Debt: How to claim prescription in practice and how to enter a special plea

**Modise** · 13-Mar-12, 05:57 PM

Hi,
What is your personal email?

**Citizen X** · 14-Mar-12, 11:04 AM

Hi Modise,

terribly sorry for the late reply. I sent you a private message with my email address...

**Citizen X** · 19-Mar-12, 04:53 PM

Steve from abc mobile company!
I stand to be corrected but I was really under the impression that there is only a Steve from XYZ bank. It seems Steve from xyz bank has left xyz bank and is now working for a mobile company.
Brief synopsis. Mr X takes out phone contract in 2007, he diligently pays for about 5 months and then looses his job after which he never pays again. He doesn’t acknowledge debt and there are no other events to interrupt prescription. A prescription claim is served in January 2012. Steve from abc mobile company argues that the contract was signed on 23 february 2008 and that it’s a 24 month contract and that as such the contract ends on 23 February 2010. And furthermore in light of this the debt will only prescribe on 23 February 2013!!! Now, I’m speechless. Well, I’d never is the sigh! The Act is very specific about when prescription begins to run and furthermore there has been about 25 Supreme Court of Appeal cases which confirm when prescription begins to run. Prescription begins to run when the debt becomes due, the debt becomes due when the debtor fails to make payment, I.e in this specific case the debt became due on 30 July 2008, prescription runs from this date and not the date when the contract ends. So in practice this debtor becomes eligible for prescription on 30 July 2011.
When Steve from xyz mobile gives you such layman’s perspective on prescription, don’t be discouraged and certainly don’t give up! You go back with rebuttal or replication!!!
Happy hunting!!!

**Citizen X** · 15-Jun-12, 04:38 PM

How to challenge listing on credit bureaus, on what grounds to challenge such listings and the new retention periods
Dear Rocktheboat ,
I think the email I sent you earlier today clarifies your legal position adequately! I think many other people may face a similar predicament to post the following.
But, FIRST, I like the name ‘Rocktheboat!’ One of my favourite songs, ‘satisfy my soul: Bob Marley articulates how he doesn’t like his boat to be rocked! "Satisfy My Soul"Oh, please don't you rock my boat (don't rock my boat) 'Cause I don't want my boat to be rockin' (don't rock my boat)I'm telling you that, oh, oh-ooh, wo-o-wo! I like it - like it this (I like it like this, I like it like this) -So keep it steady, like this. For every little action there's a reaction.”
Now, for this current matter:
1. Your argument does indeed have merit! Let me explain as follows:
2. If you had not paid that personal loan debt, I would have been able to successfully claim extinctive prescription for you and have that debt completely extinguished. This simply means that had extinctive prescription been claimed, the debt would have been completely written off. The creditor then would have been obligated to update all systems including credit bureaus accordingly on the simple basis that derogatory remarks cannot exist for a debt that does not exist in law. If there’s no debt then it follows logically that there should be no derogatory remarks. This however, naturally, doesn’t apply to your individual situation as by your own admission you have in effect paid a debt which would have been eligible for an extinctive prescription claim;
3. For the sake of clarity i deem it necessary to distinguish between a payment profile and a listing, a payment profile stay on the credit bureau for 5 years where listings have varying periods of retention from 1 year to 10 years after which it must be automatically removed(the period of listing will depend on the type of listing). The only exception is where you have been liquidated in which case the listing can stay on the credit bureaus literally for an unlimited period of time!!!
4. Your main issue in dispute now is when was the debt listed on the credit bureaus and perhaps more importantly why it was not automatically expunged;
5. There are two pieces of law that applies in your individual case: 1: The National Credit Act 34 of 2005 and more relevant to your current predicament 2: National Credit Regulations 2006;
6. The National Credit Regulations of 2006 is called enabling legislation, it’s purpose is to give effect to the National Credit Act 34 of 2005;
7. We now need to identify the type of listing. The listing in your individual case is called a bank default listing and falls under the category of ‘adverse listing,’
8. Allow me to impress upon you that even a judgment debt listing can only be retailed on credit bureaus for 5 years after which it must be automatically expunged. Failure to do so would otherwise constituted an irregularity!
9. One of the reasons why there is often confusion as to the interpretation of a statute is simply because one person will be referring to a repealed section of the same act and another person will rightfully be referring to the new amended section of that same act. The secret in law is simply to keep updated with the latest amendments and proper interpretations thereof!
10. In the past the default listing of personal loan banking default adverse listing could only be retained on a credit bureau for 1 year from date of listing, this was found in chapter 3 of the National Credit Regulations 2006, section 17. There has however been an amendment! This amendment is referred to as “Amendment of the Regulations made in terms of the National Credit Act, 2005 (Act No. 34 of 2005) as published in Government Gazette No. 28864 Vol 491 on 31 May 2006”. In practice what this simply done was to add a new classification:”Adverse classifications of enforcement action Classifications related to enforcement action taken by the credit provide 2 years.” In practice to be listed for this 2 years the creditor must have handed over the account to an attorney or debt collector, so it will say:’handed over,’ I do know for a fact however that certain creditors don’t hand over the account at all but to punish you for the maximum period they inform the credit bureaus that it was handed over so that the listing can stand for 2 years.;
11. What to do now? You now essentially want to assert your rights
12. To do so you need to essentially formally complain to the National Creditor regulator about the listing itself, the circumstances surrounding the listing and further insist that your challenge to the listing must also be included on all credit bureaus so that anyone who lawfully makes an enquiry on your name gets both sides of the story, instead of just seeing the creditors adverse version of events.
13. What many consumers unfortunately are unaware of is that a financial institution has not complied with the NCA regulations if they don’t give you prior notice of their intention to list with the credit bureau and/or give you an opportunity to make arrangements to pay. You can rightfully complain about xyz bank on this ground and also put them to the proof of having given you such prior notice!
14. Here’s where it gets interesting! There is a body called the Consumer Credit Association. All there members have agreed not to remove a default listing even when you as the debtor have come forward and paid them in full!!!!! In general in this case you must first ask the creditor if they are a member of the CCA, and if they inform you that they are, you simply tell them that you want a signed letterhead stating that should you pay them in ful and final settlement they will give instructions to the credit bureau to remove the default listing. This is called a suspensive condition, it suspends certain rights and obligations until the fulfilment of an uncertain future event. If you get the signed letter, you then pay, upon paying the creditor then sends out instructions to the credit bureau
15. How do you do this: Firstly you can visit the NCR website, which is very informative, at www.ncr.org.za, their contact details are 0860 627 627 and the email address that you sent your complain to is complaints@ncr.org.za
16. How to phrase your complaint:

