Prescription

What does prescription mean?

  • The Prescription Act 68 of 1969 (“PA”) says it means a debt (for example payment of money) is extinguished after the lapse (passing) of a time period.
  • South Africa has different laws which specify time periods, for example the PA says contractual and delictual debts extinguish after 3 years from when prescription starts.
  • Prescription may be delayed or interrupted.

What are the consequences of an extinguished debt?

  • The debtor is not liable to the creditor for a debt after the time period has lapsed.
  • The creditor may not institute legal action against the debtor for a debt.

When does prescription start?

  • As soon as the debt is due (a debt is due once the creditor can identify the debtor and the facts from which the debt arises).
  • If the debtor prevents the creditor from gaining knowledge of the debt (excluding debts arising from agreements) prescription runs from when the creditor has knowledge of the existence of the debt.

When will prescription be delayed? 

  • Prescription will be delayed it two facts exist.
  • Firstly, one of the following impediments must exist, when the:
    • creditor is a minor, insane, or under curatorship;
    • debtor is outside the Republic of South Africa;
    • creditor and the debtor are married to each other;
    • creditor and the debtor are partners and the debt arose from a partnership agreement;
    • debtor is a member of the governing body of the juristic person (who is the creditor);
    • debt is the object of a dispute in arbitration; or
    • executor of a deceased estate has not yet been appointed.
  • Secondly, the impediment must stop within 1 year before the date of prescription should have been completed in order for prescription to be delayed and 1 year added on. For example: a debt is due on 1 January 2008. The period of prescription is 3 years. Prescription should be completed by 1 January 2011. On 1 January 2009 (after prescription has run for 1 year) the debtor:
    • leaves South Africa for 6 months (he returns 1 July 2009). Prescription will be completed on 1 January 2011 (the debtor’s absence from the Republic exceeds a year before prescription is due to be completed) (option A); or
    • leaves South Africa for 18 months (he returns 1 July 2010). Prescription will be completed on 1 July 2011 (the debtor’s absence from the Republic was less than a year before prescription was due to be completed, so 1 year of prescription is given to the debtor from the date the impediment stops) (option B).

When is prescription interrupted?

  • The running of prescription is interrupted by:
    • acknowledgment of liability by the debtor; or
    • a service of a process on the debtor, where the creditor claims payment of the debt (for example, a letter of demand or summons).

Prescription runs for a time period:

 

TIME PERIOD BEFORE A DEBT IS EXTINGUISHED

DESCRIPTION OF DEBT TO BE EXTINGUISHED

30 years

A:

·          debt secured by mortgage bond;

·          judgment debt (given by the courts);

·          debt for tax; or

·          debt owed to the State for profits relating to substances (such as mine minerals).

15 years

·          A debt owed to the State for a loan of money, or sale or lease of land by the State to the debtor.

6 years

·          A debt relating to a cheque.

3 years

·          Delictual debts (unless the claim is a contribution for the apportionment of damages – then it is reduced to 1 year); and

·          contractual debts.

·          This includes actions against State Organs.

3 months

·          For a claim against an attorney for loss due to theft by attorney.

·          Calculated from the date of becoming aware of the theft.

12 months

·          Claims for compensation for injuries sustained in the course of employment.

Owner / driver identified:
3 years
2 years

 

Owner / driver not identified:
2 years
3 years

·          To lodge a claim with the Road Accident Fund.

·          To issue summons against the Road Accident Fund after lodging a complaint

·          = 5 years in total.

 

·          To lodge a claim with the Road Accident Fund.

·          To issue summons against Road Accident Fund after lodging a claim

·          = 5 years in total.

 

Prescription does not run for a debt relating to:

  • rape;
  • sexual exploitation of children and persons who are mentally disabled; and
  • trafficking of persons.

How can Legal Eagle assist you?

Legal Eagle can assist you with the following:

  • write a letter to your creditor stating that prescription has lapsed, been delayed or interrupted; and
  • calculate your prescription period for you.

Key

  • EXTINGUISHED - the debt comes to an end
  • IMPEDIMENT - a hindrance or obstruction
  • DELAYED - prescription is suspended (put on hold) to a later date 
  • INTERRUPTED - prescription is broken and can start afresh
  • CONTRACTUAL DEBT- where a debt (payment) arises from an agreement between the debtor and creditor
  • DELICTUAL DEBT - where a debt (payment) arises from damages caused by the debtor to the creditor