Beware of Prescription: Claim as soon as possible

Prescription

Prescription is a legal concept in terms of which a debt, for example, a claim for money, becomes extinguished due to a certain period having passed before the debt is formally claimed or brought to the attention of the person or persons (the debtor) owing the debt.

Once a claim or debt is prescribed or extinguished, as it were, the debtor is no longer liable for payment of the debt.

Prescription is provided for in terms of the Prescription Act 68 of 1969 and there are different prescription periods for different types of debts or claims which can be summarised as follows:

  • Debts arising from breach of contract, damages or any other similar liabilities prescribe after a period of 3 (three) years;
  • Claims against the Road Accident Fund prescribe after 2 years where the accident is a hit-and-run and after 3 years where the driver of the motor vehicle is identified;
  • Claims for injuries at work must be reported to the employer within 12 months of the accident otherwise they will prescribe;
  • Debts secured by a mortgage bond and debts which are in respect of a court judgment prescribe after 30 years;
  • Debts relating to a cheque or promissory note prescribe after 6 years; and
  • Although claims against an organ of state fall within the first category above and must be made within 3 years, notice of the claim must be given to the organ of state within 6 months from the date on which the debt became due.

A debt is due once the person to whom the debt is owed (the creditor) can identify the person owing the debt (the debtor) as well as the facts giving rise to the debt.

Once the prescription period has started running, it can only be interrupted by two events. Firstly, the acknowledgement of the debt by the debtor before it has prescribed and secondly, by proper service of a Summons.

Failing the above, the claim will prescribe and a claim can no longer be successful despite the fact that the debtor suffered actual harm or damages and can prove the damages suffered.

It is therefore important that if you have a claim against any person or entity, you lodge your claim timeously before the matter prescribes.

 

Should you need assistance in determining whether your claim has prescribed or if you need assistance with claiming a debt we have highly qualified people to assist you. Feel free to contact us.

 

Rose Mkandhla
rose@bbplaw.attorney
Associate

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