PRESCRIPTION

Tik Tok Tik Tok… the prescription clock is ticking away, and your claim might not stay. Believe it or not, the passing of time can actually influence future and current claims.

What is Prescription?

Debts, as well as all legal claims, prescribe after a certain period. The aforementioned is known as extinctive prescription. In simpler terms, the claim becomes “extinct”. Thus, to institute a claim, a complainant only has a limited fixed time prescribed by law. The claim will accordingly expire if one does not proceed with legal action before the fixed period.

What Are The Different Types of Prescription Periods?

Prescription is regulated by the Prescription Act 68 of 1969. This Act makes provision for different prescription periods for different claims. Herewith is a brief summary of the different periods of prescription:

  • 30 Years

Debt arising from a mortgage bond or as a result of a court judgment. It can also be due to taxation, or debt owing to the state in respect of profits and royalties acquired through the mining of minerals.

  • 15 Years

Debt arising from an advance or loan by the state and is still owed to the state.

  • 6 Years

Debt as a result of a bill of exchange, notarial contract, or negotiable contract.

  • 3 Years

All other debts or claims, including delicts or contracts. Also, a claim for bodily injury at the Road Accident if the vehicle’s driver has been identified.

  • 2 Years

A claim for bodily injury at the Road Accident where the vehicle’s driver has not been identified.

  • 1 Year

Claim arising from an injury during the course and scope of employment.

When does prescription start?

Depending on the cause of action, prescription will commence when all the elements of the offense are present. In the case of debt, when the amount becomes due. In terms of section 12(3) of the Prescription Act, debt will be due only when the claimant knows who the offender is and the facts that led to the claim.

Can prescription be interrupted?

The running of prescription can be interrupted in the following instances:

  • When the debtor or an agent of the debtor expressly or tacitly acknowledges the liability;
  • When the document where the creditor claims payment of the debt (usually a Summons or Notice of Motion) is served on the debtor via the sheriff.

What happens when a matter prescribes? 

The complainant will have no legal recourse to collect any debt owed to them, or depending on the matter, will not be able to institute action against the person who wronged them, without running the risk of the defence raising a special plea of prescription.

Thus the debtor will no longer be liable to you for payback thereof. Indirectly the law provides a clean break for the offender.

As mentioned above, specific actions can interrupt prescription. Contact Burger Huyser Attorneys to ensure your claim does not fall victim to prescription.

DISCLAIMER: Information provided in this article does not, and is not intended to constitute legal advice. READ MORE