In subject box of your email: Complaint: ID No:0000000000

Body of your email

Dear Sir/Madam,

1. I refer to the above matter;
2. I hereby formally complain against the listing made by xyz bank against me regarding a personal loan account no:00000, listed on 10/05/2009;
3. My complaint is in terms of section 72 of the National Crefit Act of 2005 read in conjunction with the National Credit Regulations of 2006, section 20(1), (2) 7 (3)
4. The basis of my complaint is as follows:
4.1 Firstly, the credit provider xyz bank did not inform me beforehand of their intention to list the default. Thet are lawfully bound by section 72(1) of the NCA to inform me beforehand of this intention which they failed, alternatively neglected, alternatively refused to do. Section 72(1) reads as follows: “72 (1) Every person has a right to-(a) be advised by a credit provider within the prescribed time before any 30prescribed adverse information concerning the person is reported by it to a credit bureau, and to receive a copy of that information upon request.” I hereby complain that xyz bank has committed an irregularity;
4.2 Secondly, in terms of section 72(c) of the NCA I hereby challenge the listing by XYZ on the following grounds, it should have been expunged after 2 years from the date on which it had been listed. Section 72(c) reads as follows:”(c) challenge the accuracy of any information concerning that person-(i) that is the subject of a proposed report contemplated in paragraph (a); or(ii) that is held by the credit bureau or national credit register, as the case may be, and require the credit bureau or National Credit Regulator, as the case may be,to investigate the accuracy of any challenged information, without charge to the consumer; and(d) be compensated by any person who reported incorrect information to a registered credit bureau or to the National Credit Register for the cost of correcting that information.”
4.3 Thirdly I also want my challenge to be included on all credit bureaus.
Kindly revert and pleas advise accordingly.
Kind regards,
xyz

For a more detailed explanation with the actual retention period tables(before and after) see attached PDF

Attached Files

How to challenge credit bureau listings in practice!.pdf (173.0 KB, 3216 views)

**Citizen X** · 16-Jun-12, 11:46 AM

The covering letter and prescription claim precedent/template(as an email attachment)

Okay, so I’m being presumptuous! You now understand how extinctive prescription works, you also understand what will preclude you from successfully claiming extinctive prescription. You confident that none of the events that interrupt prescription apply to your case. The type of debt is one that becomes eligible for extinctive after a period of 3 years has elapsed from the date of your last payment. Section 11(d) is applicable for such debts. This is by and large: personal loans, credit cards, clothing accounts, vehicle finance,, cell phone accounts etc. You’ve made a quality decision to assert your rights, you good to go!

You need a covering letter and preferably two methods of service on the creditor and/or their attorney. I advocate email and personal service but email and registered mail will also work. Even though emails are classified as ‘data message,’ by the ECT and is admissible as evidence. A potential problem with an email is simply this, it will reflect in your sent items but the recipient can claim that it went directly to spam or that someone may have deleted. This is the rationale for two modes of service.

The covering letter(email)(You attach the modified extinctive prescription claim precedent/template)

Subject box: XYZ bank: Account number 123456: Id number: 0000000000

“Without prejudice and all rights reserved.”

