THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Case No: 249/2010

In the matter between:

AERONEXUS (PTY) LIMITED                                            Appellant

and

FIRSTRAND BANK LIMITED T/A WESBANK                Respondent

Neutral citation:
Aeronexus v Firstrand Bank Limited (249/2010) [2011] ZASCA
21 (17 MARCH 2011)

Coram:
LEWIS, MAYA and SERITI JJA

Heard:
28 FEBRUARY 2011

Delivered:
17 MARCH 2011

Summary:
Prescription – Extinctive prescription – meaning of ‘debt’ in s
15(1) of the Prescription Act 68 of 1969 – whether debt
recognisable from original summons.

ORDER

On appeal from: South Gauteng High Court, Johannesburg (Beasley AJ
sitting as court of first instance):

1 The appeal succeeds with costs.
2 The order of the court below is set aside and replaced with the
following:
‘The defendant’s special plea of prescription is dismissed with costs and
judgment is granted in favour of the plaintiff for –
(a) payment in the sum of R1 959 240.30 together with interest
thereon at the rate of 15.5 per cent per annum, as from 20 August
2009 to date of payment; and
(b) the costs of the action.’

JUDGMENT

MAYA JA:   (Lewis and Seriti JJA concurring)

[1]  This appeal concerns the question whether or not the claim of the
appellant, Aeronexus (Pty) Ltd (Aeronexus), against the respondent (the
bank) became prescribed under the Prescription Act 68 of 1969.

[2] Aeronexus carries on the business of maintenance and repair of
aircraft. During July 2001, it concluded a written agreement (the
agreement) with a customer, Million Air Charter Ltd (Million Air), to
conduct work on certain aircraft owned by the bank. The agreement
commenced on 1 June 2001 and would continue for a period of 12
months whereafter it would endure indefinitely until terminated by either
party upon written notice.

[3] As at 29 February 2004, Million Air (which was subsequently placed
in liquidation) owed Aeronexus a sum of R1 916 395.56 for services
rendered under the agreement, which it was unable to pay. Aeronexus
held liens over the aircraft under the agreement.1 In the exercise of its
liens, Aeronexus retained control and possession of the aircraft’s
logbooks.

1 Clause 10.1 of the agreement provided:
‘Aeronexus shall have a lien over the Aircraft and any other property belonging to Million Air which
comes into Aeronexus’s possession or control for all amounts and liabilities whatsoever due or
becoming due to Aeronexus by Million Air, irrespective of whether or not such amount or liability is
incurred as a consequence of Aeronexus so being in possession of such aircraft or property at that
time.’

[4] To secure the release of the aircraft the bank, on 12 March 2004,
issued to Aeronexus a bank guarantee in the following terms:
‘At the instance of WesBank, a division of FirstRand Bank Limited of Bank City,
Block E, 9 Kerk Street, Johannesburg, we advise that we hold at your disposal an
amount of R1 959 240,30 … which amount or any lesser amount will be paid to you
on the terms and conditions stipulated herebelow:-
On the successful conclusion of an action to be instituted by you against WesBank ...
in respect of your liens relating to a certain Boeing 727-100 aircraft with registration
number ZS-IJF and serial number 18444, a certain McDonnell Douglas DC-932
aircraft with registration number ZS-OLN and a serial number 47218 and a certain
Pratt & Whitney JT8D-15 engine with engine number 700189.
This guarantee is irrevocable and neither negotiable nor transferable, and must be
returned to us against payment.’
Aeronexus consequently released the logbooks to the bank.

[5] On 30 April 2004, Aeronexus issued a simple summons (the original
summons) against the bank in which it claimed from the latter
‘Payment in the sum/balance of R1 959 240.30 in respect of services rendered and
goods sold and delivered during the period of 31 March 2003 to 29 February 2004,
which amount is currently due and payable and which amount the Defendant,
notwithstanding demand, failed and/or refused to pay.’

