Authored by Ina Iyer and Alanna Bollweg.
Two High Court judgments, one in November 2025 and another in March 2026, reached different conclusions about whether a new cause of action introduced by amendment constituted a new debt which had prescribed.
In Devland Cash and Carry (Pty) Ltd v G4S Cash Solutions SA Pty Limited, the claimant sued G4S in delict in 2020 following a 2019 cash-in-transit heist. Almost four years later, the claimant amended to reframe the claim as a contractual claim. The defendant raised a special plea of prescription, arguing that the ‘new cause of action’ had prescribed.
The court dismissed the prescription argument and said that while the causes of action (one delictual and the other contractual) are distinct, they are both founded on substantially the same debt.
In Bobe v van der Walt, the claimant sued her doctor in contract in 2023 following an allegedly negligent 2020 surgery. In 2024, the claimant abandoned the contractual claim and introduced a delictual claim by amendment. The doctor opposed the amendment, arguing that it introduced a ‘new cause of action’ which had prescribed.
The court in Bobe did not allow the amendment, stating that the claims, arising under contract and delict, constitute different debts, even though they may arise from the same factual matrix and both seek compensation. One debt arose from a voluntarily assumed obligation in contract and the other was imposed by law. The ‘delictual debt’ was found to have prescribed by the time the claimant tried to amend her pleading.
It is submitted that Devland was decided correctly and that Bobe was likely not for the reasons which follow.
Section 15(1) of the Prescription Act, 1969 states that prescription is interrupted by service on the debtor of any process whereby the creditor claims payment of the ‘debt’.
Devland relies on the reasoning of the Supreme Court of Appeal (SCA) in Rustenburg Platinum Mines v Industrial Maintenance Painting Services, which cited various cases finding that a ‘debt’ denotes a ‘claim’, not a ‘cause of action’. It explained that “… if an amendment introduces a new ‘claim’ or ‘debt’ which is based on a new cause of action, such amendment would be susceptible to a special plea of prescription if the prescriptive period has run. But… it does not follow that a new cause of action… introduced by amendment will necessarily give rise to a new ‘claim’ or ‘debt’”.
The SCA in Rustenburg Platinum Mines referred to the test for whether a summons interrupts prescription as stated in CGU Insurance Ltd v Rumdel Construction (Pty) Ltd, which is to “compare the allegations and relief claimed in the summons with the allegations and the relief claimed in the amendment to see if the debt is substantially the same”.
The SCA acknowledged that the allegations in the summons and amendment differed, given that the original cause of action was based on unjustified enrichment whereas the amendment sought specific performance of a contractual obligation. It decided that “the relief claimed, ie the ‘debt’ is… the same”, appearing to place greater weight on the similarity of the relief requested.
A person harmed by negligent medical treatment has a choice whether to sue in contract or delict (delict is usually chosen), and the debt is the same Van Wyk v Lewis - 1924 AD 438
It is recommended that all potential bases of liability must be identified and pleaded timeously to avoid possible prescription arguments. But if the same debt is claimed throughout, introducing a new cause of action is not problematic.