PRESCRIPTION – When time is of the essence
Authors: Charissa Chengalroyen– Candidate Attorney
*Supervised by: Candice Pillay – Director
Claims for debts owed, rights to property, even prosecutions for sexual offences – they all have a time limit for pursuing them, known as “prescription”. A lack of consistency in the law, lack of money, lack of awareness of rights and lack of access to legal representation often turns time-delayed into justice-denied for the most vulnerable and disadvantaged in society.
Here we unpack some of the basics of prescription.
What is prescription?
Legal claims are not valid and enforceable forever. Prescription is the point where, after a specified time period, a claim is no longer valid and enforceable. The claim or related legal cause of action, or exercise of a substantive right, is “extinguished” or expired or deemed to have never existed. The principle of prescription originates in common law but was codified in the Prescription Act 68 of 1969.
Prescription Act 68 of 1969
The Prescription Act, in section 11, provides the following directives:
In regard to property, a person shall become the owner of a property by prescription if they have openly possessed the property for an uninterrupted period of 30 years, without the owner exercising any rights of ownership or control of the property. Should the possessor lose possession at any time for less than six months, this is still deemed to be uninterrupted possession and the claim is still valid.
The general rule in regard to debt is that a claim or similar legal action for debt must be executed within a period of three years of the debt being due.
This general rule comes with qualifications and exceptions:
(a) Debts prescribe after 30 years in respect of mortgage bonds, judgement debt, tax debt and any debt owed to the State for any share of the profits, royalties or similar consideration payable for mining rights.
(b) Fifteen years in respect of any debt owed to the State for an advance or loan of money, or sale or lease of land by the State to the debtor, unless a longer period applies in terms of paragraph (a).
(c) Six years in respect of a debt arising from a bill of exchange or other negotiable instrument or from a notarial contract, unless a longer period applies in terms of paragraph (a) or (b).
Interruption of Prescription
The period of prescription will be interrupted by service of legal process such as a summons or a Notice of Motion in regard to the debt or claim. However, such interruption will lapse if the claim is not prosecuted to the point of final judgment, or if the judgment is set aside. This also applies to property that is in another’s possession. Service of legal process within the 30-year period interrupts the running of prescription and will not result in the possessor acquiring the property at the end of 30 years, unless the claim is not prosecuted.
Section 12 of the Act assists in understanding when prescription commences on a debt or a claim. The period of prescription only begins once the debt is due, which is once the creditor is aware of the debt, the identity of the debtor is established and the facts from which the debt arose are clear.
There are two instances where the general rules of prescription are altered.
Road Accident Fund (Transitional Provisions) Act 15 of 2012 (TPA)
In terms of this Act, claims must be lodged with the Road Accident Fund (RAF) within a period of three years. After lodgment, a period of 120 days must lapse before the claimant may issue summons against the Fund.
The issue of prescription in Road Accident Fund matters came before the court in the recent case of Eksteen v Road Accident Fund (873/2019)  ZASCA 48 (21 April 2021). The court was asked to deliberate on the interpretation of Section 2(1)(e)(ii) of the TPA. Eksteen had instituted an action against the RAF in the Magistrate’s Court and subsequently initiated the same action in the High Court five years after the cause of action arose, without withdrawing the initial matter. The section states:
“A third party who has, prior to this Act coming into operation-
(i) lodged a claim with the Fund on the prescribed claim form in terms of the old Act, shall not be required to lodge an RAF1 form in terms of the new Act; and
(ii) instituted an action against the Fund in a Magistrate’s Court, may withdraw the action and, within 60 days of such withdrawal, institute an action in a High Court with appropriate jurisdiction over the matter: Provided that no special plea in respect of prescription may be raised during that period.”
The RAF argued in its special pleas that when the plaintiff had instituted the action in the High Court, the claim had already prescribed as the period of prescription had run from the date of the cause of action. The court found that this was an incorrect interpretation of the provision. The court employed a purposive approach to interpreting the clause paired with the sentiment that a statute ought to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void or insignificant.
The court concluded that the 60-day prescription period will only commence when the party has the intention to withdraw the matter, paired with the “overt act” of actually withdrawing the matter. The judgement centred on engaging with the meaning of the clauses and the methods of interpreting them. This indicates the importance of clauses that regulate prescription periods being clear and concise in order to provide certainty and stability in legal proceedings, which is the overarching factor and consideration when implementing prescription periods.
Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002
Another exception to the general rule of prescription is set out in the Institution of Legal Proceedings against Certain Organs of State Act which stipulates that “no legal proceedings for the recovery of a debt may be instituted against an organ of state unless the creditor has given the organ of state in question notice in writing, which must be served within six months from the date on which the debt became due”. The notice, which is set out in Section 3 of the Act, requires the claimant to submit the notice prior to instituting legal proceedings. If no notice has been sent timeously, the claimant may request the court to condone the late filing of such a notice.
Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Act 15 of 2020
This Act amended the Prescription Act in regard to prescription periods associated with a debt arising from a list of offences as per the Criminal Law (Sexual Offences and Related Matters) Amendment Act 32 of 2007 – such as rape, child pornography, exploitation and the like.
Awareness of prescription periods is vitally important when instituting claims. In practice, more often than not it is socially or economically disadvantaged individuals who are prejudiced and disproportionately affected by the application of prescription periods, simply due to lack of access to information or awareness of prescription. This exacerbates the existing inequalities entrenched in South African society. Condonation applications can potentially mitigate the negative effects of prescription, but this is not guaranteed. In the case of T M v Member of the Executive Council Department of Health Free State Province (5789/2018)  ZAFSHC 255 (28 November 2019), the court dismissed the application for condonation in terms of the Organ of States Act on the basis that the reasons provided for the delay were vague and unsatisfactory. The reasons revolved around the plaintiff’s lack of money, time, specific dates and difficulty in obtaining an attorney. Unfortunately, these reasons for delay are the most common among the most disadvantaged members of society – yet another hurdle which the poor and vulnerable will have to face when seeking justice.
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