1. I refer to the above matter and further to my attached extinctive prescription claim;
2. I hereby serve my extinctive “PRESCRIPTION CLAIM” on you with regards to a XYZ Bank account ,
3. In keeping with legislative requirements, industry generally accepted norms and good corporate governance, kindly process my extinctive prescription claim and confirm to writing on your signed letterhead that this debt is indeed prescribed and that your computer systems and credit bureaus have/will be updated accordingly with regards to this prescription claim.
4. I submit that the standard manner in which a prescription claim is processed is as follows: The creditor establishes when the last payment was made. The debt then becomes due and payable a month later. Should a period of 3 years elapse from the date of the last payment the debtor becomes eligible for prescription. The creditor ascertains if the debtor is listed on XDS, Experian and Transunion ITC. The credit establishes whether any events to interrupt prescription has transpired such as actual payments or acknowledgement of debt. Should these exceptions not apply, the creditor then confirms in writing on their signed letterhead that the debt is indeed prescribed, that they have/will update all credit bureaus and furthermore that they abandon their claim on this matter;
5. The last payment made on this account was on 30 July 2007, This debt became eligible for extinctive prescription on 30 July 2010 which I now formally claim.
Kindly revert and please advise accordingly
Kind regards,
Jack The Ripper
“Without prejudice and all rights reserved.”

**Citizen X** · 01-Aug-12, 11:18 AM

Food for thought!
The concept of prescription is not new at all. It originates from Roman law. It dates back to what is commonly referred to as �The era of early Roman Law(753 BC � 250 BC).� The earliest manifestation of prescription dates back to 450 BC to what is known as the �Twelve tables.� The law was literally written on metal plates and placed in the central business district of that day. Anyone could go and inspect this written law. In 448 BC extinctive prescription was not distinguished from acquisitive prescription. It noteworthy that the concept that one could obtain rights merely by the passage of time can be traced to The Law of the Twelve Tables. The Twelve tables were written on twelve bronze tablets which were strategically placed in the central business district of that day so that all could read its contents. Table six, law six reads as follows: �Immovable property shall be acquired by usucaption after the lapse of two years; other property after the lapse of one year.� So there it was for everyone to see, the simple passage of time could allow you obtain rights today, which as early as yesterday you did not enjoy!
I have conducted quantitative as well as qualitative research with regards to extinctive prescription claims. My focus is strictly and only debts that prescribe in 3 years provided that there was no payment and acknowledgement of debt during this time. This by and large includes personal loans, credit cards, retail apparel account etc. At this juncture I just want to highlight findings of my quantitative research conducted via a questionnaire of some 30 questions and 3086 respondents. 2653 , 86% provided that they learnt about extinctive prescription via the internet. 2356, 76% provided that they were contacted regarding a debt that was more than 5 years old. 788, 25% provided that after the fact of making a payment they realised that they essentially changed their own legal position to their own detriment by causing prescription to run afresh. They provide that they feel robbed and cheated!
Must we reinvent the wheel? Must we revert to the Twelve Tables style of law? Naturally the following is just for satirical gesture but if the following sign was posted at every bank, financial institution and major retailer. The aforementioned will either ensure that they sue out actual summons during this period or accommodate extinctive prescription claims which they are lawfully obliged to do!

**Mark101** · 08-Aug-12, 11:39 AM

Hi, I stumbled on to your thread and I must say thank you very much I am in the same predicament as most people who asked questions about Prescription and this has been a revelation. Thank you for your advice and the time you take to answer all the questions.

**Citizen X** · 23-Aug-12, 03:19 PM

Originally posted by Mark101

Hi, I stumbled on to your thread and I must say thank you very much I am in the same predicament as most people who asked questions about Prescription and this has been a revelation. Thank you for your advice and the time you take to answer all the questions.

Mark, it is truly I who am thankful that I'm in a position to help! I thank you for your very kind feedback, we need to start getting involved in public comments phases of all Bills. This is one way, you and I as ordinary South Africans can take ownership of our Country. All South Africans should become more involved, especially when there's a new Bill and the public is invited to comment. That's your chance to make a difference!!!

**Candice F** · 05-Sep-12, 10:22 AM

Hi,

Just wanted to publicly thank you for the excellent work you did to get all my matters sorted out, all 9 of them! You have been fantastic and kept me in the loop at all times, I appreciate it and gladly will recommend your services to anyone needing them.

I have a great sense of relief and can move on with my life without feeling threatend any longer!

Thank you very much once again!

Kind regards,
Candice

**Citizen X** · 26-Sep-12, 01:25 PM

A reintroduction to extinctive prescription
The case for extinctive prescription claims in South Africa
I have resolved to reintroduce extinctive prescription in an academically acceptable manner. To do so , one would have to have a source of references and some form of table of contents.
References: I will cite a full source of references at the end of this topic, it won’t be anything soon! In the interim, I’ve resolved to using footnotes to cite references.
Table of contents: I do have a table of contents, but it won’t be possible to include page numbers for the purpose of these posts, but you may accept that posts will follow the table of contents.
Posts in stages: I will make posts in stages, and number them i.e. Post 1

