A recent decision of the High Court has clarified the application of prescription in the context of claims for outstanding professional fees between legal practitioners. The defendant attorneys unsuccessfully raised a special plea of prescription, contending that the plaintiff advocate’s claims on its invoices, some of which dated back several years, had prescribed because summons was issued more than three years after the invoices were rendered.

The court, however, found that the plea of prescription overlooked a crucial term of the agreement between the parties. The agreement stipulated that payment of the advocate’s invoices would only become due once the defendant attorneys received payment from their own client. This meant that the debt was not due at the time the invoices were issued, but only when the defendant was paid by its client.

According to section 12(1) of the Prescription Act, prescription begins to run as soon as the debt is due. In this matter, the court held that the debt only became due once the defendant received payment from its client. The defendant who needed to prove its prescription defence did not plead or provide any evidence as to when payment was received from the client in respect of the relevant invoices. As a result, the defendant failed to establish when prescription commenced for each invoice. 

This judgment highlights that, where payment is contractually linked to a future event such as receipt of funds from a third-party prescription will only start running from the date that event occurs. Parties seeking to rely on prescription must be able to show precisely when the debt became due, or their special defence is likely to fail.

Mudau v Brian Ramaboa Incorporated and Another (049420/2023) [2025] ZAGPPHC 628 (18 June 2025)