[6] The bank promptly delivered its notice of intention to defend the
action on 12 May 2004. Almost three years later, on 18 January 2007,

Aeronexus filed a declaration in which it fully set out the facts underlying
its claim and specifically pleaded its reliance on the guarantee therefor,
albeit for a somewhat lesser amount. This elicited an exception from the
bank in terms of Uniform Rule 23(1) averring that Aeronexus was not
entitled to sue it on the basis of the alleged debtor and creditor lien. But
nothing turns on this objection as it was subsequently abandoned.
However, on 26 March 2007, the bank noted yet another exception which
was formulated on a different basis. It now averred that the declaration,
which relied on a ‘bank guarantee issued … pursuant to a lien exercised
... against a third party’, was vague and embarrassing and that its
allegations differed materially from those set out in the summons which
relied on a debt ‘in respect of services rendered and goods sold and
delivered’.

[7] In response, Aeronexus gave notice of its intention to amend its
summons to claim
‘Payment in an amount of R1 959 240,30 which is overdue and payable in respect of
services rendered and goods sold and delivered by [Aeronexus] to and/or on behalf of
… [Million Air] during the period 31 March – 29 February 2004, which resulted in
[Aeronexus] acquiring and exercising a lien over certain Boeing 727-100 aircraft,
Registration No. ZS-IJF (serial number 18444) and aircraft McDonnell Douglas DC-
932, Registration No. ZS-OLN (serial number 47218) and certain Pratt & Whitney

JT8D-15 engine (engine number 700189). The [bank’s] liability in respect of such
amount arises by virtue of [its] written undertaking . . . ’.

[8] Although the bank delivered a notice of objection to the proposed
amendment on the ground that it sought to introduce a new cause of
action, namely a claim based on a lien and written undertaking which had
prescribed on 11 March 2007, the objection was not pursued. Instead, a
plea was filed. This pleading incorporated a special plea in which the
bank raised the defence of prescription based on an allegation that the
debt claimed in the amended summons was not the same or substantially
the same debt claimed in the original summons such that the original
summons failed to interrupt prescription in respect of the amended claim.

[9] By agreement between the parties, no evidence was led at the trial
proceedings and the matter was decided on the basis of the special plea.
The South Gauteng High Court (per Beasley AJ) found that the bank’s
liability arose not from the debtor and creditor relationship alleged in the
original summons but wholly from the guarantee, which was an
undertaking to pay the relevant amount upon proof of the legality of
Aeronexus’ liens. The court found further that the ‘prescriptive period of
three years ... applie[s] to the written guarantee and not to the contract of
goods sold and delivered’ and that the amended claim which was not

recognisable in the original summons, was filed beyond the period of
prescription. The court then concluded that the latter pleading did not
interrupt prescription. The special plea was accordingly upheld but the
court subsequently granted Aeronexus leave to appeal to this court
against its decision.

[10] The crisp issue on appeal, as foreshadowed above, is whether the
original summons interrupted the running of prescription in terms of s 15
of the Act. Central to this question is whether the debt claimed is
recognisable from the original summons.

[11] It was contended on the bank’s behalf, in support of the judgment of
the court below, that the original summons did not interrupt prescription.
This was so, the argument went, because the debt claimed in the amended
summons based on the guarantee (which was conditional upon Aeronexus
instituting an action in respect of its alleged liens) is not the same or
substantially the same as the debt claimed in the original summons based
on services rendered and goods sold and delivered to which no reference
was made in the guarantee. The debt flowing from services rendered and
goods sold and delivered, it was argued, did not arise against the bank as
there was never a debtor and creditor relationship between the parties
arising therefrom. Thus, Aeronexus was precluded by law from

instituting an action against the bank based on the debtor and creditor lien
envisaged in the agreement and any lien it had against the bank would be
limited to a claim for necessary and useful expenses and only to the
extent that the bank was enriched thereby.

[12] In terms of sections 10(1),2 11(d),3 and 12(1)4 of the Act, a debt shall
be extinguished by prescription after the lapse of a term of three years
after the date from which the debt becomes due.  Section 15(1) provides:
‘The running of prescription shall, subject to the provisions of ss (2), be interrupted by
the service on the debtor of any process whereby the creditor claims payment of the
debt.’