TABLE OF CONTENTS
Number	Item	Page
1	Introduction
2	Hypothesis
3	An Outrageous Question
4	The Prescription Act as a Statute
4.1	A Statute remains an active Statute until repealed
4.2	The National Credit Act and a sense of urgency, The Prescription Act 68 of 1969 and no sense of urgency
4.3	No definitional clause in 1969 Act
5.	Historical Framework
5.1	Prescription dates back centuries
5.2	Extinctive prescription forms part of South African Private Law
6	Interpretation of the 1969 Act
6.1	Statutory interpretation
6.2	Stages of interpretation of the 1969 Act
6.3	The concept of extinctive prescription
6.4	The common law position of extinctive prescription
6.5	Extinctive prescription in practice
6.5.1	Meaning of as soon as the debt is due
6.5.2	Meaning of debt
6.5.3	Debtor’s wilfully preventing creditor from becoming aware of the knowledge of the debt
6.5.4	Knowledge of the debtor
6.5.5	Corporate South Africa is by and large an exception to section 13 of the 1969 Act
7	The difference between an extinctive prescription claim and a special plea of prescription
7.1	Example of Plaintiff’s particulars of claim
8	The need to invoke extinctive prescription when claiming prescription directly from a creditor
8.1	A case in point
8.2	Remedy in cases where the creditor refuses to process an extinctive prescription claim
8.3	Debt review and extinctive prescription
9	A parallel between Public Law and Private Law
10	Professional ethics and an attorney providing a debt collector function
10.1	Estoppel
10.2	Law and a crisis of an ethical nature
11	Choice of research framework
11.1	Research design and methods
11.2	Quantitative research
11.3	Post mortem Questionnaire
12	Qualitative research
12.1	Background
12.2	The pre-determined approach
12.2.1	Mr A
12.2.2	Mr B
13	An investigative journalism approach
13.1	A gross abuse of the section 57 and 58 procedures of the Magistrates Court Act 32 of 1944
13.1.1	Mr F and an eighteen year old debt
13.1.2	The document Mr F signed
14	A theory as to why a potent statute can become diluted over time
14.1	Distortion of communication
14.2	A case in point
15	Findings
16	Recommendations
17	Conclusion
18	References
	Annexure A: Questionnaire

**Citizen X** · 26-Sep-12, 01:27 PM

Post 1 1. Introduction
This work will address the practical position of extinctive prescription claims in South Africa today. It will address the ease alternatively the difficult of claiming extinctive prescription in terms of section 11(d) of the Prescription Act 68 of 1969. It will reveal shortcomings in industry and the Prescription Act itself and perhaps more importantly it will make recommendations for the amendment of the 1969 Act. This work in and of itself is an impassioned plea to the South African Law reform commission to initiate the amendment of the 1969 Act. The purpose of such recommended amendments is to make the Act more meaningful and applicable to a debtor who is eligible for an extinctive prescription claim and simply wants to claim extinctive prescription. The finished product of this work includes: An extinctive prescription precedent, a recommended covering letter, a recommendation of how the Act should be amended, a recommended schedule where such a schedule would be preferred to an amendment, a recommendation for enabling legislation where enabling legislation would be preferred to an actual amendment of The Act or an addition of a schedule to the Act and a recommendation for a training program on extinctive prescription with specific learning outcomes. This essay will address debts which become eligible for an extinctive prescription claim after a period of 3 years has elapsed from the date of the debt becoming due without any events that interrupt prescription. For classification purposes the natures of these debts are: 1. personal loans, credits cards and vehicle finance providers by registered financial service providers, 2: Retail apparel and accessories provided by registered retail credit providers, 3: Furniture and household goods and appliances provided by registered retail credit providers and 4: Telecommunication goods, service and accessories provided by registered credit providers. My reference to creditor is by and large corporate South African banks, financial institutions and major retailers. This reference is not only essential but rather quite vital as I will demonstrate in this essay that by and large the provisions of sections 12(2), (3) and section 13[with the exception of section 13(b)] will not be applicable to these organisations alternatively will not find reference to any meaningful dispute where such organisations are the creditor. For the purposes of extinction of debt by the passage of time, sections 10 up to and including section 18 of the 1969 Act apply. What I’m about to postulate is at immediate odds with ‘SLRC Discussion Paper 126, Project 125, Scope of Review’(2011:5) where it is provided that, ‘The review is limited to harmonisation of prescription periods, and does not include a general review of prescription in general, or the extinction of debts by prescription in particular.’

2. Hypothesis

The Prescription Act 68 of 1969 appears to be an unproblematic South African Statute. This inference is drawn because the Act itself is fairly straightforward and the requirements for extinctive prescription are reasonably clear. The Act in and of itself does not answer many pertinent questions such as: How does one claim extinctive prescription? How does a creditor process an extinctive prescription claim? How does the finality and legal certainty which extinctive prescription is designed to promote get implemented? Does the creditor merely access the debtor’s account and add a note, “This debt is prescribed, the debtor has claimed extinctive prescription,” or does the creditor confirm to signed letterhead that a debtor has claimed extinctive prescription; the prescription claim has been processed, that the debt is prescribed, that the creditor abandons his claim and that all credit bureaus have or will be updated accordingly? The ultimate problem statement is: How does a debt, regardless of its monetary amount, which is eligible for extinctive prescription, becomes extinguished by prescription in practice to a point where a debtor legally owed a certain amount of money to a creditor yesterday to a point where after the fact of an extinctive prescription claim the debtor no longer owes the creditors any money whatsoever and there is certainty about this fact both to the creditor and to the debtor.

