Prescription of debt
This sounds quite straightforward, but there are rules and regulations that need to be understood. Different periods apply to different types of debt and different institutions involved. Prescriptions periods may also be delayed or interrupted.

Debt can be considered prescribed if the following requirements are met:
- You have not acknowledged the debt in the past consecutive three years, either in writing or verbally. In other words, you should not have entered into an acknowledgement of debt agreement.
- You have not made a payment in respect of the debt in the past consecutive three years.
- The creditor has not issued summons for payment within the past consecutive three years
Prescription starts to run as soon as a debt is due – that is, when the creditor can identify the debtor and the facts from which the debt arose. An example would be that prescription of a claim for damages resulting from a motor vehicle accident, would run from the day of the accident.
Prescription will be delayed in the following instances:
- The creditor is a minor, or under curatorship;
- The debtor is not in South Africa;
- The creditor and debtor are married to each other;
- The creditor and debtor are partners and the debt arose from a partnership agreement;
- The debt is the subject of a dispute in arbitration
- One of the parties is deceased and an executor has not yet been appointed.
If prescription is delayed due to one of the above restrictions and the restriction stops on, after or within one year before the normal prescription period will end, one year will be added after the date on which the restriction ceased.
Prescription will be interrupted if the debtor acknowledges the debt by paying a portion of the debt within the period of three years, or agrees that he is indebted to the creditor. Prescription will also be interrupted if the creditor issues summons against the debtor within a period of three years from when the debt arose.
The prescription period of three years is not the norm in every case, certain types of debt has different times attached and it must also be considered whether the creditor is a government entity or not. Herewith some examples of prescription periods:
Non-Government claims:
- 30 Years: Debt secured by a mortgage bond, judgement debt;
- 6 Years: Debt relating to a negotiable instrument;
- 3 Years: Debt arising from delict or contract;
Government Claims:
- 30 Years: Debt arising from tax or levies under any law, debt owed to the state for profits in respect of the right to mine substances;
- 15 Years: Debt owed to the State for money loaned or a sale or lease of land by the State;
- 3 Years: Debt against State Organs arising from delict or contract;
If a debt has prescribed, you are no longer required to settle that debt. Creditors will probably still try to collect the amount, whereupon the defence of prescription may be raised and this will extinguish the creditor’s claim. The Prescription Act 68 of 1969 states in Section 17 that the court shall not of its own motion take notice of prescription. In other words, if a defendant does not raise the defence of prescription, the court will allow the creditor’s claim.
If you are served with a summons in respect of prescribed debt, it is of utmost importance to serve a formal notice of intention to defend and to raise this defence in your plea. It will be irresponsible to merely ignore the summons and to merely rely on the fact that the debt has prescribed as the court cannot dismiss a claim based on prescription if the defence is not raised.