Tag archives: Prescription

The tussle between non-payment of contributions and the application of prescription

By Amina Yuda on February 21, 2023 Posted in General

In 2022, in a decision handed down by the KwaZulu Natal High Court, held in Pietermaritzburg it was made clear that the failure by a pension fund to timeously collect arrear pension contributions from recalcitrant employers, will result in the fund not having a claim against the employer where the defence of prescription is raised … Continue reading

Prescription of insurance claim

By Donald Dinnie on July 26, 2022 Posted in Insurance

In this judgment, the policyholder unsuccessfully argued that the Prescription Act did not apply because the insurer was confined to the time-bar clause in the policy which provided for a period of prescription from the date of the rejection of the claim and because no rejection was ever issued, the clause could not be invoked. … Continue reading

Prescription runs from date of acceptance of repudiation of a contract

By Patrick Bracher (ZA) on February 2, 2022 Posted in Insurance

The Supreme Court of Appeal held that where one party to a contract repudiates the contract by expressing an intention not to be bound by their obligations, extinctive prescription to defeat a claim for damages or performance runs from the date that the other party accepts the repudiation and cancels the contract. A contract between … Continue reading

A judgment with a 30 year prescription period includes a maintenance order

By Patrick Bracher (ZA) on January 27, 2022 Posted in General

The Supreme Court of Appeal, not surprisingly, found that a maintenance order made by a court is subject to a 30 year prescription period because it is a “judgment debt” for the purposes of section 11(a)(ii) of the Prescription Act of 1969. The appellant husband had an unpaid maintenance debt of over R3.5 million as a … Continue reading

The law does not require impossibilities and its effect on prescription

By Patrick Bracher (ZA) on December 17, 2021 Posted in General, Insurance

In finding that the Road Accident Fund Act three year extinctive prescription period (with some exceptions) did not apply to the claimant who had become a person of unsound mind because of the motor accident, the Constitutional Court applied the impossibility principle (lex non cogit ad impossibilia). It was held that the claimant’s action had … Continue reading

When does prescription start running in a malicious proceedings claim?

By Donald Dinnie on February 1, 2021 Posted in General

In a recent judgment the supreme court of appeal, unsurprisingly, reaffirmed that a favourable result of the prosecution for the claimant remains a requirement for a complete cause of action in a claim based on malicious proceedings. In terms of the Prescription Act a debt is due, owing and payable when the creditor, that is … Continue reading

When does a healthcare practitioner’s claim for damages for malicious HPCSA proceedings prescribe?

By Deniro Pillay (ZA) and Siyabonga Mathe on November 16, 2020 Posted in General

A healthcare practitioner, who is the subject of malicious HPCSA proceedings, may institute a damages claim for malicious prosecution against the complainant who initiated the proceedings within three years from the date the HPCSA informs the practitioner of its decision to dismiss the complaint. The claim only arises, and prescription starts to run, from the … Continue reading

Tacit acknowledgement of a debt: payments and queries interrupts prescription

By Candice Grieve and Maxine Rodrigues on September 21, 2020 Posted in General

The Supreme Court of Appeal (SCA) in Investec Bank Limited v Erf 436 Elandspoort (Pty) Ltd and Others gave useful examples of what constitutes a tacit acknowledgement of liability (which interrupts the running of prescription of a debt in terms of section 14 of the Prescription Act 1969). The case involved a debt related to … Continue reading

Condonation for late notice of intention to sue

By Keaoleboga Molefe on July 28, 2020 Posted in General

Claimants who sue the State often have to apply for condonation for late notice, because the State must be notified of an intention to sue within 6 months of an incident occurring, and many claimants are unaware of this special time restriction. In Ndlovu v Member of the Executive Council for Police, Roads and Transport: … Continue reading

Condonation granted where no prejudice proved

By Rethabile Shabalala and Donald Dinnie on April 24, 2020 Posted in General

A plaintiff who suffers damage usually has 3 years within which to sue the defendant. But a claim against the State must be notified within 6 months of an incident occurring. This notification comes before the summons is served. If a claim is not notified within this time period (set out in the Institution of … Continue reading

Service of summons on one surety does not interrupt running of prescription for other sureties

By Siyabonga Mathe on April 22, 2020 Posted in General

The service of a summons on one surety does not interrupt the running of prescription in favour of a co-surety. Although the surety undertakes to be liable if the principal debtor does not pay the debt, the surety does not become a co-debtor with the principal debtor, nor does the surety become a co-debtor with … Continue reading

Offers of settlement and time-bars in insurance policies

By Donald Dinnie on January 8, 2020 Posted in Insurance

In South Africa, for example, under the Policyholder Protection Rules or the Short-term Ombud’s Rules the running of statutory prescription and time-bar limitation periods provided for in an insurance policy may be suspended while a dispute is resolved. German law also provides for some circumstances in which the limitation period in an insurance coverage dispute … Continue reading

When does a claim under a liability policy prescribe?

