Prescription

Question 1

Explain the effect of extinctive prescription on a claim/debt

Answer 1

If a claim or debt has prescribed it still exists as a natural obligation but becomes unenforceable

Question 2

Explain the periods that apply to most common law claims

Answer 2

The normal prescription period to common law claims is 3 years but 6 years iro negotiable instruments

Question 3

Explain what the risks are if summons is issued on a claim which has prescribed

Answer 3

If summon is issued after prescription the consequences are:

• it is not unprofessional to sue provided that
• the client has been informed of the implications in that while any payment by the debtor may be lawfully received
• and the presiding officer may not mero motu rise the issue of prescription
• the debtor may raise a special plea of prescription which is likely to succeed
• probably resulting in an order of costs against the plaintiff but costs will be low if plaintiff withdraws claim on receipt of special plea

Question 4

Explain what the effect on current civil litigation would be in the magistrates court if he does not take any steps for a year after issuing summons; for a year after service of summons; for a year after obtaining judgment and if any adverse effects can be counteracted

Answer 4

If A should issue summons and be unable to prosecute the matter the consequences are that-

• the summons will lapse if not served within a year of issue
• summons will also lapse if the plaintiff takes no steps within a year of service
• judgment remains valid for 30 years

Under rule 10 the plaintiff may apply before the year expires for extension on affidavit if the defendant has requested extention. if summons has lapsed the plaintiff may apply under Rule 60 for revival of the summons subject to an order for costs

Question 5

Explain how are periods calculated in terms of Rule of Court and the Interpretation Act Respectively

Answer 5

• saturdays, sundays and public holidays not be reckoned unless the contrary appears. through interpretation this has been taken to apply only to a period of days.

Interpretation Act provides that the first day is excluded but last day included in calculating the period of days unless the last day is a Sunday or public holiday in which case one exclude the first day and every Sunday and public holiday.

A month is defined as a calender month.

Question 6

A client requires you to collect a debt which on the face of the documents have prescribed. What questions will you ask the client to be sure that the claim has prescribed? How do you explain to your client the effects of prescription; whether you may proceed; the risk involved and best practical approach

Answer 6

• Enquire whether the debtor has acknowledged liability, has been overseas or whether creditor has been in a position which interrupts or stays prescription.
• I will explain that while payments may be received legal action can be resisted by a special plea
• it is often well worth proceedings with a letter of demand and summons
• if the plea is raised the creditor can withdraw while costs are still limited