150 MACDONALD, FORMAN & Co. V. VAN ASWEGEN.

[O.P.D.] [1963 (2)]

" give such directions and make such provision as seem just for placing the
company and all other persons in the same position as nearly as may be, as
if the company had not been struck off."
I regret that I am unable to agree with the Registrar that the sub-
section confers power to make an order which will operate for a
A limited purpose or time and then fall away.
The rule is confirmed.

Applicant's Attorneys: Winterton, Holmes & Hill.

MACDO'NALD, FO,RMAN & CO. v. VAN ASWEGEN.

(ORANGE FREE STATE PROVINCIAL DIVISION.)

C
1963. January 24; February 7. PoTGIETER, J.

Practice.-Pleadings.-Declaration.-Amendment.-New cause of ac-

tion introduced.-Does not operate retrospectively to date of issue
of summons.-Defendant wishing to plead prescription not pre-
D judiced.-Prescription.-lnterruption of.-Plaintiff applying to
amend summons to introduce new cause of action.-Amendment
not retrospective to date of issue of summons.---Defendant wish-
ing to plead prescription not prejudiced.

E On 5th February, 1958, applicant issued summons for an amount in respect of

goods sold and delivered and services rendered during May, 1955 to January.
1957. Applicant now applied to amend its declaration by substituting a new
period, viz February, 1957 to May, 1957. Respondent opposed the granting
thereof on the ground, inter alia, of prejudice, in that the amendment
would be deemed to have been made when the summons was issued on
5th February, 1958, which would prevent respondent being able to plead
prescription of the new debt, i.e. the new cause of action.
F Held, that the date of the institution of the new action was either that of
service of notice of application to amend or the date of the order amend-
ing the summons and declaration, and, accordingly, that the respondent
was not prejudiced.
Held, further, as there might be defences open to the applicant when the plea
of prescription was raised, ·that the amendment should not be refused on
the ground that the claim was prescribed. Application accordingly granted.
G
Application for leave to amend a declaration. The nature of the
pleadings appears from the reasons for judgment.
P. E. Linde, for the applicant: Die doel van die wysiging is klaar-
blyklik om die eksepsie onnodig te maak. Die wysiging geskied oor-
eenkomstig Reel 36 en hiervolgens mag wysigings toegestaan word
H wat nodig is om die korrekte dispuut tussen die partye te formuleer.
Die praktyk bet onstaan dat 'n wysiging vir die genoemde doel toege-
staan word mits so 'n aansoek nie ma/a fide is nie en dit nie 'n
onregverdigheid vir die antler party tot gevolg het wat nie met koste
reggestel kan word nie; sien Herbstein, bl. 290-1; Stolz v. Pretoria
North Town Council, 1953 (3) S.A. op bl. 886; Heeriah and Others
v. Ramkissoon, 1955 (3) S.A. op bl. 221, 224. Dit is duidelik dat die
aansoek nodig is om die korrekte geskilpunt te formuleer en daar is

