason that it is irrelevant to the cardinal issue upon which the Court is required to pronounce itself. My, understanding of Mr Geier’s submission is that this aspect is ultimately acknowledged by him. The issue is whether the amended particulars of claim are prescribed. The answer to that question will depend upon whether or not the said particulars contain a new cause of action (according to Mr Geier) or the same or substantially the same right of action (according to Mr De la Harpi).

 

[6] The Prescription Act previously referred to makes provision for the extinction of a debt by prescription. Section 15(1), which provides for service on the debtor of any process, reads:

 

 

It is the debt that gives rise, or relates, to the right of action which is vested in the creditor. The South African Supreme Court of Appeal put it thus in the case of Firstrand Bank Ltd v Nedbank (Swaziland) Ltd 2004 (6) SA 317 at 320J-321A:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Evin’s case, supra, shows at 825F-G and 842E-F (and for reasons given therein) that the expression “right of action” is preferable to that of “cause of action”. See also Wavecrest Sea Enterprises (Pty) Ltd v Elliot 1995 (4) SA 596 at 601F-G. I agree.

 

[7] With regard to the amendment of particulars of claim in relation to prescription, it was said in Associated Paint & Chemical Industries (Pty) Ltd t/a Albestra Paint and Lacquers v Smit 2000 (2) SA 789 (SCA) at 794C:

 

 

 

[8] The fundamental question that arises in the present case is whether the right of action relied upon in the amended particulars of claim of August 31, 2007, is recognisable as the same or substantially the same as that relied upon in the original particulars of claim?

 

[9] Mr De La Harpi submits that the nature of the plaintiff’s formulation of claims – as they have evolved – has consistently remained the same; that such formulation remains rooted in contract relating to purchases of two consignments of meat resulting in two unpaid invoices involving N$287,207.65 and N$285,500.00, respectively; and that the right of action remains the same or substantially the same, notwithstanding new allegations and matters of evidence which fall into the category of facta probanda. In consequence, he continues, the amended particulars of claim interrupted prescription and, therefore, the special plea should be dismissed and that costs should follow the event.

 

[10] Conversely, Mr Geier argues, in essence, that the amended particulars of claim at issue introduce a new cause of action or different or substantially different right of action from that previously relied upon in the initial particulars of claim. The basis of his argument is that, in the original particulars of claim, a credit application was made on behalf of the (first) defendant on the strength of which consignments of meat were delivered and invoices were issued by the plaintiff but that no payment there for was made by the (first) defendant. In the latest amended particulars of claim, however, two credit applications were made by two different entities and accepted by the plaintiff thereby constituting a joint and several application for credit with Marketlink International (para 5 of the amended particulars of claim shows that “the Defendant was a Subsidiary or Associate Company of Marketlink International (SA) (Pty) Ltd). In aid of his argument, reference is made to paras 4 and 6 of the original particulars of claim and to paras 3, 4, 6 and 8 of the amended particulars of claim in question.

 

[11] For ease of reference, the relevant paras of the original and the amended particulars of claim aforesaid (respectively and essentially) read as follows (bearing in mind that Mr Herman Badenhorst features in para 3 not only as “Second Defendant” but also as Director of the “First Defendant”):

 

 

 

 

 

 

 

 

 

 

----

 

8. The Plaintiff accepted the First Defendant’s credit application, Annexure ‘C’ on the basis that it constituted a joint and several application for credit with Marketlink International (SA) (Pty) Ltd.”

 

 

I pause here to add para 5 whose relevance is self-evident. The para is couched in these terms:

 

 

 

 

 

It is apparent that the reference to “Defendant” in paras 5 and 6 above relate to the “First Defendant”, as opposed to the erstwhile “Second Defendant”.

 

[12] It is common cause that an examination of the aforegoing sets of particulars of claim discloses some differences between them. What has to be decided, therefore, is whether the differences are so substantial as to translate into a different or substantially different right of action. In the Wavecrest Sea Enterprises case, supra, Melunsky J remarked at 600H-610A-D:

 

It is quite apparent that when a court has to decide whether a summons interrupts prescription, it is necessary to compare the allegations and the

relief claimed therein with the averments and the relief claimed in an

amendment. The fact that there are differences between the facta probanda necessary to prove the original cause of action and those necessary to prove the amended claim did not invariably lead to the conclusion that the original summons does not interrupt prescription. The question is whether the right that is sought to be enforced and the relief claimed in the amended claim is the same or substantially the same as the right of action and the relief in the original claim (see Alfred McAlphine & Son (Pty) Ltd v Transvaal Provincial Administration 1977 (4) SA 310 (T) at 342-3). In Imprefed (Pty) Ltd v National Transport Commission 1990 (3) SA 324 (T), Botha J said the following at 329C-D:

 

It can depend on the circumstances of a particular case whether a cause of action has been sufficiently delineated in the original summons so as to be a bar to any possible plea of prescription when an amendment is sought ---

 

Where a party has consistently relied on a particular claim but has set it out imperfectly, an attempt to clarify it properly will not be regarded as the introduction of a new cause of action.’

 

It may also be observed that prescription will be interrupted if proceedings are instituted for declarator, even if a subsequent action would be required to fix the quantum of the claim.

 

---

 

The aforegoing cases merely illustrate the principal that the original summons may interrupt prescription even if new or different facta probanda are introduced by an amendment or in a subsequent action. As Botha J mentioned in the Imprefed case, each case must be decided on the particular circumstances.”

 

 

[13] In casu, I am of the view that the essence or nature of the claim between the two sets of the particulars of claim remains the same, namely, the debt which the plaintiff is endeavouring to recover from the defendant. Indeed, the parties too remain the same. It is clear from para 8 of the amended particulars of claim that the plaintiff “accepted” the defendant’s credit application. Both paras 5 and 8 of the amended

particulars are seemingly indicative of some of the evidence that the plaintiff might lead at the trial on the merits. In my judgment, the differences introduced by the amended particulars of claim constitute facta probanda. However, the fact that differences exist between the facta probanda necessary to prove the original claim and those necessary to prove the amended claim is not enough to inevitably lead to the conclusion that the amended claim cannot interrupt prescription, as this case illustrates. The decisive question is whether the right of action sought to be enforced in the amended claim is the same or substantially the same as the right of action in the original claim? On the facts of this case, my answer is in the affirmative. Hence, the right of action in the amended claim is recognisable as the same or substantially the same as the right of action in the original claim.

 

[14] In conclusion, I am satisfied that the right of action disclosed in the amended particulars of claim is recognisable as the same or substantially the same as the right of action disclosed in the initial particulars of claim. In the circumstances, the said amended particulars of the claim interrupted prescription. The point in limine thus fails.

 

 

 

 

[15] Consequently, I make the following order:

1. The special plea is disallowed.

2. The circumstances of this case warrant that costs be

costs in the cause and I so direct.

 

 

 

 

 

SILUNGWE A. J.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ON BEHALF OF THE PLAINTIFF

Mr De La Harpi

 

Instructed by:

Francois Erasmus & Partners

 

 

 

 

 

 

 

 

ON BEHALF OF THE DEFENDANT

Mr Geier

 

Instructed by:

Behrens & Pfeiffer

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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