Given the overall aims set out above and for the sake of a clearly defined hypothesis, I have chosen a slight deviation from conventional hypothesis by dissecting my hypothesis into six problem statements.
1. Many financial institutions and major retailers don’t have rules, regulations, policy and procedure in place to process extinctive prescription claims;
2. Many financial institutions and major retailers cannot appreciate the difference between an extinctive prescription claim and a special plea of prescription;
3. Many debt collectors and attorneys acting on instruction of financial institutions and major retailers intentionally preclude a debtor from claiming extinctive prescription and engage in unethical conduct to get a debtor to unwittingly make a payment on a debt that would otherwise be eligible for an extinctive prescription claim. The debtor then unwittingly acts to his/her own prejudice by causing the prescription period to run afresh
4. Many debt collectors and attorneys acting on instruction of financial institutions and major retailers intentionally preclude a debtor from claiming extinctive prescription and engage in unethical conduct to get a debtor to unwittingly acknowledge debt that would otherwise be eligible for an extinctive prescription claim. The debtor then unwittingly acts to his/her own prejudice by causing the prescription period to run afresh
5. There is a training and development need for extinctive prescription in banks, financial institutions and major retailers. Many financial institutions and major retailers don’t know how to process an extinctive prescription claim. It’s not a case where they don’t want to process such an extinctive prescription claimbut more a case that they don’t know how to process an extinctive prescription claim simply because they received no adequate training on extinctive prescription.
6. Many financial institutions and major retailers are used to a situation where they enforce their rights to collect a debt either by using their own internal special collections department, a debt collector or an attorney. Consequently they are used to a situation where they sue out summons for a debt and in many cases easily obtain judgment as the debtor does not file a notice of intention to defend. The aforementioned are simply not used to a situation where a debtor attempts to enforce his/her rights with regards to extinctive prescription. An analysis of these presuppositions will highlight the plight of a debtor who merely wants his/her debt obligation to be extinguished by extinctive prescription based on what the law itself says.
Gilmore S (2011:1) states that, the art of practising law is not to know all the answers, but to know where to find the answers. In order to find the answers, the practitioner must know what to look for. In order to know what to look for the practitioner must be able to sift the facts at hand and to define the problem he or she is dealing with’ (V Tunkel & A de W Horak xi). Academic study should teach one the requisite skills to ‘sift the facts at hand’. However, one is still left with the problem of finding the authority that you need to substantiate your case or finding the written law that will back up whatever case you are making. The information lies in all the physical (both print and electronic) sources of our law — the common law; the legislation; the law reports; the books and the encyclopaedias.
I intend to substantiate my case.
3. An outrageous question
Reason with me! Is it necessary for us to reinvent the wheel by using the concept of the ‘Twelve Tables,’ to articulate that certain debts become eligible for an extinctive prescription claim alternatively prescribe after the passage of a certain period of time? In order to give full effect to this outrageous question alternatively satirical gesture, a Twelve Table equivalent would be a large notice board in every bank, financial institution and major retailer’s various branches stating that certain debts prescribe after 3 years has elapsed from the date which the debt became due alternatively the month after the date of the last payment, provided that no payments have been made within this 3 year period, no acknowledgement of debt has taken place and no summons has been sued out! There you have it! Our problem statement glaring at us from this page namely most debtors are unaware of their rights with regards to extinctive prescription and the actual procedure of processing an extinctive prescription claim are widely varied in Banks, Financial Institutions and major retailers. What we require here is simple standardization. Allow me to reason with you to a point where we all draw the same conclusions. To reason means to be able to identify and follow the arguments presented by specific thinkers (i.e. what claims are made or conclusions drawn and how they are substantiated [the premises]) and to be able to assess the quality and validity. UNISA(2012: vii). All reasoning is thinking, but not all thinking is reasoning. Copi (1969:4). Since valid inferences are inferences where the conclusion is logically entailed by the premises, interest in logic is focused on the study of logical entailment or consequence. All wood et al(1997:16). Reason with me!

4. The Prescription Act as a Statute

The Prescription Act 68 of 1969 is classified as a statute, alternatively legislation, alternatively an Act of Parliament, alternatively enacted law texts.^{^[1]} It may also be classified as original legislation. This Act was assented to on 23 May 1969 and commenced on 1 December 1970. It was gazette on 4 June 1969; Government Gazette number 2421 Volume 48, as at this time one could buy the Government gazette from any Post Office for 10 cents.^{^[2]} There is no doubt whatsoever that it is an authoritative source of South African Law by mere virtue of its classification as an Act. The 1969 Act is not an academic opinion neither is it an article in a law journal. It is for all practical intents and purposes the law.