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 MACDONALD, FORMAN & Co. V. VAN ASWEGEN. 151
[POTGIETER, J.] [1963 (2)] [O.P.D.]
geen suggestie van mala fides teen respondent nie. Die stelling dat
respondent nie verjaring sal kan pkit nie, berus op 'n wanopvatting
van die regsposisie. Art. 14 van Wet 18 van 1943 bepaal dat verjaring
op enige stadium van die verrigtinge opgewerp kan word; sien Stolz
se saak, supra of bl. 886 en op 1954 (1) S.A. te bl. 113. Ten opsigte van A
die houding van ons Howe teenoor bloot tegniese eksepsies, sien
Herbstein, bl. 269-70; Gedge v. Pretoria Suburbs Health Committee,
1910 T.P.D. op bl. 113; Ritch v. Bhyat, 1913 T.P.D. op bl. 592-3. Die
gevalle waar verwys word na ,,ontydige wysigings" is gevalle waar
wysiging op 'n laat stadium in die verhoor self aangevra word; vgl.
Krogman v. van Reenen, 1926 0.P.D. op bl. 194. 'n Wysiging op die B
huidige tydstip kan onmoontli.k nie ontydig wees nie. Respondent
sal ten minste ma/a fides, kwelsugtigheid of misbruik van die regsposisie
moet bewys; vgl. Sussman v. Testa, 1951 (2) S.A. 226; Distin' s Seed
Cleaning v. Stuart Wholesalers, 1954 (1) S.A. 283. In die omstandig-
hede word dit submitteer dat die wysiging toegestaan sal word en koste C
beveel sal word soos deur applikant aangebied maar dat respondent
die koste van opposisie sal betaal Qmdat die opposisie onredelik was;
vgl. Goodwood Municipality v. Rabie, 1954 (2) S.A. op bl. 408.
H. E. J. Flemming, for the respondent: Dit is duidelik dat daar geen
dagvaarding uitgereik is vir enige item verkoop in die betrokke periode
nie. Hierdie eis word nou vir die eerste maal ingevoeg. Verskillende D
items op 'n ope rekening verjaar afsonderlik; sien Pothier, Verbinte-
nissen, art. 680, 714; art. 5 (1) (d) en 12 van Wet 18 van 1943;
Cohen & Sons v. Dormehl, 1945 (1) P.H. F. l. Verjaring kan gestuit
word deur diening van 'n dagvaarding maar alleen waar die spesifieke
eis in die dagvaarding is; sien Park Finance Corp. (Pty.), Ltd. v. van E
Niekerk, 1956 (1) S.A. op bl. 673; O.K. Motors v. van Niekerk, 1961
(3) S.A. op bl. 151. Die eis in die onderhawige saak het dus reeds
verjaar. Daar is outoriteit dat 'n wysiging geld vanaf die datum van
diening van die dagvaarding vir doeleindes van stuiting van verjaring;
sien Smith v. Williams, 1952 (2) S.A. 687. Respondent kan in elk
geval nou die houding inneem dat 'n wysiging geen doel sal dien F
nie aangesien die eis reeds verjaar het (insoverre as wat dit ooit
mag bestaan het). In so 'n geval sal 'n aangevraagde wysiging nie
toegestaan word nie; sien Park Finance saak, supra op bl. 669;
Pistorius & Kie v. Steyn, 1958 (3) S.A. 440; Yu Kwam v. President
Insurance Co., Ltd., 1963 (1) S.A. op bl. 68; Hilton v. Sutton Steam G
Laundry, 1945 (2) A.E.R. 428; Marshall v. London Passenger Trans-
port Board, 1936 (3) A.E.R. 83. Al sou die aansoek toegestaan word,
was respondent se opposisie, in die lig van bogenoemde beslissings,
redelik en behoort hy 'n kostebevel in sy guns te kry; sien Greyling
v. Nieuwoudt, 1951 (1) S.A. 88; Myers v. Abramson, 1951 (3) S.A.
op bl. 455; Meyer, NO. v. Netherlands Bank, 1961 (1) S.A. 580. H
Linde, in reply.
Cur. adv. vult.
Postea (February 24th).

PoTGIETER, J.: On the 5th February, 1958, applicant in this matter

issued summons against respondent for payment of the sum of

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 152 MACDONALD, FORMAN & Co. v. VAN AsWEGEN.
[POTGIETER, J.] [1963 (2)] [O.P.D.]

