Prescription Act 68 of 1969
Prescription periods under the Prescription Act
6 min read
Extinctive prescription under the Prescription Act 68 of 1969 does not merely bar the remedy; it extinguishes the debt. A claim that has prescribed is gone, and the court will not revive it. The periods are short, the starting date is often arguable, and the events that interrupt the running of prescription are narrower than clients tend to assume.
The periods
| Period | Applies to |
|---|---|
| Three years | Any debt not covered by a longer period — contractual claims, delictual claims, and most of what an attorney sees. |
| Six years | A debt arising from a bill of exchange or other negotiable instrument, or from a notarial contract, unless a longer period applies. |
| Fifteen years | A debt owed to the State in respect of a loan of money, a share of profits from mining, or the sale or lease of land by the State. |
| Thirty years | A debt secured by mortgage bond, a judgment debt, a debt in respect of taxation, and a debt owed to the State for mineral rights or similar. |
When the period starts
Prescription begins to run as soon as the debt is due. Section 12(3) qualifies that: a debt is not deemed due until the creditor knows the identity of the debtor and the facts from which the debt arises — and the creditor is deemed to have that knowledge if it could have been acquired by exercising reasonable care.
That deeming provision does most of the work in practice. A creditor who could reasonably have discovered the claim earlier does not get a later starting date by not looking. Where the facts only emerged later, the date the debt became due is a question of evidence, and the safe course is to calculate from the earliest date a court might accept.
Interruption, and what does not interrupt
Prescription is interrupted by an express or tacit acknowledgement of liability by the debtor, and by the service on the debtor of a process claiming payment of the debt. Where it is interrupted by acknowledgement, it starts running afresh from that date.
What does not interrupt it is a long list, and it includes most of what feels like progress: a letter of demand, a without-prejudice offer, negotiations however protracted, an internal complaint, or a claim lodged with an ombud. Issuing summons is not enough either — the process must be served. A summons issued on the last day and served a week later has not interrupted anything.
Road Accident Fund claims
RAF claims run on the Road Accident Fund Act and its regulations rather than on the general periods, and the two commonly quoted numbers are often mixed up.
| Claim | Period |
|---|---|
| Identified driver or owner | Three years from the date of the accident, for lodging the claim. |
| Unidentified driver — a hit and run | Two years from the date of the accident, under regulation 2. Not three. |
| Serving summons on a lodged claim | Five years from the date of the accident, under section 23(3), and no earlier than 120 days after lodgement. |
The five-year figure is not a prescription period for the claim itself. It is the outer date by which summons must be served on a claim that was lodged in time. Treating it as the deadline for a hit-and-run claim — which has two years, not five — is a way to lose a matter that was never in difficulty.
Minors, the mentally incapacitated, and delay
Section 13 delays the completion of prescription in defined circumstances — among them where the creditor is a minor, is insane or is under curatorship, where the debtor is outside the Republic, or where the creditor and debtor are married to each other. The mechanism is not a pause: prescription does not complete before a year has passed after the impediment ceases. For a minor, that ordinarily means a year after majority.
A note on the arithmetic
Prescription periods run in calendar years, not court days. A three-year period from 15 March runs to 15 March three years later, and no weekend or public holiday shortens it. Where the anniversary does not exist — the 29th of February — the period is taken to the last day of that month.
Choose the kind of debt and the date it became due; the RAF periods are listed separately.
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