Prescription Flashcards
Define:
Prescription deals with the effect of the passage of time on obligations.
Act
Prescription Act 68 of 1969
Prescription periods are set out in which section?
S11
When does prescription begin?
As soon as the debt is due.
S12(2) of the Act provides…
If the debtor wilfully prevents the creditor from knowing that the debt exists, prescription will not begin to run until the creditor becomes aware of it.
The ending of prescription will be delayed if:
o The creditor is calpae incapax.
o The debtor is outside the Republic.
o The creditor and the debtor are married to each other.
o The creditor and the debtor are partners, and the debt is one that arose out of the partnership relationship.
o The creditor is a juristic person.
o The debt is the object of a claim filed against the estate of a debtor who is deceased, insolvent, or a company in liquidation.
o The creditor or debtor is deceased and an executor has not been appointed.
There are two types of interruption of prescription:
o Judicial interruption by service of process on the debtor, and
o Interruption by acknowledgment of liability.
Case where the Court set out the key elements of acknowledgment of liability:
Road Accident Fund v Mothupi (an acknowledgement of liability is a matter of fact, not a matter of law, and the intention of the debtor is an important factor)
Onus of prescription:
The onus is on the party who invokes the prescription to plead and prove the facts that indicate that prescription has taken effect.
S23 provides for a two-tier prescription system for RAF:
o A 3-year prescription period, calculated from the date upon which the cause of action arose, applies for lodging a claim against the Fund in terms of S24 of the Act.
o If a claim is not lodged within this period, prescription takes effect, and the claim is lost.
o If the claim is properly lodged within the period, the second tier of the prescription system comes into operation.