£325 13s. 5d. in respect of goods sold and delivered and services ren-
dered in connection therewith during the period May, 1955, to January,
1957. This summons was served on respondent on the 7th February,
1958. On the 8th June, 1962, a declaration was filed and it is alleged
A therein that
"during the period May, 1955, to January, 1957, and at Kroonstad the plaintiff
sold goods to the defendant and rendered services to defendant in conjunction
therewith, on an open account at the defendant's special instance and request."
Further particulars were asked for and inter alia requesting a detailed
statement of the goods allegedly sold and the services rendered and the
B dates thereof. Such a statement was furnished; therefrom it appears that
the goods were sold and services rendered for an amount of £247 19s. 6d.
during the period February, 1957, to May, 1957.
Respondent thereupon took exception to plaintiff's declaration on the
ground that it is vague and embarrassing. Applicant on the 8th January,
C 1963, then filed the following notice of amendment:
" Be pleased to take notice that application will be made on Thursday the
24th day of January, 1963, at 10 o'clock in the fore-noon or as soon there-
after as counsel may be heard for an order to amend plaintiff's declaration
by substituting for the words • May, 1955 to January 1957' in para. 3 thereof
the words 'February, 1957, to May, 1957.'
Plaintiff offers to pay the wasted costs occasioned by .this amendment as
D well as the wasted costs of defendant's exception and notice of motion dated
the 27th of October, 1962."
The application is now before this Court to determine whether the
amendment as envisaged in the said notice should be granted. Mr. Linde
also asked for an amendment of the dates in the summons. Although no
notice was given that such an amendment would be applied for, Mr.
E Flernming, on behalf of respondent, had no objection to the summons
being amended should the Court decide to amend the declaration.
Respondent's attorney filed a rather lengthy affidavit wherein he set
out the reasons for the objection to the amendment. The gist of these
reasons are, firstly, that there is no application for the amendment of
F the amount appearing in the declaration and that even if the amend-
ment sought is granted the declaration would still be open to ex-
ception on the ground that it is vague and embarrassing. This is, how-
ever, not a good ground for objection. Applicant does not ask for the
amendment of the amount and if the amendment sought is granted it
will be for respondent to decide whether he persists in the exception
G which is set down for hearing on 8th February, 1962. Mr. Flemming,
for respondent very rightly did not argue that this was a good ground
for objection to the amendment.
The second ground is set out in the affidavit as follows:
"4 (a) The defendant respectfully submits that the issue of plaintiff's sum-
mons on the 28th February, 1958, in respect of goods sold and delivered and
H services rendered during the period May, 1955. to January. 1957, could not
interrupt prescription in regard to a claim by plaintiff for goods alleged to have
been sold and delivered and services rendered by plaintiff to defendant during
the period February. 1957, to May, 1957. Defendant respectfully submits that
any claim plaintiff may have in respect of goods sold and delivered and ser-
vices rendered during the period February, 1957, to May. 1957, has become
and is prescribed in terms of the provisions of the Prescription Act, 18 of 1943.
(b) In the premises the defendant respectfully submits that if the plaintiff's
application for ·the amendment of its declaration is granted the defendant will
he irreparably prejudiced in that he will lose the advantage of being able to
plead prescription in respect of plaintiff's claim for goods alleged to have been

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 MACDONALD, FORMAN & Co. V. VAN AsWEGEN. 153
[POTGIETER, J.] [1963 (2)] [O.P.D.]
sold and delivered and services rendered during the period February, 1957, to
May, 1957."
Mr. Flemming argued that this was a proper ground for refusing the
application inasmuch as the granting of the amendment will prevent
defendant from effectively pleading prescription because the summons A
issued against respondent on the 5th February, 1958, interrupted pre-
scription. He contended that should the summons be amended the
amendment would have retrospective effect and the summons must
then be deemed to have included the amendment from the date of its
original issue. For this propositon Mr. Flemming relied on the case of
Smith v. Williams, 1952 (2) S.A. 682 (W) at p. 687, where PRICE, J., B
said:
.. The summons did interrupt prescription and the date at which prescription
was interrupted was not the date when the amendment was allowed but the
date when summons was issued."
Mt. Linde, for applicant, conceded that the summons issued on the
5th February, 1958, only served to interrupt prescription in respect of c
the claim as then stated in the summons and that the date of the cause
of action now sought to be introduced by the amendment is the date
of the notic~ of amendment. His contention is that the amendment
cannot have any retrospective effect.
I am unable to agree with Mr. Flemming's contention. It is true that
if the effect of the amendment is that the summons of the 5th February, D
1958, interrupted prescription of the debt which forms the cause of
action now sought to be introduced, the amendment cannot be granted.
The Court clearly has the power to grant the amendment which intro-
duces a new cause of action but only if no prejudice is occasioned
thereby. If the effect of the proposed amendment is to interrupt pre- E
scription of the new debt, then clearly that would deprive respondent of
effectively pleading prescription and no doubt that would be prejudi-
cial to him. (See Park Finance Cnrporation (Pty.) Ltd. v. van Niekerk,
1956 (1) S.A. 669 (T); Yu Kwam v. President Insurance Co. Ltd.,
1963 (1) S.A. 66 (T) at p. 68). It is common cause that the amend-
ment seeks to introduce a new cause of action. F
Mr. Flemming was unable, apart from the case of Smith v. Williams.
supra, to refer the Court to any authority for his contention that the
amendment now applied for is deemed to have been made when the
summons was issued on the 5th February, 1958. The case of Smith v.
Williams, supra, is, however, clearly distinguishable and I am of the G
opinion that it was effectively distinguished by HILL, J., in the case of
O.K. Motors v. rnn Niekerk, 1961 (3) S.A. 149 (T) at p. 152, as follows:
"The case of Smith v. Williams, 1952 (2) S.A. 682 (W), to which we
were referred, does not assist the appellant. In that case the plaintiff claimed
£8.000 as damages arising from an accident due to the negligence of the driver
of a car, the cause of action being that the owner of the car had failed to
take out an insurance policy against third party risks in terms of Act 29 of H
1942. The summons and declaration omitted to make any allegation that the
car was not insured. It was held that it was not necessary to make the aver-
ment in the summons, and that the amendment of the declaration did not
affect the interruption of prescription. At p. 687 PRICE, J., concludes by saying:
· For these reasons it seems to me that the amendment must be allowed.
The summons did interrupt prescription and the date at which prescrip-
tion was interrupted -was not the date when the amendment was allowed but
the date when the summons was issued.'
It is for reasons of convienence that fresh causes of action may be incor-
porated in original proceedings even if such fresh causes of action have arisen

