1. I have resolved to make one post that is not theoretical but rather very practical and that will answer every single question you could possibly have on the Prescription Act 68 of 1969, claiming prescription in practice, entering a special plea of prescription and proving that you’ve claimed prescription
2. Find attached 5 documents, a FAQ doc, an example of a prescription claim letter, an example of a summons, an example of a special plea for prescription; and an affidavit(to prove that you’ve claimed prescription). In all cases modify these documents to cater for your individual case and details etc;
3. Let’s assume that a creditor/debt collector/ attorney contacts you to demand payment for a debt that is indeed prescribed(this letter is for debts that prescribe after 3 years! See FAQ for more information!), then do the following:-
3.1. Modify the attached prescription claim letter to include your individual details, send this letter as an email attachment to the creditor/attorney or debt collector, also send this letter by registered post(keep the slip!!);
3.2. If the creditor refuses to acknowledge the prescription claim, complete an affidavit to that effect and keep for your records. This will prove beneficial if the creditor still pursues the matter to court
How to enter a special plea of Prescription
1. Regardless of whether you receive an ordinary summons or combined summons you still need to enter a notice of intention to defend with the clerk of courts and the plaintiff’s attorney;
2. A special plea is called “a plea in abatement” which quite essentially destroys the entire action, here you not denying that the debt existed and that you did once upon a time in fairy land owed that money but merely that the debt is prescribed, the plaintiff has no cause of action! So use the attached ‘precedant,’(form) and modify it to your individual circumstances. You file this with the clerk of courts and the plaintiff’s attorneys
The magistrates court rules has undergone some major revamping in the past 3 years so be very careful about what you “google”. What I am providing you with is accurate and up to date as at today’s date.
The plaintiff can either sue out combined summons or summons in respect of debt claims. In either case you still need to file a notice of intention to defend!
What was previously known as , “summons commencing ordinary action,” has been replaced by “summons: claims in respect of debt or liquidated demand.
Happy hunting! Take on Steve from XYZ bank, enforce your rights, the fact is that when the law is on Steve from xyz bank’s side Steve pursues you vigorously and without mercy. Steve from xyz bank don’t care whether you live or die!! So don’t let your rights be infringed and remember: “The biggest man you ever gonna see was once a baby!” Bob Marley
Steve from xyz bank may be a very, very big tree BUT, “ If you are a big, big tree, we are a small axe, ready to cut you down, sharpened to cut you down!” Bob Marley
Steve from xyz bank may be a giant BUT David slew Goliath with a sling and a stone. Steve from xyz bank may be a huge army BUT Samson slew the philistines with a donkey’s jaw bone!! He said, Today, I made a donkey of you with a donkey’s jaw bone.”
Invitation to take part in a survey: Fill in PDF questionnaire
1. Preliminary research that I have conducted has demonstrated that many people are unaware of their rights regarding extinctive prescription claims. I have also established that certain creditors don’t have policy documents on extinctive prescription. I further established that there is a great deal of uncertainty from both debtors and creditors as to how extinctive prescription should be claimed and whether there is a difference between an extinctive prescription claim and a special plea of prescription. There is also unpredictability as to how a creditor may respond to your your claim. It doesn’t help to have a law and that law doesn’t work!!!!!
2. I believe that a section should be added to that act which places a lawful obligation on the creditor to process a debtors prescription even where the debtor has done so telephonically and confirm the same in writing.
If you would like to take part in this survey, kindly send a blank email to firstname.lastname@example.org with the subject survey. I will then send you a pdf fill in form, you select your answers, save it and then email as a pdf attachment to email@example.com
This is a good cause!!!