[13] The term ‘debt’ is not defined in the Act. In interpreting it, courts
have given it a broad, flexible meaning, capable of different, context-
based connotations.5 This meaning refers more generally to the claim and
is wider than the technical term ‘cause of action’ (the phrase ordinarily
used to describe the set of material facts relied upon to establish the

2 Section 10(1) of the Act provides: ‘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.’
3 According to s 11(d) of the Act, ‘save where an Act of Parliament provides otherwise, [the period of
prescription of debts shall] be three years’.   . . .’
4 Section 12(1) provides: ‘Subject to the provisions of subsections (2), (3) and (4), prescription shall
commence to run as soon as the debt is due.’
5 Cape Town Municipality and another v Allianz Insurance Co Ltd 1990 (1) SA 311 (C) at 330E-H;
CGU Insurance Ltd v Rumdel Construction (Pty) Ltd 2004 (2) SA 622 (SCA) para 6.

debt).6 It is therefore critical to guard against confusing a debt with the
cause of action which begets it.7

[14] The question whether a summons interrupts prescription requires a
comparison of the allegations and relief claimed in the summons with the
allegations and relief claimed in the amendment to assess if the debt is the
same or substantially the same.8  In deciding whether prescription was
interrupted by legal process – a summons falls within the definition of
‘process’ set out in s 15(6) of the Act – the right or debt sought to be
enforced by means of the amendment must be the same or substantially
the same as that alleged in the original process: the substance rather than
the form of the original process must be considered.9

[15] There is no question that the original summons is defective. It
should, preferably, have made it clear that the bank was being sued on the
basis of the undertaking it had given under the guarantee. The amendment
which introduced the guarantee therefore presented a different basis for
the claim. But the attempt to clarify the claim properly (which is what the

6 Evins v Shield Insurance Co Ltd 1980 (2) SA at 814 (A) at 825F-G; Standard Bank of South Africa
Ltd v Oneanate Investments (Pty) Ltd (In Liquidation) 1998 (1) SA 811 (SCA) at 826J; Drennan Maud
& Partners v Pennington Town Board 1998 (3) SA 200 (SCA) at 212F-G.
7 Sentrachem Ltd v Prinsloo 1997 (2) SA 1 (A) at 15A-E; Associated Paint & Chemical Industries
(Pty) Ltd t/a Albestra Paint and Lacquers v Smit 2000 (2) SA 789 (SCA) at 794.
8 Wavecrest Sea Enterprises (Pty) Ltd v Elliot 1995 (4) SA 596 (SE) at 600H-J; CGU Insurance Ltd v
Rumdel Construction para 7; Rustenberg Platinum Mines v Industrial Maintenance Painting Services
[2009] 1 All SA 275 (SCA) para 19.
9 Neon and Cold Cathode Illuminations (Pty) Ltd v Ephron 1978 (1) SA 463 (A) at 471A-B; Associated
Paint (supra) para 15.

amendment sought to do) is not, in my opinion, tantamount to the
introduction of a new debt in the circumstances of this case.10 It is well to
bear in mind that ‘it is inaction, not legal ineptitude, which the
Prescription Act is designed to penalise’11 and that even an excipiable
summons which does not set out a cause of action can nevertheless serve
to interrupt prescription as long as it is not so defective that it amounts to
a nullity.12

[16] What was sought to be enforced in the original summons was
payment of a debt in the sum of R1 959 240.30 accruing originally from
‘services rendered and goods sold and delivered’ during 31 March 2003
to 29 February 2004. The same relief is sought in the amendment. Apart
from the omission of the guarantee – which served as security for
payment in respect of the selfsame ‘services rendered and goods sold and
delivered’ averred in the original summons – I can discern no
inconsistency between the allegations made in the unamended claim and
those set out in the amended claim. A comparison of the facta probanda
and relief claimed in both pleadings rather shows that whilst portion of
the ‘allegations or “cause of action” upon which the relief claimed is

