Law of Prescription in South Africa

Law of Prescription in South Africa

Everyone in the country is presumably aware that a debt, in some way or another, expires. The actual rules as to what transpires is a bit of a hazy thought to some. In its simplest form, prescription could be considered as a debt’s lifetime. Just as everything else in the world there is an end to a lifetime, it is at this end that we would say that a debt has prescribed. It is therefore no longer enforceable. So how long does it take for a debt or claim to actually expire; and what can you do to prevent a debt from prescribing?

Prescription can become quite complicated to calculate, especially if the debt is that of a contractual nature in which the terms are not clear. Prescription is not calculated from the date that the agreement is entered into. Prescription is rather calculated from the date on which payment became due and payable. If you do not have a good agreement that states when a payment is due, it will be difficult to determine when the period of prescription begins.

There are however, a few safeguards in place with the purpose of protecting a creditor. For example, if a debt is incurred by a Minor, prescription will only begin to count down from the date that the Minor becomes a Major (18). Prescription may also be delayed if the Debtor leaves the country within one year of normal prescription ending. So for example, if a debt is incurred in January 2017; following the normal prescription periods we would know that the debt would prescribe in 2020. This would change if the debtor leaves the Country one year prior to the prescription ending. Let’s say the Debtor goes to Japan to watch the Rugby World Cup. This is within one year of the debt prescribing so, in order to protect the creditor, the prescription date is delayed by a further year, the debt would now be due in 2021.

Other than delaying prescription, there are ways of interrupting prescription entirely. In other words, it may have to start over. Prescription may be interrupted if a Debtor either expressly or tacitly acknowledges their indebtedness to the Creditor. This could be by way of an Acknowledgment of Debt, or even if the Debtor makes a minimal payment towards the repayment of their debt. These acts would be sufficient to interrupt prescription. Then, of course, the most obvious way to interrupt prescription would be by legal process. You need to make sure that your Summons is served on the Debtor BEFORE the debt has run through its prescription lifetime. If you serve your Summons on the Debtor before the debt prescribes, it will effectively halt the period for as long as legal actions are ongoing.

Different debts have different time periods, and it is very important that one understands which time period applies to them. A normal civil or delictual debt only runs for 3 years. A debt that relates to a negotiable instrument (whether this is a cheque, promissory note etc) is calculated over a period of 6 years. Debts that are secured by a mortgage, or those that are by virtue of a Judgment handed down by the Court shall last for 30 years.

These are the periods available to you if your claim is that of a normal civil debt. It is very important to bear in mind that if your claim is to run through the Road Accident Fund, this Fund has its own prescription periods that vary according to a number of facts. For example, the biggest determining factor is whether or not you know the identity of the other driver. This fact alone may shift your prescription period from 3 years to 5.

Should you find yourself in a position feeling confused about whether or not your debt is still claimable or if it has expired, we very strongly advise that you approach someone with the legal know-how so that if your debt is still ‘alive’, it may be acted upon immediately before it prescribes and you are left without a claim.

 

Duncan O’Connor

Candidate Attorney