4.1 A Statute remains an active Statute until repealed
Regardless of how the implications of its provisions may be accepted by creditors and debtors, it remains the law. The notion that corporate South Africa may find it to be unjust in so far as it brings about the extinction of a right to claim a debt after the passage of time, either by the debtor claiming extinctive prescription from the creditor or by the debtor filing a special plea of prescription in court, does not negate the fact that the Prescription Act is law and remains law. A law, an Act of parliament need not be just, reasonable or fair to be law. In fact we have a number of Acts which are perceived to be unjust, unreasonable or unfair. The Choice of Termination of Pregnancy Act 92 of 1996 is just one example. Many religious organizations have expressed outrage of the practical implications of this Act which allow for a woman regardless of her age to have an abortion legally. The outrage expressed is of no consequence to the Act itself nor does it change its status as Legislation. The 1969 Act should be understood from this perspective. It is a legitimate statute in much the same way as: The Criminal Procedure Act 51 of 1977, The Divorce Act 7 of 1979, The Wills Act 7 of 1953, The National Credit Act 34 of 2005 and the Consumer Protection Act 68 of 2008, to name a few. If one were to ask a simple question: What do the aforementioned have in common? The simple answer would be they are all statutes.

[1] Vide Prescription Act 68 of 1969 http://0-discover.sabinet.co.za.oasi...ument/NTL12110

[2] Vide http://0-discover.sabinet.co.za.oasi...Gov/gg2421.pdf. Date of use 3 July 2012

**Citizen X** · 27-Sep-12, 11:50 AM

Post 2
4.2 The National Credit Act and a sense of urgency, The prescription Act 68 of 1969 and no sense of urgency
The National Credit 34 of 2005 and its resulting regulations have impacted directly on litigation. A creditor must first send a letter of demand which is delivered to a consumer at his address before suing out summons. The Plaintiff’s Particulars of Claim will invariably contain the following or similar assertion (Particulars of claim will never start with this paragraph! It’s included here to demonstrate that the NCA is held in such high regard that even obligatory paragraphs need to be included in the Plaintiff’s particulars of claim):

5 The Plaintiff is entitled to approach the Court for an Order as contemplated in Section 30 of the National Credit Act of 2005 in that:

5.1 The Plaintiff issued a Notice to the Defendant in terms of Section 129 of the Act and delivered such Notice in the prescribed manner,
5.2Notwithstanding the above, the Defendant has not responded to the Notice, alternatively has responded to the Notice by rejecting the Plaintiff’s proposals;
5.3The time periods, as prescribed in Section 130 of the Act has lapsed;
5.4The Plaintiff has no knowledge of any debt review proceedings instituted by the Defendant as provided for in section 86 of the aforesaid Act.
With the commencement of the National Credit Act 34 of 2005, we have seen changes to Court Rules, changes to the how litigation should commence, a body which one can complain to for non- compliance by the creditor and Corporate South Africa developing policy documents and training programs to be compliant. This is in stark contrast to The Prescription Act.

4.3 No Definitional Clause in 1969 Act

On conducting a post mortem of this Statute with the precision of a surgeon about to conduct surgery, it was alarming to find that the 1969 Act does not include a definitional clause section nor does it have a preamble. A preamble is necessary to clarify the underlying philosophy of the Act. The next enquiry is then: What is the purpose of the 1969 Act? The purpose is found in the long title. In this case it simply states ‘To consolidate and amend the laws relating to prescription’.^{^[1]}The 1969 Act does have practical importance.^{^[2]} It should be the subject of greater theoretical analysis and it should not be seen as a technical and theoretically unrewarding aspect of statute law.^{^[3]} If it is accepted that the 1969 Act is a rule of law and further that there is some degree of uncertainty as to its interpretations by both creditors and debtors and further that there is uncertainty as to the difference between an extinctive prescription claim and a special plea of prescription, then it should at the very least be also accepted that some form of procedural-law mechanisms are required to give proper effect to the 1969 Act. Law means any law, proclamation, ordinance, Act of Parliament or other enactment having the force of law.^{^[4]}

