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Prescription Act, 1969

Act 68 of 1969

Prescription Act, 1969
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Act 68 of 1969
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South Africa

Prescription Act, 1969

Act 68 of 1969

  1. [Amended by General Law Amendment Act, 1973 (Act 62 of 1973) on 1 December 1970]
  2. [Amended by General Law Amendment Act, 1975 (Act 57 of 1975) on 20 June 1975]
  3. [Amended by Prescription Amendment Act, 1984 (Act 11 of 1984) on 7 March 1984]
  4. [Amended by General Law Amendment Act, 1992 (Act 139 of 1992) on 7 August 1992]
  5. [Amended by General Law Fourth Amendment Act, 1993 (Act 132 of 1993) on 1 December 1993]
  6. [Amended by Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007 (Act 32 of 2007) on 16 December 2007]
  7. [Amended by Prevention and Combating of Trafficking in Persons Act, 2013 (Act 7 of 2013) on 9 August 2015]
  8. [Amended by Prescription in Civil and Criminal Matters (Sexual Offences) Amendment Act, 2020 (Act 15 of 2020) on 23 December 2020]
(English text signed by the State President.)ACTTo consolidate and amend the laws relating to prescription.BE IT ENACTED by the State President, the Senate and the House of Assembly of the Republic of South Africa, as follows:—

Chapter I
Acquisition of ownership by prescription

1. Acquisition of ownership by prescription

Subject to the provisions of this Chapter and of Chapter IV, a person shall by prescription become the owner of a thing which he has possessed openly and as if he were the owner thereof for an uninterrupted period of thirty years or for a period which, together with any periods for which such thing was so possessed by his predecessors in title, constitutes an uninterrupted period of thirty years.

2. Involuntary loss of possession

The running of prescription shall not be interrupted by involuntary loss of possession if possession is regained at any time by means of legal proceedings instituted within six months after such loss for the purpose of regaining possession, or if possession is lawfully regained in any other way within one year after such loss.

3. Completion of prescription postponed in certain circumstances

(1)If—
(a)the person against whom the prescription is running is a minor or is insane, or is a person under curatorship, or is prevented by superior force from interrupting the running of prescription as contemplated in section 4; or[paragraph (a) substituted by section 22 of Act 132 of 1993]
(b)the person in favour of whom the prescription is running is outside the Republic, or is married to the person against whom the prescription is running, or is a member of the governing body of a juristic person against whom the prescription is running; and[paragraph (b) substituted by section 10 of Act 139 of 1992]
(c)the period of prescription would, but for the provisions of this subsection, be completed before or on, or within three years after, the day on which the relevant impediment referred to in paragraph (a) or (6) has ceased to exist,
the period of prescription shall not be completed before the expiration of a period of three years after the day referred to in paragraph (c).
(2)Subject to the provisions of subsection (1), the period of prescription in relation to fideicommissary property shall not be completed against a fideicommissary before the expiration of a period of three years after the day on which the right of that fideicommissary to that property vested in him.

4. Judicial interruption of prescription

(1)The running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service on the possessor of the thing in question of any process whereby any person claims ownership in that thing.
(2)Any interruption in terms of subsection (1) shall lapse, and the running of prescription shall not be deemed to have been interrupted, if the person claiming ownership in the thing in question does not successfully prosecute his claim under the process in question to final judgment or if he does so prosecute his claim but abandons the judgment or the judgment is set aside.
(3)If the running of prescription is interrupted as contemplated in subsection (1), a new period of prescription shall commence to run, if at all, only on the day on which final judgment is given.
(4)For the purposes of this section "process" includes a petition, a notice of motion, a rule nisi and any document whereby legal proceedings are commenced.

5. Application of this Chapter to a prescription not completed at the commencement of this Act

A prescription which has not been completed at the commencement of this Act, shall be governed by the provisions of this Chapter in respect of the course of the unexpired portion of the period of prescription.

Chapter II
Acquisition and extinction of servitudes by prescription

6. Acquisition of servitudes by prescription

Subject to the provisions of this Chapter and of Chapter IV, a person shall acquire a servitude by prescription if he has openly and as though he were entitled to do so, exercised the rights and powers which a person who has a right to such servitude is entitled to exercise, for an uninterrupted period of thirty years or, in the case of a praedial servitude, for a period which, together with any periods for which such rights and powers were so exercised by his predecessors in title, constitutes an uninterrupted period of thirty year.

