South Africa: Beware Of The Dangers Of Prescription

Last Updated: 6 December 2005
Article by Eric Levenstein and Ryan Tucker

The Prescription Act 68 of 1969 ("the Act"), provides for four extinctive prescriptive periods:

Thirty years in respect of –

  • any debt secured by a mortgage bond;
  • any judgment debt;
  • any debt in respect of any taxation;
  • certain debts owed to the state in respect of any share of profits, royalties or any similar consideration payable in respect of rights to mine minerals.

Fifteen years in respect of any debt owed to the State and arising out of a loan of money or sale or lease of land by the State to a debtor.

Six years in respect of any debt arising from a negotiable instrument such as a cheque or from a notarial contract.

Three years in respect of any other debt, except where stipulated otherwise by another Act of Parliament.

When does extinctive prescription commence?

According to section 12(1) of the Act, extinctive prescription begins to run as soon as the debt is due.

The courts have held that a debt includes any liability arising from and being due or owing under a contract. A ‘debt’ refers to an obligation to do something, whether by payment of money or by delivery of goods and services, or not to do something (Electricity Supply Commission v Stewarts and Lloyds of SA (Pty) Ltd 1981 (3) SA 340 (A)).

Prescription begins to run not necessarily when the debt arises, but only when it becomes due. This has been interpreted to mean, that for prescription to begin running, there has to be a debt in respect of which the debtor is under an obligation to perform immediately. (Deloitte Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman Deutsch (Pty) Ltd 1991 (1) SA 525 (A)). Therefore, a debt is ‘due’ when it is claimable by the creditor and is payable by the debtor. It has furthermore been held that a debt is only due when the creditor’s cause of action is complete. Put differently, the creditor must be in a position to claim payment forthwith, and that the debtor does not have a defence to the claim for immediate payment. The cause of action must be complete at the time summons is served.

The Act provides that if a debtor willfully prevents a creditor from coming to know of the existence of the debt, prescription will not commence to run until the creditor becomes aware of the existence of the debt. A debt is not deemed to be due until the creditor has or ought to have had knowledge of the identity of the debtor, and of the facts from which the debt arises.

Delay in the completion of extinctive prescription

In certain circumstances listed in section 13(1) of the Act, the prescriptive period will be delayed and shall not be completed before a year has elapsed after the day on which the impediment has ceased to exist. Examples of the impediments are the debt is the subject of a dispute submitted to arbitration or the debtor is outside the Republic.

When is extinctive prescription interrupted?

Extinctive prescription may be interrupted in two ways, namely, by the express or tacit acknowledgement of liability by the debtor or by means of judicial interruption.

Interruption by acknowledgement of liability

Acknowledgement of liability by the debtor may be express or tacit. (section 14(1) of the Act) The same examples of acknowledgements of liability at common law will apply to the Act. (Cape Town Municipality v Allie NO 1981 (2) SA 1 (C)). Where any part of the debt has been acknowledged, then such acknowledgment ipso facto interrupts the running of prescription of the whole debt.

One must look to the intention of the debtor to decide if there has been an acknowledgment of liability. To interrupt prescription, an acknowledgement by the debtor must amount to an admission that the debt was in existence and that he is liable for it. The test is - did the debtor intend to admit that the debt was in existence and that he is liable for it? (Petzer v Radford (Pty) Ltd 1953 (4) SA 314 (N)). An admission that the debtor has incurred the obligation, coupled with an assertion that the obligation has been extinguished, will not interrupt prescription.

When considering a tacit acknowledgement of liability, the court will look at both the words of the debtor along with his conduct to assess whether an acknowledgement of liability has occurred.

Examples of acknowledgements of liability are: part payment of the debt; payment of interest; giving of security; admission of liability in any other manner. Entering into negotiations does not amount to an acknowledgement of liability.

If the running of prescription is interrupted by an acknowledgement of liability, prescription commences to run afresh from the day on which the interruption takes place, or, if at the time of the interruption or any time thereafter, the parties postpone the due date of the debt, on the date upon which the debt again becomes due. (s14(2) of the Act)

Judicial interruption of prescription

In terms of the Act, the running of prescription will be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt. In Du Bruyn v Joubert 1982 (4) SA 691 (W), it was said that in order effectively to interrupt prescription, there must at least be (a) a right enforceable against the debtor in respect of which extinctive prescription is running, and (b) a process served on the debtor instituting legal proceedings for the enforcement of that very right or substantially the same right.

Essentially, therefore, section 15(1) of the Act requires the service of a process by which legal proceedings are effectively commenced for the payment of the debt in question.

Where a plaintiff wishes to amend its claim, it will be precluded from doing so by prescription if the new claim is based upon a new cause of action and the relevant prescriptive period has run, but not if it was part of the original cause of action. The question is whether an amendment relies on a totally new set of facts to substantiate the claim or whether the facts are substantially the same as those relied on in the original summons?

An application for a winding up order is not a legal proceeding for the enforcement of a right relating to the applicant’s debt, and it is not a process whereby the applicant claims payment of that debt. The service of such an application does not therefore have the effect of interrupting the running of prescription of a debt.

For the initiation of legal process to have the effect of interrupting prescription, the creditor must prosecute his claim until final judgment and must not abandon the judgment. Additionally, if the judgment is set aside for whatever reason, interruption of prescription will not take place.

Extinctive prescription limits the time within which to launch a claim, but once the action has been instituted, its continuance is governed by the rules of court.

The documents that initiate legal process include: a summons; a notice of motion; a petition; a rule nisi; a pleading in reconvention; a third party notice referred to in the rules of court and any document whereby legal proceedings are commenced. A statement of claim in arbitration proceedings would fall within the ambit of the above.

For prescription to be interrupted in terms of section 15, three requirements must be present:

  1. There must be a process.
  2. The process must be served on the debtor.
  3. By that process, the creditor must claim payment of the debt.

In summary, the Act may have a significant impact on the collectability of a company's debtor’s book and in respect of any claim that such party may have against a third party. Clients should be wary of leaving claims on the back burner when they run the real risk of such claims prescribing on the basis set out in the Act.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions