FirstRand Bank Limited v Nedbank (Swaziland) Limited

Nedbank (Swaziland) Ltd issued summons against FirstRand Bank Ltd in July 2000 claiming, as cessionary of Swaziland Timber Products Ltd, that FirstRand had been unjustly enriched through the payment of fraudulently altered cheques deposited by third parties. After the prescriptive period had expired, Nedbank amended its particulars of claim to abandon the cession and instead allege that it itself was impoverished because cheques were intercepted in transit and, under a clearing agreement, it bore the loss. FirstRand raised a special plea of prescription, contending that the amended claim relied on a different debt and right of action, and that prescription had therefore not been interrupted by the original summons.

The appeal was upheld with costs. The order of the High Court was set aside and replaced with an order upholding the defendant’s special plea of prescription and dismissing the plaintiff’s claim with costs.

The case clarifies South African prescription law by confirming that an amendment will not interrupt prescription where it introduces a different right of action, particularly where an essential element such as the identity of the impoverished party in an enrichment claim changes. It reinforces the distinction between a right of action and a cause of action and provides authoritative guidance on amendments and prescription.