7. Extinction of servitudes by prescription

(1)A servitude shall be extinguished by prescription if it has not been exercised for an uninterrupted period of thirty years.
(2)For the purposes of subsection (1) a negative servitude shall be deemed to be exercised as long as nothing which impairs the enjoyment of the servitude, has been done on the servient tenement.

8. Application of certain provisions of Chapter I to the acquisition and extinction of servitudes by prescription

(1)The provisions of sections 2, 3, 4 and 5 shall apply mutatis mutandis to the acquisition of a servitude by prescription.
(2)The provisions of sections 3, 4 and 5 shall apply mutatis mutandis to the extinction of a servitude by prescription.
(3)For the purposes of the application of the provisions of section 4(1) in relation to the acquisition or extinction of a servitude by prescription, any reference therein to the possessor of the thing shall be construed as a reference to the person in whose favour the prescription is running; and any reference therein to a claim to the ownership in the thing shall be construed as a reference to a claim for the termination of the exercise of the rights and powers or of the breach of the servitude, as the case may be, by virtue of which the prescription is running.

9. This Chapter not applicable to public servitudes

The provisions of this Chapter shall not apply to public servitudes. prescription in terms of either of the said subsections, shall be regarded as payment of a debt.

Chapter III
Prescription of debts

10. Extinction of debts by prescription

(1)Subject to the provisions of this Chapter and of Chapter IV, a debt shall be extinguished by prescription after the lapse of the period which in terms of the relevant law applies in respect of the prescription of such debt.
(2)By the prescription of a principal debt a subsidiary debt which arose from such principal debt shall also be extinguished by prescription.
(3)Notwithstanding the provisions of subsections (1) and (2), payment by the debtor of a debt after it has been extinguished by prescription in terms of either of the said subsections, shall be regarded as payment of a debt.

11. Periods of prescription of debts

The periods of prescription of debts shall be the following:
(a)thirty years in respect of—
(i)any debt secured by mortgage bond;
(ii)any judgment debt;
(iii)any debt in respect of any taxation imposed or levied by or under any law;
(iv)any debt owed to the State in respect of any share of the profits, royalties or any similar consideration payable in respect of the right to mine minerals or other substances;
(b)fifteen years in respect of any debt owed to the State and arising out of an advance or loan of money or a sale or lease of land by the State to the debtor, unless a longer period applies in respect of the debt in question in terms of paragraph (a);
(c)six years in respect of a debt arising from a bill of exchange or other negotiable instrument or from a notarial contract, unless a longer period applies in respect of the debt in question in terms of paragraph (a) or (b);
(d)save where an Act of Parliament provides otherwise, three years in respect of any other debt.

12. When prescription begins to run

(1)Subject to the provisions of subsections (2), (3), and (4), prescription shall commence to run as soon as the debt is due.[subsection (1) substituted by section 68(2) of Act 32 of 2007]
(2)If the debtor wilfully prevents the creditor from coming to know of the existence of the debt, prescription shall not commence to run until the creditor becomes aware of the existence of the debt.
(3)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: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care.[subsection (3) substituted by section 1 of Act 11 of 1984]
(4)Prescription shall not commence to run in respect of a debt that is based on the alleged commission of—
(a)any sexual offence in terms of the common law or a statute; and
(b)offences as provided for in sections 4, 5, 6, 7 and 8(1) and involvement in these offences as provided for in section 10 of the Prevention and Combating of Trafficking in Persons Act, 2013,
during the time in which the creditor is unable to institute proceedings because of his or her mental or intellectual disability, disorder or incapacity, or because of any other factor that the court deems appropriate.[subsection (4) added by section 68(2) of Act 32 of 2007, substituted by section 48 of Act 7 of 2013 and by section 1 of Act 15 of 2020]

