Written by Roy Bregman,
admitted attorney with over 51 years' experience in litigation and debt
recovery. Last updated: 6 August 2026.
|
Key Takeaways • Most
debts expire after three years. If you do not sue or obtain an acknowledgement of
the debt in time, your claim is permanently extinguished, meaning it ceases
to exist in law. • The
clock only starts when you know enough to sue. Prescription begins when you
know the identity of the debtor and the essential facts of your claim, or
when you reasonably could have known them. • The
Supreme Court of Appeal confirmed in July 2026 that a homeowner's damages claim
against a builder for structural defects only becomes due once the builder
has failed or refused to repair after a reasonable opportunity, not when the
defects are first discovered. • You can
stop the clock. Serving
a summons resets prescription, and so does an acknowledgement of the debt,
such as a part payment or a written promise to pay. |
What Does Prescription
Mean in South African Law?
Prescription is
the legal rule that puts an expiry date on debts and claims. It is often called
the "use it or lose it" rule, and it is governed mainly by the
Prescription Act 68 of 1969. If you wait too long to enforce a claim, the law
extinguishes it, which means the debt ceases to exist and can no longer be
recovered in court.
In legal
language, the person who is owed the money or performance is called the
creditor, and the person who owes it is called the debtor. When a debtor is
sued on an old claim, they can raise what is called a special plea of
prescription, which is a formal defence asking the court to dismiss the claim
purely because too much time has passed.
The rule exists
for good reasons. Disputes should be resolved while documents still exist and
memories are fresh, and nobody should live indefinitely under the threat of a
decades old claim. The law therefore expects creditors to act diligently and
not to sleep on their rights.
How Long Do I Have Before
My Claim Prescribes?
For most
everyday debts, you have three years. This covers claims such as money lent,
unpaid invoices for goods or services, arrear rent, damages for breach of
contract, and most personal injury claims. The Prescription Act sets longer
periods for certain special categories of debt, summarised below.
|
Type of debt |
Prescription period |
Everyday examples |
|
Ordinary
debts |
3 years |
Loans
between individuals, unpaid invoices, arrear rent, damages claims |
|
Debts
arising from a negotiable instrument or notarial contract |
6 years |
Cheques,
promissory notes, notarial bonds |
|
Debts
secured by a mortgage bond, judgment debts, and certain debts owed to the
state |
30
years |
Home
loan debt secured by a bond, a court judgment for payment, taxes |
Some statutes
create their own special time limits, for example claims against the Road
Accident Fund. Always check whether specific legislation applies to your claim
before assuming the ordinary three year period applies.
When Does the Prescription
Clock Start Ticking?
The clock
starts as soon as the debt becomes due, which means the moment you are legally
entitled to claim payment or performance. Section 12(3) of the Prescription Act
adds an important protection: a debt is not treated as due until the creditor
knows the identity of the debtor and the facts from which the debt arises.
However, you cannot simply close your eyes, because the law deems you to have
knowledge you could have acquired by exercising reasonable care.
Do I need to understand the law before the
clock starts?
No, you only
need to know the essential facts, not the legal conclusions that flow from
them. The courts have repeatedly held that prescription starts running once you
have the minimum facts necessary to institute action. Not knowing that those
facts give you a legal claim will not delay prescription, which is why
obtaining legal advice early is so important.
What about loans repayable on demand?
A loan
repayable on demand generally becomes due, and prescription starts running, the
moment the money is advanced, not when you eventually demand repayment. The
Constitutional Court confirmed this in Trinity Asset
Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd [2017] ZACC 32,
where a lender lost a claim of over R4.5 million because it waited more than
three years after advancing the loan before demanding repayment. If you want
demand to be a precondition for repayment, the contract must say so clearly.
What Have the Courts
Decided Recently About Prescription?
Janse van Vuuren v WJB Stieger Konstruksie
(SCA, July 2026): building defect claims
In Janse van Vuuren v
WJB Stieger Konstruksie (Pty) Ltd [2026] ZASCA 102, the Supreme Court of
Appeal gave homeowners important relief. Mr Janse van Vuuren contracted a
builder in 2015 to construct his home in Rustenburg. He took occupation in
October 2016, cracks and other defects appeared within months, and an engineer
confirmed major structural defects in January 2018, finding the house
uninhabitable.
The builder
attempted repairs as late as October 2018 but never fixed the problems. When
the homeowner sued for damages of over R4.6 million in January 2021, the
builder argued that the claim had prescribed because the homeowner had known
about the defects since 2017.
The SCA
rejected that argument. It held that knowing about the defects is not the same
as knowing the builder has breached its warranty to repair them. Under the
Housing Consumers Protection Measures Act 95 of 1998, the builder must first be
given a reasonable opportunity to repair. Only when the builder fails or
refuses to repair does the damages claim become due and the prescription clock
start. Because the builder was still attempting repairs in October 2018 and
never refused to repair, the claim issued in January 2021 had not prescribed.
