You remember the saying that goes “rather late than never” ? Well, in law we rather suggest not being late at all…
Time in and again we receive clients that had the chance of instituting legal proceedings against a debtor, only to find that their claim has prescribed in law.

The prescription of a debt is regulated by the Prescription Act 68 of 1969 (hereinafter referred to as the Act). 

The Act provides certain time periods in which a person has to lay claim for various types of debts. 

Section 11(a) of the Act provides a 30 year prescription period of debts in terms of a mortgage bond, judgment debt, debts in respect of taxation and a debt owed to the State under certain circumstances. 
Section 11(b) of the Act provides a 15 year prescription period towards debts owed to the State involving the loaning of money from the State and/or the sale or leasing of land by the state to another person.

Section 11(c) of the Act provides a prescription period of 6 years for debts arising out of notarial agreements and a bill of exchange. 
Finally and probably the most common period seen in practice, is the 3 year prescription period in terms of Section 11(d) of the Act. 

This 3 year period provides for any type of debt, other than the debts stated above.
It is important to note that section 12 (1) of the Act provides that the period for the debts as stated above only starts commencing once the debt is due to the creditor.

Furthermore section 12(2) of the Act provides that a period of prescription will not start commencing under circumstances where a debtor intentionally withholds the awareness of a debt to a creditor. In such a situation the prescription period of the debt will only start commencing when the creditor who is entitled to the debt comes to know about the debt.

The Act also makes provision for the interruption of a prescription period under Section 14. 

Should a debtor at any time whilst the prescription period is running and while the debt is due, make any “expressed” or “tacit” acknowledgement of their liability towards the creditor for the payment of a debt, the whole prescription period will start running from a new again and from the date of the acknowledgement from the debtor.

It is of the utmost importance that should you as a creditor be either doubtful of the existence of a debt due to you, or whether or not you have a claim against a debtor which you are aware about, that you should  proceed to seek legal help as soon as you become aware of your possible claim. Let us turn the “rather late than never” into “rather safe than sorry”