13. Completion of prescription delayed in certain circumstances

(1)If—
(a)the creditor is a minor or is a person with a mental or intellectual disability, disorder or incapacity, or is affected by any other factor that the court deems appropriate with regard to any offence referred to in section 12(4), or is a person under curatorship or is prevented by superior force including any law or any order of court from interrupting the running of prescription as contemplated in section 15(1); or[paragraph (a) substituted by section 2 of Act 15 of 2020]
(b)the debtor is outside the Republic; or[paragraph (b) substituted by section 11(a) of Act 139 of 1992]
(c)the creditor and debtor are married to each other; or
(d)the creditor and debtor are partners and the debt is a debt which arose out of the partnership relationship; or
(e)the creditor is a juristic person and the debtor is a member of the governing body of such juristic person; or
(f)the debt is the object of a dispute subjected to arbitration; or
(g)the debt is the object of a claim filed against the estate of a debtor who is deceased or against the insolvent estate of the debtor or against a company in liquidation or against an applicant under the Agricultural Credit Act, 1966 (Act No. 28 of 1966); or[paragraph (g) substituted by section 11(b) of Act 139 of 1992]
(h)the creditor or the debtor is deceased and an executor of the estate in question has not yet been appointed; and
(i)the relevant period of prescription would, but for the provisions of this subsection, be completed before or on, or within one year after, the day on which the relevant impediment referred to in paragraph (a), (b), (c), (d), (e), (f), (g) or (h) has ceased to exist,
the period of prescription shall not be completed before a year has elapsed after the day referred to in paragraph (i).
(2)A debt which arises from a contract and which would, but for the provisions of this subsection, become prescribed before a reciprocal debt which arises from the same contract becomes prescribed, shall not become prescribed before the reciprocal debt becomes prescribed.

14. Interruption of prescription by acknowledgement of liability

(1)The running of prescription shall be interrupted by an express or tacit acknowledgement of liability by the debtor.
(2)If the running of prescription is interrupted as contemplated in subsection (1), prescription shall commence to run afresh from the day on which the interruption takes place or, if at the time of the interruption or at any time thereafter the parties postpone the due date of the debt, from the date upon which the debt again becomes due.

15. Judicial interruption of prescription

(1)The running of prescription shall, subject to the provisions of subsection (2), be interrupted by the service on the debtor of any process whereby the creditor claims payment of the debt.
(2)Unless the debtor acknowledges liability, the interruption of prescription in terms of subsection (1) shall lapse, and the running of prescription shall not be deemed to have been interrupted, if the creditor does not successfully prosecute his claim under the process in question to final judgment or if he does so prosecute his claim but abandons the judgment or the judgment is set aside.
(3)If the running of prescription is interrupted as contemplated in subsection (1) and the debtor acknowledges liability, and the creditor does not prosecute his claim to final judgment, prescription shall commence to run afresh from the day on which the debtor acknowledges liability or, if at the time when the debtor acknowledges liability or at any time thereafter the parties postpone the due date of the debt, from the day upon which the debt again becomes due.
(4)If the running of prescription is interrupted as contem­plated in subsection (1) and the creditor successfully prosecutes his claim under the process in question to final judgment and the interruption does not lapse in terms of subsection (2), prescription shall commence to run afresh on the day on which the judgment of the court becomes executable.
(5)If any person is joined as a defendant on his own application, the process whereby the creditor claims payment of the debt shall be deemed to have been served on such person on the date of such joinder.
(6)For the purposes of this section, "process" includes a petition, a notice of motion, a rule nisi, a pleading in reconvention, a third party notice referred to in any rule of court, and any document whereby legal proceedings are commenced.

16. Application of this Chapter

(1)Subject to the provisions of subsection (2)(b), the provisions of this chapter shall, save in so far as they are inconsistent with the provisions of any Act of Parliament which prescribes a specified period within which a claim is to be made or an action is to be instituted in respect of a debt or imposes conditions on the institution of an action for the recovery of a debt, apply to any debt arising after the commencement of this Act.
(2)The provisions of any law—
(a)which immediately before the commencement of this Act applied to the prescription of a debt which arose before such commencement; or
(b)which, if this Act had not come into operation, would have applied to the prescription of a debt which arose or arises out of an advance or loan of money by an insurer to any person in respect of an insurance policy issued by such insurer before 1 January 1974,[paragraph (b) substituted by section 31 of Act 57 of 1975]
shall continue to apply to the prescription of the debt in question in all respects as if this Act had not come into operation.
[section 16 substituted by section 41(1) of Act 62 of 1973]

Chapter IV
General

17. Prescription to be raised in pleadings

(1)A court shall not of its own motion take notice of prescription.
(2)A party to litigation who invokes prescription, shall do so in the relevant document filed of record in the proceedings: Provided that a court may allow prescription to be raised at any stage of the proceedings.

18. Laws prohibiting acquisition of land of any right in land by prescription not affected by this Act

The provisions of this Act shall not affect the provisions of any law prohibiting the acquisition of land or any right in land by prescription.