10 Trans-African Insurance Co Ltd v Maluleka 1956 (2) SA 273 (A) at 279B-C; Churchill v Standard
General Insurance Co Ltd 1977 (1) SA 506 (A) at 517C; Imprefed (Pty) Ltd v National Transport
Commission 1990 (3) SA 324 (T) at 329C-D.
11 Mazibuko v Singer 1979 (3) SA 258 (W) at 266A. See also the minority judgment of Trollip JA in
Evins v Shield Insurance Co Ltd 1980 (2) SA 814 (A) at 825F-H.
12 Standard Bank of SA v Oneanate Investment (Pty) Ltd (In Liquidation) 1998 (1) SA 811 (SCA) at
825H-I.

based in the amendment differs from the allegations or “cause of action”
set out’ in the original summons, ‘the relief claimed, ie the “debt”’ is
substantially the same in the broad sense of the meaning of the word.13
Although flawed, the original summons nonetheless gave a general
indication of the claim sought to be enforced sufficient for the bank to
understand the nature of the claim made against it. The special plea
should therefore have been dismissed.

[17] Finally, it was argued on the bank’s behalf that in the event that the
appeal succeeded, Aeronexus would not be entitled to interest from 12
March 2004 as claimed, but from the date on which the judgment of the
court below was delivered. This argument was based on the guarantee’s
provision that Aeronexus would be entitled to payment upon the
successful conclusion of the action it would institute against the bank in
respect of its liens.  This, it was contended, showed that the parties
contemplated that Aeronexus would first have to prove its claim by way
of litigation. I agree.  The judgment of the court below was delivered on
20 August 2009 and that is the date from which interest should run.

[18] In the result the following order is made:

13 CGU Insurance Limited v Rumdel Construction (Pty) Ltd 2004 (2) SA 622 (SCA) para 8. See also
Rustenberg Platinum Mines v Industrial Maintenance Painting Services [2009] 1 All SA 275 (SCA)
para 19.

1 The appeal succeeds with costs.
2 The order of the court below is set aside and replaced with the
following:
‘The defendant’s special plea of prescription is dismissed with costs and
judgment is granted in favour of the plaintiff for –
(a) payment in the sum of R1 959 240.30 together with interest
thereon at the rate of 15.5 per cent per annum, as from 20 August
2009 to date of payment; and
(b) the costs of the action.’

______________________
MML MAYA
JUDGE OF APPEAL

APPEARANCES:

For appellant:
JJ Brett SC

Instructed by:
Schindlers Attorneys, Johannesburg

Webbers Attorneys, Bloemfontein

For respondent:
CW Jordaan SC with F Becker

Instructed by:
Smit, Jones and Pratt, Johannesburg

Symington & De Kok, Bloemfontein

THE SUPREME COURT OF APPEAL
REPUBLIC OF SOUTH AFRICA

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL

MEDIA SUMMARY – JUDGMENT DELIVERED IN THE SUPREME COURT OF
APPEAL

From:  The Registrar, Supreme Court of Appeal
Date:  17 March 2011
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

The Supreme of Court of Appeal today upheld an appeal against a judgment of the South
Gauteng High Court which upheld a special plea of prescription and dismissed the claim of
Aeronexus (Pty) Ltd against FirstRand Bank. The claim was based on damages arising from
monies due for services rendered for goods sold and delivered to Million Air (Pty) Ltd in
respect of aircraft owned by the bank.

The action was initiated by way of a simple summons which did not mention the fact that the
bank’s liability arose from a written guarantee it had issued in favour of Aeronexus
undertaking to pay the amount claimed if Aeronexus was able to prove the debtor and
creditor liens it alleged it held against Million Air in respect of the aircraft. The bank gave
the guarantee in order to secure the release of the aircraft’s logbooks which Aeronexus held
in the exercise of its liens.

Aeronexus then sought to amend its summons to include that the bank’s liability was based
on the guarantee but the bank objected on the ground that the amendment was out of time as
the prescriptive period of three years had elapsed. The bank contended that the original
summons did not interrupt prescription as the debt claimed in it was not the same or
substantially the same as that claimed in the amendment.

The SCA disagreed with this contention and held that although the allegations or cause of
action upon which the relief claimed is based in the amendment differs from the allegations
or cause of action set out in the original summons, the relief claimed, i.e the ‘debt’, remained
the same in the broad meaning of the word and that the original summons therefore in
interrupted prescription. The Court held that the special plea should have been dismissed.

---ends---