Amendments to pleadings are a common occurrence as parties navigate the rapids of litigation, but they are not without limits. The recent decision in Bobe v Van Der Walt (922/2023) [2026] ZANWHC 67 (17 March 2026) demonstrates the importance of properly pleading all applicable causes of action upon which you intend to rely, particularly in light of the risk of prescription.
In this case, the plaintiff instituted action in April 2023 following complications from a medical procedure performed in December 2020. Her original particulars of claim were framed in contract, alleging that the parties entered into a partly oral, partly written agreement and that the defendant failed to perform the procedure with reasonable professional skill, having acted negligently. The plaintiff claimed damages for past medical expenses, future medical expenses, past loss of earnings, and general damages.
Following an exception taken by the defendant on the basis that the particulars of claim failed to set out a complete cause of action in either contract or delict, which exception the Court upheld, the plaintiff was ordered to amend her particulars of claim in July 2024. The plaintiff elected to amend her claim to rely solely on delict, removing all references to the contractual claim. The defendant opposed the amendment, arguing that the proposed delictual claim constituted a new debt which had prescribed in December 2023.
The legal question before the Court was the following: Does the amendment introduce a new cause of action (and therefore a new debt) that has already prescribed or does it merely clarify the same underlying debt already claimed?
Our courts have long held that amendments will generally be allowed unless they are made mala fide or will cause prejudice which cannot be compensated for by an order for costs or some other suitable order. Depriving a party of a valid defence, such as prescription, would constitute the kind of prejudice envisioned here. The defendant contended that a debt premised on a contractual obligation and a debt premised on delictual liability cannot be said to be the same debt.
The plaintiff argued that the amendment merely clarified the legal basis of the claim, however the Court rejected this characterisation. It emphasised that contractual liability and delictual liability arise from fundamentally different legal obligations and are therefore conceptually distinct causes of action. A contractual claim enforces a voluntarily assumed obligation between the parties whereas a delictual claim arises from a duty imposed by law and exists independently of agreement. Even when the factual matrix overlaps, as they often do in context of medical malpractice, these remain different debts for purposes of prescription.
The Court confirmed that merely pleading negligence within a contractual framework does not convert a contractual breach into a delictual cause of action. The negligence averred to in this context described the manner in which the contractual term was breached, not a separate legal basis for liability.
In the proposed amended particulars, the plaintiff explicitly pleaded that the “debt” became due on 15 December 2020. Under section 11(d) of the Prescription Act, a claim of this nature prescribes within three years, meaning it prescribed on 15 December 2023, months before the plaintiff delivered her notice of intention to amend on 5 July 2024.
With reference to section 15(1) of the Prescription Act, the Court held that prescription was not interrupted by the service of the original combined summons in April 2023, because that process claimed only a contractual debt.
The decision in Bobe v Van der Walt is a sharp reminder of the importance of identifying and properly pleading all applicable causes of action when issuing summons.