19. This Act binds the State

This Act shall bind the State.

20. This Act not applicable where Bantu law applies

In so far as any right or obligation of any person against any other person is governed by Bantu law, the provisions of this Act shall not apply.

21. ***

[section 21 repealed by section 12 of Act 139 of 1992]

22. Repeal of laws

Subject to the provisions of section 16(2), the laws mentioned in the Schedule to this Act are hereby repealed to the extent set out in the third column of that Schedule.

23. Short title and commencement

This Act shall be called the Prescription Act, 1969, and shall come into operation on a date to be fixed by the State President by proclamation in the Gazette.

Schedule

Laws repealed

No. and year of lawTitleExtent of repeal
Act No. 18 of 1943Prescription Act, 1943The whole.
Act No. 46 of 1945Finance Act, 1945Sections 27, 28, 29 and 30.
Act No. 62 of 1955General Law Amendment Act, 1955Section 23.
Act No. 50 of 1956General Law Amendment Act, 1956Section 16.
Act No. 80 of 1964General Law Amendment Act, 1964Section 6.
Proclamation No. 13 of 1943 of the Administrator of South-West AfricaPrescription Proclamation, 1943The whole.
Proclamation No. 17 of 1944 of the Administrator of South-West AfricaPrescription Amendment Proclamation, 1944The whole.
Ordinance No. 36 of 1965 of South-West AfricaGeneral Law Amendment Ordinance, 1965Section 3.
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Cited documents 6

Act
6
Constitution of the Republic of South Africa, 1996
Citizenship and Immigration · Education · Environment, Climate and Wildlife · Health and Food Safety · Human Rights · International Law · Labour and Employment · Public administration
General Law Amendment Act, 1955
Agricultural Credit Act, 1966
General Law Amendment Act, 1956
General Law Amendment Act, 1964
Prescription Act, 1943
Repealed