Stemmet v Mokhethi (SCA, 2023): a warning
for property buyers
The outcome is
very different where no repair warranty is involved. In Stemmet and Another
v Mokhethi and Another [2023] ZASCA 127, buyers of a Bloemfontein home
discovered hidden defects, called latent defects, shortly after purchase in
2013. By mid-2014 they knew of the defects and who the sellers were, yet they
only served summons in July 2017.
The SCA held
that the claim had prescribed. Once the buyers knew of the defects and the
identity of the sellers, they had the minimum facts needed to sue, and the
three year period ran out before summons was served. The lesson is clear: where
your claim does not depend on first giving the other party a chance to fix the
problem, the clock starts as soon as you know the essential facts.
Can the Prescription Clock
Be Paused or Reset?
Yes, the law
recognises two mechanisms, interruption and suspension. Interruption resets the
clock to zero, while suspension pauses it temporarily.
Interruption: resetting the clock
Prescription is
interrupted when the creditor serves legal process, typically a summons, on the
debtor. It is also interrupted when the debtor acknowledges liability,
expressly or by conduct. An acknowledgement includes making a part payment,
paying interest, promising to pay, or asking for more time. After an
interruption, a fresh prescription period starts running.
Suspension: pausing the clock
Section 13 of
the Prescription Act delays the completion of prescription where the creditor
is unable to act, for example where the creditor is a minor, is under
curatorship, is married to the debtor, or where the debtor is outside the
country. When the impediment, meaning the obstacle, falls away, the creditor is
given at least a year to act before the claim can prescribe.
What Should I Do to
Protect My Claim From Prescribing?
Act early and
create a paper trail. Follow these practical steps:
•
Diarise the key dates. Record
when the debt became due and when you first learned the essential facts and
work out your deadline conservatively.
•
Get legal advice promptly. Waiting
to understand your legal position does not delay prescription, so consult an
attorney as soon as a problem arises.
•
Send a written demand. A
letter of demand does not interrupt prescription on its own, but it starts the
enforcement process and often produces an acknowledgement.
•
Secure an acknowledgement of
debt in writing. A signed acknowledgement, a part payment, or a written
promise to pay resets the clock and strengthens your claim.
•
Issue and serve summons in good
time. Only service of legal process reliably interrupts prescription, so do
not leave it to the last weeks.
•
For building defects, give the
builder a written opportunity to repair, keep records of every repair
attempt, and act decisively once the builder fails or refuses to fix the
problem.
Conclusion: Why Deadlines
Decide Cases
Prescription is
one of the most unforgiving rules in South African law. Courts regularly
dismiss otherwise strong claims purely because the creditor waited too long, as
the buyers in Stemmet discovered. At the same time, the 2026 Janse van Vuuren
judgment shows that the clock does not always start when you first notice a
problem, and that the details of your contract and the relevant legislation can
make all the difference.
Whether you are
a consumer owed a refund, a business chasing unpaid invoices, or a homeowner
facing building defects, the safest course is the same: establish your deadline
early, protect it in writing, and enforce your rights before time runs out.
Frequently Asked Questions
How long before a debt prescribes in South
Africa?
Most debts
prescribe after three years, including loans, unpaid invoices, and damages
claims. Debts under negotiable instruments or notarial contracts prescribe
after six years. Mortgage bond debts, judgment debts, and certain debts owed to
the state prescribe after thirty years. Some statutes impose their own special
time limits.
When does prescription start running on a
claim?
Prescription
starts when the debt becomes due and the creditor knows, or reasonably could
have known, the identity of the debtor and the facts giving rise to the claim.
You do not need to understand the legal position, only the essential facts
needed to institute action.
Does a letter of demand stop prescription?
No, a letter of
demand does not interrupt prescription on its own. Only the service of legal
process, such as a summons, or an acknowledgement of liability by the debtor,
such as a part payment or written promise to pay, resets the prescription
clock. Send demands early, then sue in time.
Can I still claim against my builder for
structural defects after three years?
Possibly, yes.
The Supreme Court of Appeal held in July 2026 that a damages claim for breach
of a builder's statutory warranty only becomes due once the builder fails or
refuses to repair after a reasonable opportunity, not when you first discover
the defects. Each case depends on its own timeline.
What happens if I pay a debt that has
already prescribed?
You generally
cannot recover the money. A prescribed debt is extinguished, but payment made
afterwards is treated as payment of a natural obligation, so it cannot be
reclaimed. Before paying an old debt, especially to debt collectors, first
obtain advice on whether the debt has prescribed.
Speak to Us Before Time
Runs Out
If someone owes
you money, or you are facing a claim you believe has prescribed, do not guess
your deadline. Bregman Moodley Attorneys has been taking the sting out of legal
problems since 1974, and we will assess your position quickly and candidly.
Call us
today on +27 (0)11 646 0335, email roy@bmalaw.co.za,
or visit bregmans.co.za to book a
consultation. One phone call now can save a claim worth millions later.
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