5. Historical framework

5.1 Prescription dates back centuries
The concept of prescription is not new at all. It originates from Roman law. It dates back to what is commonly referred to as ’The era of early Roman Law(753 BC – 250 BC).’^{^[5]}The earliest manifestation of prescription dates back to 450 BC to what is known as the ‘Twelve tables.’ The law was literally written on metal plates and placed in the central business district of that day. Anyone could go and inspect this written law.^{^[6]} In 448 BC extinctive prescription was not distinguished from acquisitive prescription. It noteworthy that the concept, that one could obtain rights, merely by the passage of time can be traced to The Law of the Twelve Tables. The Twelve tables were written on twelve bronze tablets which were strategically placed in the central business district of that day so that all could read its contents. Table six, law six reads as follows: ‘Immovable property shall be acquired by usucaption after the lapse of two years; other property after the lapse of one year.’^{^[7]} So there it was for everyone to see, the simple passage of time could allow you obtain rights today, which as early as yesterday you did not enjoy!^{^[8]}
The nature and effect of prescription will always remain the essential point of departure. The first prescription time period was introduced by emperor Theodosius in AD 424. It was referred to as praescriptio longi temporis.^{^[9]} Roman Dutch writers were largely unanimous in postulating that prescription has a strong effect, extinguishing the obligation itself as well as the remedy.^{^[10]}
5.2 Extinctive prescription forms part of South African Private Law
The 1969 Act rightfully belongs to South African Private Law. The accepted wisdom is that South African Private Law was influenced by Roman Dutch Law which originated in Roman law itself. Extinctive Prescription as a lawful concept found its way into statute by way of The Prescription Act of 1943.^{^[11]} Before the commencement of the 1969 Act, Professor J C de Wet was given a mandate by the Law Reform Commission to prepare a paper in which recommendations were provided for amendment of the 1943 Act.^{^[12]} It was apparent that interpretation of the 1943 Act was problematic. Prof de Wet recommended a system of prescription where the actual debt would automatically become extinct when the complete prescription period had run its course.^{^[13]} Interestingly the predecessor the 1943 Act does have a definitional clause whereas the 1969 Act has none. In section 3(1) of the 1943 Act Extinctive prescription is defined as the rendering unenforceable of a right by the lapse of time.^{^[14]} Section 10(1)(d) of the 1969 Act is entitled ‘Extinction of debts by prescription.’ This section states that 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.^{^[15]} Section 11(d) of the 1969 Act is entitled Periods of prescription of debts and states ‘The periods of prescription of debts shall be the following: save where an Act of Parliament provides otherwise, three years in respect of any other debt.^{^[16]}’

[1] Loc cit n 4

[2] Loc cit n 4

[3] Vide MM Loubster. Extinctive Prescription. 1996. 1

[4] Loc cit n 4 Prescription Act 68 of 1969 & Vide s 2 Interpretation Act 33 of 1957. http://0-discover.sabinet.co.za.unisa.ac.za/document. Date of use 3 July 2012

[5] Vide Origins of South African Law Studyguide.2008. 44

[6] Op cit 49

[7] Vide The Law of the Twelve Tables http://www.constitution.org/sps/sps01_1.htm. Date of use 3 July 2012 et seq Law of the Twelve Tables http://www.britanica.com/ebchecked/t...-Twelve-Tables

[8] Confer Van Oven JC. Leerboek van Romeinsch Privaatrecht. (3rd ed 1948). 82

[9] Op cit page 4 MM Loubster

[10] Ibid page 5, confer De Wet Opuscula Miscellanea page 104

[11] Vide Prescription Act 18 of 1943 http://0-discover.sabinet.co.za.oasis.unisa.ac.za/document. Date of use 3 July 2012

[12] Infra n 18 Page 6

[13] Confer n 8 MM Loubster Page 7

[14] Supra n 16 s 3(1)

[15] Op cit n 4 s 10(1)

[16] Op cit n 4 s 11(d)

**Citizen X** · 27-Sep-12, 03:01 PM

Post 3 Ps if footnotes don't make complete sense in the previous two posts it's becuase the preface was not included and I copied cut and paste from the word document that had the preface, to resolve this problem, I have deleted the preface from the document I am currently copying, cutting and pasting from, it should make sense from here!
6. Interpretation of the 1969 Act
Its common cause, that one of the tasks of the Judiciary, is to interpret legislation. The accepted wisdom is that we look to the Supreme Court of Appeals for guidance when interpreting legislation. It’s furthermore accepted that words in legislation may not bear their ordinary dictionary meaning. This is why it’s not only essential but rather quite vital for a Statute to have a definitional clause. A mere definitional clause may well be part of the solution to easing an already burdened court roll in South Africa.
Section 165(1) of the Constitution of South Africa, states that the judicial authority of the Republic is vested in the courts.^{^[1]} The Judiciary performs an adjudicatory function. In order to perform this task satisfactorily, the judiciary is tasked with interpreting legislation and applying legal rules to any legal dispute which may be brought before it with the objective of imposing a sanction if it finds that a legal rule has been breached, enforcing a right or discharging an obligation. It is accepted that when one summarises a case four components prevail.1: Facts of the case, 2: The issues to be decided, 3: The findings of the court and 4: The reasons for the courts decision.^{^[2]}
6.1 Statutory interpretation
Statutory interpretation refers to the process of interpreting any Statute as well as the actual rules and principles that regulate such interpretation. The 1969 Act is still in operation, as such, it can therefore be interpreted. The legal authority of the 1969 Act has not changed neither has its effects been diminished by any Supreme Court of Appeals case. It should actually have more potency today as debt is in the public interest and we now living in the aftermath of the global economic meltdown. This economic meltdown had knock off effects on many countries including South Africa. Debt and all aspects of debt should be taken very seriously! The legal position is that all Legislation remains in force until either one of two things happen: the legislation is amended and repealed by the Legislature, or the Legislation is amended and declared unconstitutional by the court.^{^[3]} Statutory interpretation lacked a meaningful process before 1994. The result was the inevitable application of conflicting rules, principles and methods.^{^[4]}

