Topic 15 – Prescription

Prescription of Remedies

 Prescription = effect of passage of time on obligations

 After a certain period, it is NO longer possible to enforce an obligation or debt arising from delict
 According to the Prescription Act of 1969, a delictual debt prescribes (and the delictual action is
thus also extinguished) three years after it originated.
 The period of prescription commences the moment all the elements of a delict are present and
the creditor has knowledge (or ought reasonably to know) of the identity of the wrongdoer and
the facts of the case

Effect of time on obligations

 Prescription Act 68 of 1969
◦ Different types of debt – different prescription periods
◦ Section 11: 3 years (general category)
 Prescription begins to run as soon as the debt is due: moment that a delict occurs (s12(1))
 Cause of Action: all 5 elements of delict (in particular – harm; or “some harm”)
 Truter v Deysel: for purposes of Prescription, “cause of action” meant every fact that the
plaintiff had to prove in order to succeed in his claim

 Once-and-for-All Rule (Oslo Land Corporation v Union Government)

 Continuing wrong – one continuing cause of action (see e.g. Slomowitz v Vereeniging Town
Council)

When is the debt due?

 Section 12(2): Creditor wilfully postpone debtor’s knowledge? Prescription begins to run
once creditor obtains (1) knowledge that the debt exists
 Section 12(3): creditor has, or ought to have had, (2) knowledge of identity of debtor,
(3) facts from which the debt arose.
◦ Debtor acted reasonably to ascertain this information (name and address)? (Gericke
v Sack)

Delay of Prescription

 Section 13(1): Certain circumstances or “impediments”

◦ Prescription would have been completed before or on or within one year after the
day on which the relevant circumstances / impediment has ceased to exist: DELAYS
prescription to one year after the impediment ceased to exist.
◦ ABP 4x4 Motor Dealers (Pty) Ltd v IGI Insurance Co Ltd; Truter v Deysel
◦ p 205 of the textbook: circumstances
 E.g. Debtor outside RSA; debtor is a minor; debtor is manager/director of
creditor (legal entity), etc

Interruption of Prescription
 Judicial Interruption
◦ Section 15(1),(2)-(6): Legally effective service of process (claim payment of debt)
◦ Separate causes of action between debtor & creditor: dealt with accordingly (read
with s15(5))
 ◦ Section 15(2) – Interruption deemed not to have taken place if creditor unsuccessful
in terms of particular service of process
 Section 15(4) – prescription runs (anew) from date of judgment)

 Interruption through acknowledgement of liability

◦ Not defined/described in s14(1): thus = question of fact
◦ NB: what was the intention of the debtor?
◦ If acknowledgement for purposes of s14(1): prescription runs anew from moment of
acknowledgement / when debt becomes due (agreement between parties)

Waiver of PrescriptionAgreement to waive prescription?

ONLY if compelling circumstances...

Prescription & the Constitution

 Prior to 1994: special notice and limitation periods applicable in cases against the state
 Mohlomi v Minister of Defence [s113(1), Defence Act]: right to access to courts violated
 Issue now regulated by The Institution of Legal Proceedings against Certain Organs of State
Act 40 of 2002

Oslo Land Co Ltd v The Union Government

o The plaintiff issued summons for losses suffered as a result of the defendant spraying locust
poison on the plaintiff’s farm. Cattle had died after being poisoned some three years before the
action was instituted. Other cattle died within the intervening period. In addition, the plaintiff’s
farm had been rendered unfit for pastoral use for at least ten years, and he had to sell his
surviving cattle at a loss.
o Faced with the problem of prescription, the plaintiff alleged that a separate cause of action
arose each time an animal died.
o The court rejected this contention, holding that a right of action for damages arose immediately
after the spraying. This included the right to sue for prospective loss, and prescription therefore
began running as soon as the loss had been suffered.

Slomowitz v Vereeniging Town Council

o Summons was served for the wrongful closure of a road some four years after the event. The
respondent contended that the claim was barred because of a local government ordinance
which required that such action be brought within six months of its cause of action arising.
o The court dismissed the respondent’s contention. Since the road had been reopened only three
months before summons was served, the plaintiff was, by reason of the continuance of the
wrongful act of keeping the road closed, vested with a cause of action against the defendant
throughout the period that the road remained closed.