Prescription

Definitions

1. Prescription Act 68 of 1969 ( the Act) – South African law that reinforce rules governing prescription
2. Servitude- a registered right over immovable property that allows an individual to use and enjoy the rights of that property without the change of ownership.
3. Praedial servitude –  is a type of real right in property law that attaches to land rather than an individual, meaning it benefits one property (dominant land) and burdens another (servient land) permanently or for a specified period.

Introduction

Prescription is a fundamental legal concept where in rights or obligations are acquired and/or extinguished through progression of time. Which simply mean that rights and responsibilities can either arise or be lost due to the passage of time. South Africa is being guarded by different laws  that apply to different scenarios as far as the prescription concept is concerned which those are stipulated in the Prescription Act 68 of 1969 and its ante act Prescription Act 18 of 1943 . Its primary objective is to set out time periods that monitors the allowable and just time for the institution of claims, ensuring that debts and legal claims are brought in within a specified time period. This aims at protecting creditors by allowing the liberty to have timeframes within which they must act to enforce their rights, while again providing a safeguard for debtors by preventing the automatic extinguishment of debts after a certain period.

The prescription period commences as soon as the debt is due, and the creditor can identify the debtor and the facts from which the debt arose.

Type of prescription

Acquisitive Prescription

This is a doctrine that allows a person to become the lawful owner of property by possessing it continuously for a period as prescribed by the law, even without the consent by the  original owner or transfer of title

Extinctive Prescription

When an individual loses the ability to enforce a right or claim because a certain period has passed without exercising that right.

Acquisition of owner by prescription.

As per the Act, a person shall by prescription become the owner of an object or thing which they have had possession of openly and as if they were the owner thereof for an uninterrupted period of thirty years (30), this legal regime, it extend to include a period which, together with any periods for which such object  was so possessed by their predecessors in title, constitutes an uninterrupted period of thirty years. [1] This does not include involuntary loss of possession.

Acquisition an extinction of servitudes by prescription.

A person shall acquire a servitude by prescription if they have had openly and as though they were entitled to do so, exercised the rights and powers which a person who has a right to such servitude is entitled to exercise, for an uninterrupted period of thirty years or, in the case of a praedial servitude, for a period which, together with any periods for which such rights and powers were so exercised by his predecessors in title, constitutes an uninterrupted period of thirty years. The provisions of this Chapter shall not apply to public servitudes.[2]

Prescription of Debts

A debt shall be extinguished by prescription after the lapse of the period which in terms of the relevant law applies in respect of the prescription of such debt.  By the prescription of a principal debt a subsidiary debt which arose from such principal debt shall also be extinguished by prescription. However, payment by the debtor of a debt after it has been extinguished by prescription in terms of either of the said subsections, shall be regarded as payment of a debt.

Periods of prescription.

Periods of prescription of debts have two segments, prescription period for non-government claims and prescription for government claims.

In non-government claims

• Debts secured by a mortgage bond and debts in terms of a judgement delivered by a court and they prescribed in 30 (thirty) years.
• Debt relating to a negotiable instrument like a promissory note they prescribed in 6 years
• Debt arising from delict or contract, or any other liability like Road Accident Fund they prescribe in 3(three) years.

However, in delictual claims, specifically in personal injury claim that arise from bodily injury from negligent driving of a motor vehicle accident, do not have the standard prescription period of 3 (three) years.  Claims that gets effect from a negligent driving  with an identified driver, such matters prescribe in 3(three)  years from the date of accident, and the victim has up to 2 (two) years to brings the summons against the insurance Road Accident Fund once the claim is lodged.

Claims that get effect from a negligent driving, and the owner or the driver of such motor vehicle is unidentified, such matters prescribe in 2 (two) years from the date of accident, and the victim has up to 3( three)  years to bring the summons against the insurance Road Accident Fund once the claim is lodged.

Claims for compensation for injuries suffered during the course of employment and consequently such claims are not reported, and claims for a contribution from the joint wrongdoer they prescribe within 12 (twelve) months from the date of the accident occurring of after the judgement was granted.

Claims that are brought against a legal practitioner for theft should be brought before the council within 3 (three)  months after a person became aware of this theft.  

In government claims

• Debt in respect of tax or levies under any law and debt owed to the State for profits in respect of the right to mine substances they prescribed in 30 (thirthy) years.
• Debt owed to the State for money loaned or a sale or lease of land, by the State to the debtor they prescribe in 15 (fifteen) years
• Debt against State Organs arising from delict or contract, or any other liability they prescribe in 3 (three) years.
• Notice of intended legal proceedings against the State must be served on the State Organ within six months from the date on which the debt became due as they prescribe in 6 (six) months.

Prescription period be delayed

The prescription period may be delayed if creditor is a minor, under curatorship, mentally incapable, debtor is outside the Republic South Africa and if both  creditor and the debtor are married to one another, partners and the debt arose from a partnership agreement, debtor is a member of the creditor, debt is the object of a dispute in an arbitration, executor of a deceased estate has not yet been appointed.

This, however,  is a different scope from when prescription is interrupted. Prescription is interrupted  indefinite by summons, another way can be by acknowledgement of debt by the debtor, this however does not interrupt the prescription indefinite like summons do, but the refresh the prescription period.

Conclusion

In conclusion, the doctrine of prescription serves as a critical mechanism in balancing the rights of claimants with the need for legal certainty. By imposing defined time limits within which claims must be instituted, the Prescription Act 68 of 1969 ensures that disputes are resolved while evidence remains fresh and parties are not indefinitely burdened by potential litigation. Ultimately, the timely enforcement of rights is not merely a procedural requirement but a substantive safeguard for the integrity of the legal system.

Bibliography

Legislation

1. Prescription Act 68 of 1969
2. Prescription Act 18 of 1943

Website and Online sources

3. Leza Legal Wise : Prescription , July 2022

[1] Prescription Act 68 of 1969

[2] Prescription Act 68 of 1969