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Prescription

- Featured article by LAWYERS-ONLINE.CO.ZA

The Prescription Act

The Prescription Act 68 of 1969 (“PA”) says it means a debt (eg. payment of money) is extinguished after the lapse (passing) of a time period.

South Africa has different laws which specify time periods, for example the PA says contractual and delictual debts extinguish after 3 years from when prescription starts. Prescription may be delayed or interrupted.

The consequences of an extinguished debt are as follows: the debtor is not liable to the creditor for a debt after the time period has lapsed; and the creditor may not in stitute legal action against the debtor for a debt.

Prescription starts as soon as the debt is due (a debt is due once the creditor can identify the debtor and the facts from which the debt arises). If the debtor prevents the creditor from gaining knowledge of the debt (excluding debts arising from agreements) prescription runs from when the creditor has knowledge of the existence of the debt.

Prescription will be delayed it two facts exist. Firstly, one of the following impediments must exist, when the: creditor is a minor, insane, or under curatorship; debtor is outside the Republic of South Africa; creditor and the debtor are married to each other; creditor and the debtor are partners and the debt arose from a partnership agreement; debtor is a member of the governing body of the juristic person (who is the creditor); debt is the object of a dispute in arbitration; or executor of a deceased estate has not yet been appointed. Secondly, the impediment must stop within 1 year before the date of prescription should have been completed in order for prescription to be delayed and 1 year added on .

The running of prescription is interrupted by: acknowledgment of liability by the debtor; or a service of a process on the debtor, where the creditor claims payment of the debt (for example, a letter of demand or summons).

Prescription does not run for a debt relating to: rape; sexual exploitation of children and persons who are mentally disabled; and trafficking of persons.

Date: 16th July 2014
Legislation: Prescription Act 68 of 1969

Prescription

 

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