What is prescription?

Prescription is a legal term which refers to a time period available to a person to enforce a legal right.

There are different prescription periods for different claims or offences governed by different laws. This article will focus on three different instances:

  1. A third party claim against the Road Accident Fund,
  2. a claim for debt; and
  3. prosecution in a sexual offence case.

Third Party Claim

If a person sustained injuries due to a car accident, then he or she is given three years from the date when the cause of action arose (in other words when the accident occurred and the injuries sustained) to claim compensation from the Road Accident Fund.[1] Section 23(2) of the Road Accident Fund[2] provides that prescription does not run against a minor (a person below the age of 18), a person detained as a patient in terms of mental-health legislation, or persons under curatorship. Say for instance Susan was in an accident at the age of 14, the prescription period will be suspended until she reaches the age of 18. If she did not have a parent or legal guardian who instituted a claim on her behalf against the RAF, she will have 3 years from her 18th birthday to do so. A person attains capacity to litigate at the age of 18, but during the time that the person is a minor or infant they cannot be a party to a law suit unless their guardian acts on their behalf.

A claim for outstanding debt

In the event where the claim is for an outstanding debt, the creditor is given three years[3] to claim the debt.[4] In this case prescription starts running from the date the debt is due[5]. Prescription is interrupted as soon as a legal process is served on the debtor[6]. A legal process includes a petition, a notice of motion, a rule nisi, a pleading in reconvention, a 3rd party notice referred to in any rule of court, and any document whereby legal proceedings are commenced[7]. In most cases the creditor will issue and serve a summons which will be the “legal process” on the debtor to commence legal action. If the debt is in terms of a credit agreement falling under the National Credit Act, the creditor must notify the debtor of the default in writing.[8] This notice has become known as a section 129 notice. A credit provider may only commence legal action, by issuing a summons, after they complied with section 129 of the National Credit Act. Note that the purpose of the section 129 notice is to avoid litigation[9] and it is therefore not a process whereby prescription is interrupted.

Prescription can also be interrupted by an express or tacit acknowledgement of liability by the debtor.[10] For example if the debtor makes a payment towards the debt, it will be interpreted as a tacit acknowledgement of liability and prescription will be interrupted. Prescription shall commence to run afresh from the day on which the interruption takes place[11].

When the claim prescribes the debt is extinguished.[12]

When a debtor passes away the creditor will in most instances have a claim against the debtor’s deceased estate.

Prescription in sexual offences cases

Until last year section 18 of the Criminal Procedure Act imposed a prescription period of 20 years in which to prosecute a sexual offence other than rape. This section was challenged in the High Court by the “Frankel Eight”. The applicants were allegedly sexually assaulted between the ages of 7 and 15 by the late stockbroker Sidney Frankel in the 1970s and 1980s. When they laid charges against Sidney Frankel the Directorate of Public Prosecution declined to prosecute due to the time limit[13]. Judge Claire Hartford found this provision to be unconstitutional and the Constitutional Court confirmed the High Court’s Judgment[14]. Last year, October 2019, the cabinet approved the Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill. The Bill amends section 18 of the Criminal Procedure Act in that it now excludes “any sexual offence in terms of the common law or statute” from the 20 year prescription period.[15] In other words if a person was a victim of a sexual offence he or she is now free to lay charges even if the crime occurred more than 20 years ago.

[1] Section 23(1) of the Road Accident Fund Act 56 of 1996.

[2] Act 56 of 1996.

[3] Certain debt is excluded from this provision. For instance if a debt is secured by a mortgage bond or if judgment was granted the period of prescription is 30 years. See Section 11(a) of the Prescription Act.

[4] Section 11(d) of the Prescription Act 68 of 1969.

[5] Section 12(1) of the Prescription Act 68 of 1969.

[6] Section 15(1) of the Prescription Act 68 of 1969.

[7] Section 15(6) of the Prescription Act 68 of 1969.

[8] Section 129(a) of the National Credit Act 34 of 2005.

[9] Van Heerden and Boraine, The impact of section 129(1)(a) of the National Credit Act on the prescription of credit agreement debt. https://repository.up.ac.za/bitstream/handle/2263/52514/VanHeerden_Impact_2015.pdf?sequence=1&isAllowed=y.

[10] Section 14(1) of the Prescription Act 68 of 1969.

[11] Section 14(2) of the Prescription Act 68 of 1969.

[12] Section 10(1) of the Prescription Act 68 of 1969.

[13] Sunday Times Live https://www.timeslive.co.za/news/south-africa/2018-06-14-victory-for-frankel-8-as-20-year-limit-on-prosecution-for-sexual-assault-ruled-unconstitutional/

[14] Levenstein and Others v Estate of the Late Sidney Lewis Frankel and Others 2018 ZACC 16.

[15] Section 3 of Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Bill.