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 lj4 MACDONALD, FORMAN & Co. V. VAN AsWEGEN.
[POTGIETER, J.] [1963 (2)] [O.P.D.]
after the issue of summons. (See Pullen v. Pullen, 1928 W .L.D. 133). Accord-
ing to sec. 6 (1) (b) extinctive prescription shall be interrupted by service
on the debtor of any process whereby action is instituted. The summons in
the present case is the process by which the original action for payment of
£120 on the hire-purchase agreement was instituted and it is the prescription of
that claim only which was interrupted by the summons. The process whereby
A action for the payment of an amount claimed for work done, material supplied,
and goods sold was instituted, is the application for amendment to include the
additional claim in the proceedings against the defendant and the date of ser-
vice of this process is the date, if timeous, which would interrupt prescription
of the amended claim."
With respect I find myself in full agreement with these remarks.
This was not an application for leave to amend in terms of Rule 36
B but simply an application for the Court to amend in terms of the
notice of application. Although such a course is not provided for in the
Rules the practice of this and other Courts has sanctioned such a proce-
dure for many years.
I hold the view, therefore, that the summons issued on the 5th
C February, 1958, will not interrupt prescription of the debt which forms
the cause of prescription of the debt which forms the cause of action
which is sought to be introduced by the amendment, but that either the
service of notice of application to amend or the date of the order amend-
ing the summons and declaration is the date of the institution of a new
action. For the purposes of this application it is unnecessary to decide
D whether the date of service of the notice or the date of the order of
amendment is the date of the introduction of the new cause of action.
Mr. Flemming, also submitted that as the claim is clearly prescribed
the Court will· not allow an amendment because it is then clear that
plaintiff can never succeed in his claim. He referred the Court to the
E affidavit of respondent's attorney where he stated that owing to the
fact that the effect of the amendment would be that goods were sold and
services rendered during the period February, 1957, to May, 1957, and
for that reason the claim is prescribed and that the Court must in the
absence of any reply by applicant accept that the claim has been pre-
scribed.
F I cannot agree. There may be defences open to applicant when the
plea of prescription is raised and, even although plaintiff did not reply
to the categorical statement of respondent's attorney the Court cannot
be certain that applicant's claim can never be enforced. It is only when
the Court is absolutely certain that the claim will be wholly ineffective
G that an amendment will be disallowed on that ground.
I am of the opinion, therefore, that the declaration and summons
should be amended.
There remains the question of costs. In the case of Myers v.
Abramson, 1951 (3) S.A. 438 (C) at p. 455, VAN WINSEN, A.J., said:
" It does not appeal to me as being fair and reasonable that the opponent
H to applicant for an indulgence should be put in a position that he opposes
the granting of the indulgence at his peril in the sense that if the amendment
is granted he cannot recover his costs of opposition or may even have to
pay such costs as are occasioned by his opposition. It seems to me that the
applicant for the indulgence should pay all such costs as can reasonably be
said to be wasted because of the application, these costs to include the costs
of such opposition as is in the circumstances reasonable, and not vexatious or
frivolous. This seems to me to be the purport of such judgments as Middeldorf v.
Zipper, N.O., 1947 (1) S.A. 545 (S.R.); Frenkel, Wise and Co., Ltd. v. Cuth-
bert, 1947 (4) S.A. 715 (C); Greyling v. Nieuwoudt, 1951 (1) S.A. 88 (O)."
I respectfully agree with those remarks. I am not prepared in this case

