THE SUPREME COURT OF APPEAL OF SOUTH AFRICA

JUDGMENT

Not reportable
Case No: 144/2015

In the matter between:

FOXLAKE INVESTMENTS (PTY) LTD t/a

FOXWAY DEVELOPMENTS (PTY) LTD

APPELLANT

and

ULTIMATE RAFT FOUNDATION DESIGN
SOLUTIONS CC t/a ULTIMATE RAFT
DESIGN

FIRST RESPONDENT

JT PIDGEON

SECOND RESPONDENT

Neutral Citation: Foxlake Investments v Ultimate Raft Foundation Design
(144/15) [2016] ZASCA 54 (01 April 2016)

Coram:
Maya AP, Seriti, Pillay and Willis JJA and Victor AJA

Heard:
17 March 2016

Delivered: 01 April 2016

Summary: Civil Procedure and Practice – an order amending the incorrect
description of a defendant in a summons does not amount to a substitution of
the defendant where the summons was served at the offices and on the director
shared by the incorrectly cited party and the true defendant who was clearly
recognisable from the original summons – original summons complied with the
requirements of s 15(1) of the Prescription Act 68 of 1969 and service thereof
interrupted running of prescription.

ORDER

On appeal from: Gauteng Division of the High Court, Pretoria (Strydom AJ
sitting as court of first instance).

The appeal is dismissed with costs.

________________________________________________________________

JUDGMENT
________________________________________________________________

Seriti JA (Maya AP, Pillay and Willis JJA and Victor AJA concurring)
[1] The respondents (plaintiffs in the court a quo) instituted an action against
the appellant (defendant in the court a quo) in the Gauteng Division, Pretoria,
claiming, inter alia, a certain amount of money based on an alleged breach of
contract alternatively unlawful competition and unauthorised use of the
respondents‟ confidential proprietary information. After a number of
procedural skirmishes challenging the respondents’ pleadings set out
hereunder, the respondents filed a notice to amend the citation of the appellant
and the appellant opposed the proposed amendment. The application came
before Strydom AJ and he granted the order sought by the respondents. It is to
that order that the appeal to this Court is directed with leave of the court a quo.

[2] The main issues in this appeal are whether (a) the amendment to the
citation of the appellant amounted to a substitution of a defendant or the
correction of a misnomer and (b) the service of the original summons served to
interrupt prescription. The respondents however took issue with the
appealability of the order of the court a quo in light of Zweni v Minister of Law

and Order [1993] 1 All SA 365 A at 365 (A) at 369-370…. Because of the view
I take of the merits of this appeal, I will assume for purposes of this judgment,
without making any decision, that the order is appealable.

[3] The factual background of the appeal is briefly as follows. Foxway
Developments (Pty) Ltd (Foxway) and Foxlake Investments (Pty) Ltd (Foxlake)
share the same registered address, principal place of business, contact details,
receptionist and managing director, namely Mr R Henry. The respondents
instituted the action against the appellant on 13 July 2012. In the particulars of
claim the respondents cited the appellant as follows:
„4. Foxlake Investments (Pty) Ltd t/a Foxway Developments (Pty) Ltd, a company duly
registered and incorporated in terms of the company laws of the Republic of South Africa
under registration number 1970/012838/07 with its principal place of business.  . . .‟
The particulars of claim further alleges that Foxlake Investments (Pty) Ltd t/a
Foxway Developments (Pty) Ltd entered into an agreement with the
respondents in terms of which the appellant appointed the first respondent as a
consulting engineer on the Boitekong project.

[4] The copy of the agreement between the parties was attached to the
particulars of claim. The agreement indicates that the first respondent entered
into an agreement with Foxway. The street address, fax number and name of the
managing director of Foxway are indicated on the agreement.

[5] On 31 August 2012, the appellant raised an exception to the particulars of
claim. The notice of exception the relevant part of which reads as follows:
„2. Ex facie the contents of the agreement, attached to the plaintiff‟s particulars of claim . . .
the first defendant is not a party to the agreement as alleged.
3. Accordingly, no cause of action lies against the first defendant in that:

3.1 the contracting parties are reflected as the first plaintiff and Foxway Developments (Pty)
Ltd;
3.2 Foxlake Investments (Pty) Ltd with registration number 1970/012838/07 is a separate
legal entity that does not trade as Foxway Developments (Pty) Ltd.
3.3 Foxway Developments (Pty) Ltd with registration number 1968/006089/07 is a separate
legal entity and is not a trading Division of Foxlake Investments (Pty) Ltd.‟

[6] Upon receipt of the notice of exception the respondents elected to amend
the citation of the appellant as reflected in paragraph 4 of the particulars of
claim by substituting the word „trading as‟ with the word „alternatively‟ and by
deleting the words „under registration number 1970/012838/07.‟ Once this was
effected paragraph 4 of the particulars of claim would have read as follows:
„The first defendant is Foxlake Investments (Pty) Ltd alternatively Foxway Developments
(Pty) Ltd a company duly registered and incorporated in terms of the company laws of the
Republic of South Africa with its principal place of business. . . .‟

