Celesté Snyders | Attorney | SchoemanLaw Inc | mail me |
Are you aware that there is a prescription period for every claim?
It would help if you were mindful of the prescription periods and how they apply to your claim.
This article aims to explain the prescription periods, when they apply, and the exceptions to them. The prescription period is governed by the Prescription Act 68 of 1969 (the “Act”).
What is a prescription?
In terms of the Act, a prescription period is when the opportunity to claim or the obligation to pay money has lapsed.
The prescription period applies to legal claims and debts. The prescription period will start to run after an incident, or a debt becomes due. If you miss your opportunity to lodge a claim within the prescription period, you have lost your opportunity to institute a lawsuit.
When does a claim prescribe?
In most cases, the prescription period is generally 3 (three) years from the date the cause of action arose. However, the length of a prescription period depends on the type of claim or debt.
With that being said, the prescription period depends on the type of claim or debt in certain circumstances. However, as previously mentioned, in most cases, the claim prescribes within 3 (three) years from the date the cause of action arose.
Section 11 of the Prescription Act prescribes the following prescription period:
- 30 years for debts secured by mortgage bonds, judgment debt;
- 15 years for certain debts owed to the State,
- 6 years for debts arising from a bill of exchange, notarial contract, and
- 3 years in other cases, save for where an Act of Parliament provides
Prescription for claims against the state
Prescription against organs of the State is governed by the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, read together with the Prescription Act. The purpose of the Legal Proceedings Against Certain Organs of State is to regulate prescription periods of debt for which certain organs of State are liable.
Claims against the state include the following:
- medical malpractice claims against state hospitals;
- electrocution-related claims against Eskom;
- personal injury claims against PRASA or Metrorail;
- wrongful arrest or police brutality claims against the SAPS.
Grounds for delaying a prescription period
A prescription period is delayed if one of the following restrictions apply, namely:
- the creditor is a minor, insane or under curatorship;
- the debtor is outside of South Africa;
- the creditor and the debtor are married to each other;
- the creditor and the debtor are partners, and the debt arose from a partnership agreement;
- the debtor is a member of the creditor, being a governing body, an organisation or a business;
The prescription will stop on, after or within one year before the normal prescription period ends. If the above happens, one year will be added after the date on which the restriction stopped.
When will a prescription period be interrupted?
Section 4 of the Prescription Act governs when a prescription period may be interrupted.
The running of a prescription is interrupted in the following way:
- When the debtor acknowledges the debt by way of making a payment to the creditor before prescription or,
- The creditor serves a summons on the debtor to claim payment of the debt due.
There is a significant difference between interrupted prescription and delaying of prescription. Delaying of the prescription period is when the running of the prescription is “postponed” due to the reasons mentioned.
In conclusion
The prescription will only start to run when the minor reaches majority; the debtor is back in South Africa; the creditor and debtor are no longer married etc.
Interruption of a prescription period is when the debtor starts making a payment towards the debt before the prescription period or when the creditor institutes legal proceeds through a summons before the prescription period. That is the difference between interrupted or and delayed prescription periods.
Prescription is not as simple as it seems, it is, therefore, crucial that if you are of the view that a claim may have prescribed, to take professional advice.