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 VAN DER WESTHUIZEN V. VAN DER WESTHUIZEN. 155
[HOFMEYR, R.] [1963 (2)] [O.P.A.]
to say that the opposition was unreasonable. frivolous or vexatious.
Accordingly the summons is amended by the deletion in prayer (a)
of the words " May, 1955, to January, 1957 ". and the substitution there-
for of the words: " February, 1957, to May, 1957." The declaration is
amended in terms of the notice dated 8th January, 1963. Applicant to A
pay the costs of the application as well as the costs of opposition.

Applicant's Attorneys: Naude en Naude. Respondent's Attorneys:

Dennis Nathan and Botha.

B
VAN DER WESTHUIZEN v. VAN DER WESTHUIZEN.

BUITENDACH v. BUITENDACH.

(0RANJE-VRYSTAAT PROVINSIALE AFDELING.) C

1963. Januarie 10, 31. HOFMEYR, R.

*Man en vrou.-Egskeiding.-Herstel van huweliksregte.-Bevel nisi.--

Bestelling van buite die regsgebied van die Hof (maar binne die
Republiek).-Geendossering van ingevolge art. 25 van Wet 59 D
van 1959 nie nodig nie.-Praktyk.-Dagvaarding.-,,Siviele dag-
vaarding" in art. 1 van Wet 59 van 1959.-Bevel nisi uitgereik in
geding vir herstel van huweliksregte nie ingesluit nie.

Dit was nie die bedoeling van die Wetgewer nie dat bevele vir die herstel E
van huweliksregte by die woqrdomskrywing van ,,siviele dagvaarding" in
artikel 1 van Wet 59 van 1959 ingesluit moes word nie. Sulke bevele dus
hoef nie ingevolge artikel 25 van die Wet geendosseer te word voordat hulle
effektief buite die regsgebied van die betrokke Afdeling van die Hoog-
geregshof (maar binne die Republiek) bestel kan word nie.

Verkeerdag van bevele nisi. Die feite blyk uit die uitspraak. F
H. P. Viljoen, namens die eiseres, van der Westhuizen.
S. A. Visser, namens die eiseres Buitendach.
Geen verskyning namens die verweerders.
Cur. adv. vult.
G
Postea (Januarie 31).
HoFMEYR, R.: In beide die bogemelde gevalle was die verweerders
behoorlik gedagvaar om hulle te verantwoord in 'n aksie vir die herstel
*Husband and wife.-Divorce.-Restitution of conjugal rights.-Rule nisi.-
Service outside jurisdiction of the Court (but in the Republic).-Endorse- H
ment in terms of sec. 25 of Act 59 of 1959 not necessary.-Practice.-
Summons.-Service.-" Civil summons" in sec. 1 of Act 59 of 1959.-Rule
nisi issued in action for restz'tution of conjugal rights not included.
It was not the intention of the Legisla·ture that orders for the restitution of
conjugal rights should be included in the definition of "civil summons"
in section l of Act 59 of 1959. Such orders therefore do not have to be
endorsed in terms of section 25 of the Act before they can be effectively
served outside the jurisdiction of the Division of the Supreme Court con-
cerned (but within the Republic).

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