[7] After the amended pages were served on the appellants, they filed another
notice of exception which reads in relevant part as follows:
„7. The plaintiffs alleged in their particulars of claim that the first defendant ie, Foxlake
Investments (Pty) Ltd alternatively Foxway Developments (Pty) Ltd entered into an
agreement with the first plaintiff in terms of which the first defendant has appointed the first
plaintiff as consulting engineer on their Boitekong Project. . . .
8. Ex facie the contents of the agreement attached to the plaintiffs‟ particulars of claim. . .
Foxlake Investments (Pty) Ltd is not a party to the agreement.‟

[8] On 20 August 2013 the respondents filed a notice of amendment  seeking
to amend paragraph 4 of their particulars of claim which, at that stage, cited the
first defendant as Foxlake alternatively Foxway. The amendments sought by the
respondents were directed at the deletion of the words „Foxlake Investments

(Pty) Ltd alternatively‟ from their particulars of claim thereby citing Foxway as
the first defendant. The appellants did not oppose the proposed amendment.

[9] In argument before us the appellant‟s counsel submitted that the
amendment which the respondents sought in the court below was directed at the
deletion of the words „Foxlake Investments (Pty) Ltd alternatively‟ from the
summons and the particulars of claim, that it sought to introduce Foxway – a
separate legal entity – as the first defendant and that the summons were never
served on Foxway. He further submitted that the proposed amendment sought to
introduce Foxway as a party to the action in  circumstances where the alleged
claim against Foxway had, in terms of s 15 of the Prescription Act 68 of 1969
(the Act) prescribed.

[10] On the other hand, the respondents‟ counsel in this court submitted that
Foxway appeared on the initial summons and particulars of claim, and that the
amendment only sought the deletion of Foxlake so as to leave Foxway as the
sole first defendant. He further argued that the proposed amendment did not
seek to introduce a new legal entity and that the amendment was in the nature of
correcting a misnomer  rather than a substitution.

[11] In Blaauwberg Meat Wholesalers CC v Anglo Dutch Meats (Exports) Ltd
[2003] ZASCA 144; 2004 (3) SA 160 (SCA) para 12. Heher JA said:
„Amendments are regulated by a wide and generous discretion which leans towards the
proper ventilation of disputes and are granted according to a body of rules developed in that
context.‟
In Affordable Medicines Trust & others v Minister of Health & another [2005]
ZACC 3; 2006 (3) SA 247 (CC) para 9, Ngcobo J said:
„The principles governing the granting or a refusal of an amendment have been set out in a
number of cases. There is a useful collection of these cases and the governing principles in

Commercial Union Assurance Co Ltd v Waymark NO [1995 (2) SA 73 (Tk) at 76D-I]. The
practical rule that emerges from these cases is that amendments will always be allowed unless
the amendment is mala fide (made in bad faith) or unless the amendment will cause an
injustice to the other side which cannot be cured by an appropriate order for cost, or “unless
the parties cannot be put back for the purposes of justice in the same position as they were
when the pleading which it is sought to amend was filed.”‟ (Footnotes omitted.)

[12] The appellants have not alleged that the amendment sought, is made in
bad faith although they allege that they will suffer prejudice if the amendment is
granted because there was no compliance with the provisions of s 15(1) of the
Act as payment of the debt was not claimed from the debtor Foxway. Section
15(1) of the Act provides that for the interruption of prescription there must be a
process, the process must be served on the debtor and the creditor must claim
payment of the debt.

[13] In Blaauwberg para 18, while dealing with s 15(1) of the Act, Heher JA
said:
„While the entitlement of the debtor to know it is the object of the process is clear, in its case
the criterion fixed in s 15(1) is not the citation in the process but that there should be service
on the true debtor (not necessarily the named defendant) of process in which the creditor
claims payment of the debt. The section does not say  „. . . claims payment of the debt from
the debtor’. Presumably this is so because the true debtor will invariably recognise its own
connection with a claim if details of the creditor and its claim are furnished to it,
notwithstanding any error in its own citation.‟

[14] As stated earlier, Foxway and Foxlake share the same registered address,
receptionist and managing director. The copy of the agreement on which the
claim is based was attached to the original summons. In my view when the
summons was served on the registered address of both Foxway and Foxlake,
Foxway recognised its connection with the claim notwithstanding the error in its

description. The amendment sought by the respondents in the court a quo did
not seek to introduce a new legal entity as the first defendant. It merely sought
to correct the incorrect description of the defendant and encourage the proper
ventilation of the real disputes between the creditor (the respondents) and the
debtor (appellant). The question of prejudice to the appellants does not arise.
The summons was served on the true debtor in which summons the creditor was
claiming payment of the debt from the debtor. It is clear that the provisions of s
15(1) mentioned above were complied with.

[15] In the result:
The appeal is dismissed with costs.

____________
W L Seriti
Judge of Appeal

APPEARANCES:

For Appellant:

HJ Smith

Instructed by:

Cliffe Dekker Hofmeyr Inc., Johannesburg

Webbers Attorneys, Bloemfontein

For Respondent:

Y Alli

Instructed by:

DM Kisch Inc., Pretoria

Phatshoane Henney Inc., Bloemfontein