Documents citing this one 657

Judgment
538
Barkhuizen v Napier [2007] ZACC 5 (4 April 2007)
Reported
A contractual 90‑day time‑bar is tested against public policy informed by the Constitution; on these facts it was enforceable.
* Constitutional law – contracts – time‑limitation (vexata) clauses in standard form insurance policies – whether clause barring suit unless summons served within 90 days of repudiation offends public policy and right of access to courts (s 34). * Constitutional horizontality – proper approach is to test contractual terms against public policy informed by constitutional values (indirect application) and develop common law accordingly. * Test: Mohlomi standard – clause must afford an adequate and fair opportunity to seek judicial redress; assess objective unreasonableness and, if not manifest, whether enforcement would be unfair in light of reasons for non‑compliance. * Consumer/standard‑form concerns – small print, unilateral clauses, and relative bargaining power relevant to fairness/enforceability.
Makate v Vodacom (Pty) Limited (CCT 52/15) [2016] ZACC 13 (26 April 2016)
Reported
An oral agreement to negotiate remuneration was enforceable; director had apparent authority and the claim had not prescribed.
Contract — oral agreement to negotiate in good faith — pacta de contrahendo enforceable where deadlock-breaking mechanism exists. Agency — ostensible/apparent authority — appearance of authority created by principal can bind principal; distinction between ostensible authority and estoppel debated (majority treats as distinct; concurrence treats as estoppel by representation). Pleading — ostensible authority may be pleaded in particulars; replication not essential. Prescription Act — ss 10(1), 11(d), 12(1), 12(3) — “debt” narrowly construed; obligation to negotiate is not a debt; claim not prescribed. Constitutional interpretation — s 39(2) requires rights-protective construction of Prescription Act.
Minister of Finance and Others v Gore NO (230/2006) [2006] ZASCA 98 (8 September 2006)
Reported
Deliberate fraud by public officials in tendering attracts vicarious state liability; prescription requires justified true belief.
Prescription — s 12(3): 'knowledge' requires justified true belief, not mere suspicion; Vicarious liability — employer (State) liable for employees' deliberate fraud where acts closely connected to duties; Causation — 'but for' test applied to administrative/tender discretion; Wrongfulness/public policy — deliberate fraud in tender process not exempt from delictual liability.
Road Accident Fund and Another v Mdeyide (CCT 10/10) [2010] ZACC 18 (30 September 2010)
Reported
A fixed three‑year RAF prescription from the cause of action is constitutional; the Prescription Act’s knowledge requirement does not apply.
Prescription — Road Accident Fund Act s23(1) — inconsistency with Prescription Act s12(3) — knowledge requirement not imported; Right of access to courts (s34) — time‑bar limits right; Limitation justified under s36 given administrability and fiscal sustainability of RAF; Dissent: lack of knowledge requirement and condonation disproportionally affects disadvantaged claimants.
Truter and Another v Deysel (43/2005) [2006] ZASCA 16 (17 March 2006)
Reported
Prescription begins once the creditor knows the material facts, not when an expert confirms negligence.
Prescription — s 12(3) — ‘knowledge of the facts from which the debt arises’ means knowledge of the material facts, not of legal conclusions (fault); expert opinion is evidence, not a fact; delictual cause of action complete once material facts and some damage exist; ‘once and for all’ rule; claim prescribed where material facts were known or reasonably accessible within prescriptive period.
Mtokonya v Minister of Police [2017] ZACC 33 (19 September 2017)
Reported
The applicant’s claim prescribed: s12(3) requires knowledge of debtor identity and facts, not legal wrongfulness.
* Prescription – Interpretation of s 12(3) of the Prescription Act – Knowledge required before debt is ‘deemed to be due’ – Section requires knowledge of identity of debtor and facts from which debt arises, not legal conclusions (wrongfulness/actionability). * Special case (rule 33) – court confined to agreed facts and legal questions; may not decide issues or draw factual inferences not in the stated case. * Constitutional considerations – dissent favours a purposive, Constitution‑consistent interpretation to protect vulnerable claimants lacking knowledge of claims.
PriceWaterhouseCoopers Inc and Others v National Potato Co-operative Ltd and Another (451/2012) [2015] ZASCA 2 (4 March 2015)
Reported
Auditor duties are contractual and statutory, but negligent audit shortcomings did not cause the co‑operative’s trading losses; claim dismissed.
Auditors — contractual relationship and annual contracts; duties under statute and GAAS; expert evidence — admissibility, independence and factual foundation; hearsay — trial management and admissibility; causation — losses from trading not ordinarily recoverable from auditors; prescription — directors’ knowledge attributed to corporate claimant for s 12(3) Prescription Act purposes; costs — control of protracted, document‑heavy litigation.
Tembani and Others v President of Republic of South Africa and Another (167 of 2021) [2022] ZASCA 70 (20 May 2022)
Reported
Exception inappropriate to dispose of a novel delict claim; causation conflated and dismissal of exception not appealable.
Delict – novel/delicate delictual claims – exceptions inappropriate where factual situation complex and legal position uncertain; factual causation distinct from legal causation; dismissal of exception (save to jurisdiction) not appealable; conditional condonation/prescription issues better determined at trial or by appropriate interlocutory procedure.
Mohlomi v Minister of Defence [1996] ZACC 20 (26 September 1996)
Reported
A rigid notice-and-time bar preventing access to courts violates section 22 and is not justified under section 33.
Constitutional law — access to courts (s22) — statutory notice and time bars for actions against the State — section 113(1) Defence Act invalid; limitation justified inquiry (s33) — comparison with Prescription Act and Police Act s57; remedy and temporal effect; remittal to trial court.
Trustees for the time being of Children's Resource Centre Trust and Others v Pioneer Food (Pty) Ltd and Others (50/2012) [2012] ZASCA 182 (29 November 2012)
Reported
Court sets certification criteria for class actions, refuses national class, remits Western Cape class for fuller evidence and amended relief.
Class actions — certification required before summons — prerequisites: identifiable class, cause of action raising triable issue, common issues, ascertainable relief/appropriate aggregate allocation, suitable representative, appropriateness of class procedure — class actions not confined to Bill of Rights claims — Competition Act s 65 does not plainly oust delictual follow‑on claims — cy‑près distribution that divests class members of compensation impermissible without clear justification.
Gazette
97
Act
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Labour Relations Act, 1995
Business, Trade and Industry · Dispute Resolution and Mediation · Environment, Climate and Wildlife · Finance and Money · Human Rights · International Law · Labour and Employment
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Criminal Law (Sexual Offences and Related Matters) Amendment Act, 2007
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Mineral and Petroleum Resources Development Act, 2002
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Financial Advisory and Intermediary Services Act, 2002
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Financial Sector Regulation Act, 2017
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Prevention and Combating of Trafficking in Persons Act, 2013
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