A recent judgment of the Mahikeng High Court serves as a stark reminder that a change in the legal foundation of a claim — from contract to delict — is not merely a technical adjustment. It constitutes the introduction of a new cause of action and, consequently, a new debt for the purposes of the Prescription Act 68 of 1969. Where the prescriptive period applicable to that new debt has already lapsed, the amendment will not be permitted.
Brief summary
The applicant underwent a breast reduction procedure performed by the respondent, a medical practitioner, on 10 December 2020. On 24 April 2023, the applicant instituted an action against the respondent by way of a combined summons, claiming damages for alleged medical negligence arising from the procedure.
The original particulars of claim were founded on a contractual relationship between the parties, alleging a breach of an agreement in terms of which the respondent undertook to perform the surgery with reasonable professional skill.
The respondent raised an exception to the particulars of claim on the basis that they failed to disclose a cause of action in either contract or delict. The court upheld the exception and ordered the applicant to amend her particulars of claim within 15 days.
In response, the applicant delivered a notice of intention to amend in terms of Uniform Rule 28(1), seeking to delete all references to the contractual relationship and instead plead the claim solely on the basis of delict.
The issues before the court
The central issue was whether the proposed amendment sought to introduce a new cause of action — a delictual claim — that had already prescribed, or whether it merely clarified the same underlying debt originally claimed.
The applicant contended that prescription had been interrupted by the service of the combined summons.
The respondent, on the other hand, argued that the delictual claim was a new and separate debt, which had become due on 15 December 2020 and had prescribed on 15 December 2023 — before the notice of intention to amend was filed.
The court’s finding and reasons
The court dismissed the application for leave to amend.
In reaching its decision, the court drew upon well-established authority. It confirmed that contract and delict are separate and distinct legal bases for liability. A contractual duty arises from the agreement between the parties, whereas a delictual duty arises from the community’s legal convictions and exists independently of any agreement.
The court applied the test formulated in Sentrachem Ltd v Prinsloo, which requires a comparison between the original claim and the proposed amended claim to determine whether the same right of action, or substantially the same right, is being pursued.
It found that the debt in contract — the obligation to pay damages for breach of a voluntarily assumed obligation — is fundamentally different from the debt in delict — the obligation to pay damages for breach of a duty imposed by law.
These are different legal obligations, even though they may arise from the same factual matrix and seek the same monetary outcome.
The court further held that, in terms of the Prescription Act, prescription is interrupted by service of process whereby the creditor claims payment of the debt in question.
The combined summons served in April 2023 claimed payment of a contractual debt, not a delictual debt, and accordingly could not interrupt the prescription of a debt that was never claimed. As the delictual claim became due on 15 December 2020 and prescribed on 15 December 2023, the amendment would introduce a prescribed claim.
Lessons from the judgment
This judgment offers several important lessons.
First, the correct identification of a cause of action at the outset of litigation is of paramount importance.
Practitioners must exercise care in determining whether a claim sounds in contract, delict, or both, and plead accordingly from the inception. Where the facts support concurrent causes of action, both should be pleaded in the alternative at the earliest opportunity.
Second, the decision underscores that an amendment to pleadings is not a limitless remedy. Whilst the courts adopt a generous approach to amendments under Uniform Rule 28, this generosity has a clear boundary: an amendment will not be permitted where it would introduce a new cause of action that has already prescribed, as this constitutes prejudice that cannot be compensated by an order for costs.
Finally, the judgment serves as a cautionary reminder that the failure to properly formulate one’s case from the start can have irremediable consequences.