By Donald Dinnie on December 11, 2019 Posted in Insurance

A claim for indemnification under a liability insurance contract only arises when liability to a third party for a certain amount has been established. For purposes of prescription, the debt becomes due when the insured is under legal liability to pay a fixed and determined sum of money. Until then a ‘claim’ for indemnification under … Continue reading

Prescription of debt for restitution after contract cancelled

By Patrick Bracher (ZA) on August 21, 2019 Posted in General

Where one party cancels a contract because of repudiation by the other party there is an obligation to make restitution and to pay money or deliver assets which were received as performance under the cancelled contract. The cancellation gives rise to a personal obligation to pay or deliver what was received. The same would apply … Continue reading

Extinctive prescription: When is a debt due?

By Patrick Bracher (ZA) on December 7, 2018 Posted in General

The Constitutional Court reaffirmed that a debt becomes due when it is immediately claimable or recoverable. Where the purchase price was not receivable under the Alienation of Land Act 1981 until the contract was recorded at the Deeds Office, prescription did not start to run until the recording of the contract took place. It is … Continue reading

Enforce your arbitration award right away or the debt may prescribe

By Todd Petersen and Daniel McConnell on May 31, 2018 Posted in General

An arbitration award does not create a new debt for purposes of prescription. Parties who wait more than one year to have an arbitration award made an order of court with a 30 year prescription period may find that, when they attempt to enforce the award, the underlying debt has prescribed. Parties should deal expressly … Continue reading

Municipality’s right to reclaim undeveloped property prescribes after three years

By Patrick Bracher (ZA) on October 18, 2017 Posted in General

The appellant municipality sold vacant immovable property to the respondent company subject to the condition that if buildings of a certain value were not erected on the property within three years from the date of sale, ownership of the property reverted to the municipality which could demand retransfer. It was held that because the municipality … Continue reading

Thirty year prescription on debt secured by a mortgage when summons issued

By Patrick Bracher (ZA) on October 17, 2017 Posted in General

A lender relied on a 30 year extinctive prescription period applicable to ‘any debts secured by a mortgage bond’ under section 11(a)(i) of the Prescription Action 1969 but failed because the mortgage bond was not valid at the time summons was issued. The lender sued the principal debtor and a number of sureties based on a … Continue reading

Acknowledging indebtedness in without prejudice discussions interrupts prescription

By Patrick Bracher (ZA) on July 30, 2017 Posted in General

An acknowledgement of debt made by a debtor to a creditor in the course of without prejudice negotiations will interrupt the running of extinctive prescription unless this consequence is excluded from the discussions. In KLD Residential CC v Empire Earth Investments 17, the Supreme Court of Appeal was asked to strike a balance between the public … Continue reading

The once-and-for-all rule for delictual damages

By Patrick Bracher (ZA) on April 10, 2017 Posted in General

A person who claims for damages sustained as a result of injuries negligently caused by someone else has a single, indivisible cause of action and must sue for all damages in one claim. This proposition was reasserted in the context of a prescription allegation regarding a Road Accident Fund Act claim. The RAF Act only … Continue reading

Section 126B(1)(b) of the National Credit Act is not retrospective

By Patrick Bracher (ZA) on February 13, 2017 Posted in General

Section 126B which prohibits dealing in a debt under a credit agreement extinguished by prescription, and allows the consumer to raise the defence of prescription (even though the consumer agreed to revive a prescribed debt without being aware of the prescription defence) came into force on 13 March 2015. Before section 126B was enacted an agreement … Continue reading

When a debt becomes due: prescription of loans

By Rachel Mazower and Andrew Strachan on November 9, 2016 Posted in General

A loan becomes due (claimable) from the moment that it is lent to the borrower, unless the parties specifically agree otherwise. In a September 2016 judgment the Supreme Court of Appeal held that a loan that was ‘due and payable to the lender within 30 days from the date of delivery of the lender’s written … Continue reading

Constitutional Court considers the meaning of debt in relation to prescription

By Craig Woolley on June 8, 2016 Posted in General

The Constitutional Court recently considered the meaning of the word ‘debt’ in relation to the Prescription Act and found that the word must be given a meaning that is least intrusive on the constitutional right to access to courts. In Makate v Vodacom (Pty) Ltd the applicant instituted action against Vodacom to compel them to … Continue reading

Acceleration clauses and prescription

By Aslam Moosajee (ZA) on June 3, 2016 Posted in Banking

If a loan is repayable in instalments and includes an acceleration clause that if the debtor defaults on paying any instalment, the creditor is entitled on notice to terminate the loan agreement and claim the full balance outstanding, the debt ordinarily only prescribes three years after the date of the notice claiming the full outstanding … Continue reading