[Home] [Databases] [WorldLII] [Search] [Feedback] South African Law Commission

You are here:  SAFLII >> Databases >> South African Law Commission >> Issue Paper >> 23 >> 2. Reasons for prescription of debts

[Database Search] [Name Search] [Previous] [Next] [Download] [Help]

2. Reasons for prescription of debts

2.1 The reasons given for prescription of debts are the following:

2.1.1 After a specified period of time the fault of a creditor (claimant) in taking care of his or her claim should be visited by certain penalties, namely, the extinction or rendering unenforceable of the claim;

2.1.2 Prescription relieves the debtor of having to defend a claim long after the event;^[1] and

2.1.3 A state of affairs which has existed for a considerable period of time ought to be legally formalised in the interests of certainty^[2] in legal affairs.

2.2 In general the courts seem to have favoured the idea that the primary purpose of prescription is to punish the slovenly creditor, although fault on the creditor’s part is not, and never has been, a requirement for prescription.^[3]

2.3 Creditors (claimants) and debtors (defendants) have competing interests^[4]

2.3.1 It is unfair that a debtor should be subject to an indefinite threat of being sued.

2.3.2 It is in the interests of creditors to have as long as possible to institute a claim.

^[1] Solomon v Multilateral Motor Vehicle Accident Fund 1999 (4) SA 237 (C)

^[2] De Jager v ABSA Bank Bpk 2001 (3) SA 537 (SCA) 543A. Prescription is described as a measure in the public interest, with the main practical purpose to promote certainty.

^[3] J S Saner “Prescription” in Vol 21 first reissue of Vol 21 of The Law of South Africa edited by W A Joubert Durban: Butterworths 2000, par 122, “LAWSA”.

^[4] The Law Commission report on Limitation of Actions Law Com No 270 London: July 2001 as published at www.lawcom.gov.uk/library/lib-com.htm#liblc270, “United Kingdom report”, par 1.6 on page 2; Law Reform Commission of Western Australia Report on limitation and notice of actions Project 36 Part II Perth: January 1997, “Western Australia report”, par 7.8 on page 166; Queensland Law Reform Commission Review of the Limitation of Actions Act 1974 (QLD) Report No 53 Brisbane: September 1998, “Queensland report”, par 3 on page 8.