In the recent judgment of Peter Taylor & Associates v Bell Real Estates and Renasa Insurance Company the Supreme Court of Appeal was requested to decide whether the court of first instance was correct in deciding that the service of a notice of joinder interrupted prescription.
The relevant sections of the Prescription Act provide as follows:
- Section 15(1) – The running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of debt.
- Section 15(6) – For the purposes of this section, ”process” includes a petition, a notice of motion, a rule nisi, a pleading in reconvention, a third party notice referred to in any rule of court, and any document whereby legal proceedings are commenced.
- Section 15(5) deals with the situation that is applicable where a person applies to be joined as a defendant in an action and provides as follows that if any person is joined as a defendant on his own application, the process whereby the creditor claims payment of the debt, shall be deemed to have been served on such person on the date of joinder.
In the Peter Taylor matter the Plaintiff was seeking to join a further defendant in terms of Rule 10(3) of the court rules. The court referred to various matters pointing out the opposing positions held by our courts. The crisp point on which the court relied for prescription to be interrupted was the question of whether the process served can be considered as a step in the enforcement of a claim for payment of a debt. The court held that it would be “stretching the interpretation of the Act a little too far to say that the application constitutes a ‘process’ whereby the creditor claims payment of the debt” and that its service thereof interrupted prescription. The Court found that it could not be said that the joinder application finally disposed of some elements of the claim and also that cause of action in the joinder applications differed from the cause of action for damages that was initially pleaded.
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