civil law

debt help for women

Benjamin Franklin said: “Better to go to bed without dinner than to rise in debt.” However, debt is not something we can all avoid.

Prescription of a Debt: What does it mean? Part 1:

The Prescription Act; No 68 of 1969; provides in Chapter III for the extinction of debt by prescription.

What does this mean?

A debt is extinguished by prescription after the lapse of the period which applies in respect of that particular type of debt. This means that after that period the debt cannot be revived even under the provisions of the Act relating to the interruption of prescription by the acknowledgment of liability; unless that new acknowledgment amounts to a new undertaking altogether to pay; which novates the old prescribed debt and amounts to a completely new debt and cause of action.

An interesting aside is that no court in terms of section 17 of the Act will of its own accord (mero motu) rely on or raise prescription and if that is your defence to the claim you have to raise the issue of prescription of the debt yourself in your pleadings and papers filed with the court.

Prescription, therefore, has the legal effect of extinguishing a debt. Most debts prescribe after three (3) years from the date that they became due. A “debt” means anything that is owed or due to eg money, goods or services which one person is under an obligation to pay or render to another person. It is not just a debt in monetary terms. It includes a debt due to the State in general and also a debt having a statutory origin.

The party to an action alleging prescription must raise it in his pleadings (court papers) and also prove the date of the inception of the period of prescription. That means that the debt must, on that date, be immediately claimable by the creditor from the debtor and also be one in which the debtor is obliged immediately to perform and pay the debt.

In terms of section 12(3) of the Act; a debt is not deemed to be due until the creditor has knowledge of the identity of the debtor; and of all the facts upon which the debt arises; provided that the creditor is deemed to such knowledge if he could have acquired it by exercising reasonable care and diligence. Since an amendment to the Act in 1984; there is now no distinction, any longer, between a debt due in terms of a contract and one due in delict. It is therefore for a party raising prescription as a defence to prove the date upon which the creditor had knowledge of the identity of the debtor; and the date on which the creditor had knowledge of the facts from which and upon which the debt arose on the date or that he could have known and acquired the relevant knowledge had he exercised reasonable care.

The general rule is that a debt prescribes after three (3) years.

There are exceptions eg Mortgage Bonds, judgment debts, debts for taxes and levies and certain debts owed to the State. These debts are governed by other legislation which specifically overrides the provisions of the Prescription Act. In general however and for our purposes, in most instances, three (3) years is the extinctive prescription period applicable to almost all debts that we deal with on a daily basis in our lives.

For interest sake judgments debts prescribe only after 30 years and debts to the State after 15 years.

The prescription may be delayed by an acknowledgement of liability by the debtor during the three year period or when a summons is issued and served. In these circumstances; prescription then begins to run again from that new date being the date of the acknowledgement or the date of service of the summons. Section 13 of the Act sets out the circumstances in which and when the prescription is interrupted. If the creditor relies on one or other of these circumstances, the creditor must prove the interruption of prescription either by proving an express or tacit, implied acknowledgement of liability by the debtor; or by proving the service on the debtor of a court process whereby the creditor claims payment of performance of the debt.

If a creditor alleges that prescription has been interrupted or delayed; it is for the creditor to prove this fact.

In our next blog, we will look at the practical aspects of prescription and how to deal with collection agents and others when the claim has prescribed in law and fact.

We reiterate that if you are wanting to enforce your legal rights and/or when someone demands money from you; it is always wise to first get proper, professional legal advice before you do anything else. You need to know exactly where you stand.

If you have a query regarding a prescribed debt; please contact us at The Legal Advice Office direct and/or our legal consultant, Hugh, as soon as possible for obtaining proper, professional legal advice.

Hugh’s telephone numbers are 082-0932304 (preferred) or 028-3162832, where you can leave a message if he is unavailable. You can also send us an email to This email address is being protected from spambots. You need JavaScript enabled to view it. by clicking on the BUTTON on the right side.  Hugh  was previously a practising attorney and has 20 years practical experience in the field.

Again; please visit our website if you need any help, legal advice or legal services at www.legaladviceoffice.co.za or send an email to one of our email addresses; either This email address is being protected from spambots. You need JavaScript enabled to view it. or This email address is being protected from spambots. You need JavaScript enabled to view it. and we will revert within 48 hours.

Thank you.

The Legal Advice Office Team.

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Legal Advice Office

South Africa

Kandelaar Street, Vermont, Hermanus
Phone: +27 (028) 316 2832
Email: info@legaladviceoffice.co.za

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