The Prescription Act 68 of 1969 and The Law of Delict

In South African jurisprudence, prescription is governed by the Prescription Act 68 of 1969 (“the Act”). This concept plays a major role in determining which debts remain due and enforceable. The effect of prescription is that a debtor is no longer legally required to repay an old debt because of the passage of time, in terms of time frames that are set out per category of debts in the Act.  The debts are naturally enforceable; therefore, if the debtor pays the debts, the creditor is entitled to keep such monies. However, the debts are no longer legally enforceable and any claim in court can be defended with a special plea of prescription. This article evaluates when the prescription period starts to run on delictual claims, which, by their nature, as explained below, differ from other forms of civil claims.

Section 12, read together with Section  11(d) of the Act, provides that a debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises, and that the period of prescription shall be, except if otherwise stipulated in the Act or another Act of Parliament, three years. The law of delict regulates wrongs and offers redress for injury or damage caused by the carelessness, wilful misbehaviour, or wrongdoing of another party. For a party to be successful in proving a delictual claim, one needs to prove inter alia, the following elements: wrongfulness of the conduct, that the wrongful conduct caused harm, and that one suffered damages as a result of the wrongful conduct.

In the case of Zwane v Minister of Justice and Constitutional Development & FNB [2023] ZAGPPHC 214; 74773/2014, the Plaintiff (the deceased’s mother) sued the Defendants for damages suffered as a result of their respective wrongful and/or negligent conducts. The First Defendant was fraudulently approached by deceased’s wife (the wife) with an application for her to be appointed as an executrix of her late husband’s estate. Upon her appointment, she withdrew monies from the deceased’s bank account held with the Second Defendant amounting to the sum of R760 570. The aforementioned sum was withdrawn on 2 November 2009. On 15 January 2010, after learning about the appointment of the wife as the executrix of her son’s late estate, the Plaintiff opened an internal fraud case with the First Defendant, accusing the wife for unlawfully transferring the monies held with FNB account to a Nedbank account.

‘The parties agree that the Plaintiff is the lawful executrix of the late estate. There is also no dispute that a sum of R760 570 was unlawfully withdrawn from the deceased’s bank account held with the Second Defendant during or about 2 November 2009’[1]. The investigation report was delivered in September 2012 and the First Defendant found that the letter of executorship issued to the person purporting to be the Plaintiff was fraudulent, it is unclear how the Plaintiff got sight of this internal report as it was not sent to her[2].

On or about 24 November 2014, the Plaintiff issued and caused summons to be served in an action for damages against the Defendants. The only question before the Court was whether the claim against the Defendants has prescribed or not. The Defendants argue that the debt, as of 15 January 2010, became due as envisaged in terms of Section 12 of the Act, as the Plaintiff had knowledge, or alternatively, is deemed to have knowledge on that date of the identity of the debtors and of the facts from which the debt arose. A period of 4 years and 10 months thus passed before the Plaintiff caused summons to be served, and as such, the claim became extinguished by prescription in terms of Section 10 read with Section 11(d) of the Act.

The Plaintiff argued that her claim was based on the Aquillian action (delictual liability). As such, wrongful conduct, negligence and causation are essential elements of the cause of action that must be proven. Until she had knowledge of the facts that would satisfy the aforementioned requirements, there were not enough facts to render the debt due. These facts only came to her knowledge when she viewed the investigation report received from the First Defendant, which means that the debt only became due in September 2012, the claim thus has not prescribed.

The Court held that the Plaintiff knew that the deceased held a bank account with the Second Defendant and that the monies were paid to the Nedbank account without her authorisation, and that the deceased estate has suffered a loss as result thereof, on or before 15 January 2010. ‘Thus, facts material to “unlawfulness” and “fault”, as far as the Second Defendant is concerned, was in the knowledge of the Plaintiff, or at the very least can be deemed to be in the knowledge of the Plaintiff’[3]. Accordingly, the Court upheld the Second Defendant’s Special Plea of prescription with costs.

The Court further held that the Plaintiff took all the reasonable actions a person in her situation could have taken. The Plaintiff appointed a lawyer to assist her, she sought copies of letters of executorship from the Master’s office, and she cooperated with the investigating office who investigated the fraud case. This demonstrates that she persisted in perusing her claim. Upon receipt of the investigation report, she thereafter issued summons within the prescribed period. ‘To force the Plaintiff to institute action before she had knowledge of where the letters emanated from would expect of her to institute the claim prematurely, without all the necessary facts’[4]. Accordingly, the Court dismissed the First Defendant’s Special Plea of prescription with costs.

In Truter v Deyse [2006] ZASCA, the Court held that the debt became due when the plaintiff obtained a medical opinion that provided that the harm suffered by the plaintiff was due to the negligence of the defendants. The said medical opinion was received by the plaintiff after repeated eye surgery. This was due to the fact that the plaintiff acquired a complete cause of action upon receipt of the medical opinion[5].

Under the law of delict, one need to satisfy all the required elements of the law of delict in order to prove any potential delictual claim against any person. In terms of the Act, the creditor must have knowledge of the identity of the debtor/s and full knowledge of the facts from which the debt arises from. Once the above has been established, the prescription period will start running accordingly and will be regulated in terms of the Act.

Therefore, the operation of prescription in respect of delictual claims may differ from prescription of ordinary debts, where it is evident from the outset when claims are due and payable. To prove prescription has not run on delictual claims, factual disputes may arise regarding, for example, when a plaintiff became aware of negligence from which a claim arose. If you are uncertain regarding whether your claim is legally enforceable, contact our offices for world class legal advice.

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