6.2 Stages of Interpretation of the 1969 Act

I support the contextualist method of interpreting a Statute. This is an interpretative method that focuses on the broader context of legislation. This will always be subject to guidance from the SCA on interpretation of a specific section. Confer: UNISA:IOS(2010:10). The primary rule of interpretation is therefore to determine the purpose of legislation and to give effect to that purpose.
6.3 The concept of extinctive prescription
A debt will be extinguished by the simple passage of time provided that a period of three years has elapsed from the date that the debt became due and no events to interrupt prescription have transpired. The most notable and detrimental events that cause the prescription period to run afresh from the date that such an event occurred is payment by the debtor and acknowledgement of debt by the debtor.
According to SALRC, project 125(2011:2), Prescription is a means of acquiring or losing rights, or of freeing oneself from obligations, by the passage of time under conditions
prescribed by law. It derived from classical Roman law and further developed under Justinian.
According to Loubser (1996:8), extinctive prescription simply concerns questions of fact, namely whether a particular period of time, prescribed by statute in respect of a particular obligation, has passed, and whether other conditions prescribed by statute for reliance on prescription have been met. If so, and if the debtor chooses to rely on it, prescription takes effect.
The intention of the legislators with specific regards to section 11(d) of the 1969 Act is clear. Extinctive prescription is to have a strong and effective effect.^{^[5]}

6.4 The Common Law position of Extinctive Prescription

Roman-Dutch Law as influenced by English Law became the Common Law of South Africa. The sources of Roman-Dutch Law are: The old writers, Legislation, Case Law, Collections of opinions and Custom.^{^[6]}
The South African Law Reform Commission was established in 1973. Section 4 of South African Law Reform Commission Act 19 of 1973 stipulates the objectives of SALRC are to do research with reference to all branches of the law of the Republic and to study and to investigate all such branches of the law in order to make recommendations for the development, improvement, modernization or reform thereof, including-
(a) the repeal of obsolete or unnecessary provisions;
(b) the removal of anomalies;
(c) the bringing about of uniformity in the law in force in the various parts of
the Republic;
(d) the consolidation or codification of any branch of the law; and
(e) steps aimed at making the common law more readily available.^{^[7]}
The Law Reform Commission has achieved much in the harmonisation of (Western) Common Law and Indigenous Law in South Africa.^{^[8]}

According to SALRC, the reasons given in common law for prescription of debts are the following:
(a) 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;
(b) Prescription relieves the debtor of having to defend a claim long after the event;
(c) A state of affairs which has existed for a considerable period of time ought to be legally formalised in the interests of certainty in legal affairs.
(d) In general the courts seem to favour 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.
(e) Creditors (claimants) and debtors (defendants) have competing interests. It is unfair that a debtor should be subject to an indefinite threat of being sued. It is in the interest of creditors to have as possible to institute a claim.^{^[9]}
According to Loubser(1996: 22), the main object of extinctive prescription is to create certainty and finality in the relationship between creditor and debtor after the lapse of a period of time, and the emphasis is on protection of the debtor against a stale claim that existed for such a long time that it becomes unfair to require the debtor to defend himself against it. The primary consideration is therefore one of fairness to the debtor.
In De Jager and others v ABSA Bank Bpk,^{^[10]} on 29 September 2000, the court examined the underpinnings of extinctive prescription. The court accepted that its ultimate purpose was to promote certainty in the affairs of people. Its purpose is to promote fairness towards a debtor.
In Uitenhage Municipality v Molloy 1998^{^[11]} 1 All SA 146 (A) the court provided that the rationale in the cases which have held that a creditor cannot “by his own conduct postpone the commencement of prescription” by refraining from satisfying the condition which would render a debt due and payable, apply equally where the creditor has failed to take or initiate the steps which fall within his or her power to make it possible for such a condition to be satisfied. One of the main purposes of the Prescription Act is to protect a debtor from old claims against which it cannot effectively defend itself because of loss of records or witnesses caused by the lapse of time. If creditors areallowed by their deliberate or negligent acts to delay the pursuit of their claims without incurring the consequences of prescription that purpose would be subverted. In the headnote of this case, at page 140, the editor’s summary articulated that one of the main purposes of the Prescription Act 68 of 1969 was to protect the debtor from old claims against which he could not effectively defend himself – If creditors were allowed by their deliberate or negligent act to delay the pursuit of a claim without incurring the consequences of the prescription, that purpose would be subverted.
Loubser(1996:22), eloquently states that the policy objectives of extinctive prescription have been justified in glowing terms by story: ‘ laws, thus limitating suits, are found in the noblest policy. They are statutes of repose, to quite titles, to suppress frauds, and to supply the defiency of proofs arising from the ambiguity and obscurity or the antiquity of transactions. They proceed upon the presumption that claims are extinguished, or ought to be held extinguished, whenever they are not litigated in the proper forum within the prescribed period. The quicken diligence by making it, in some measure, equivalent to right. They discourage litigation by bringing in one common receptacle all the accumulations of past times which are unexplained, and have now, from lapse of time, become inapplicable. It has been said by John Voet with singular felicity that controversies are limited to a fixed period of time lest they should be immortal while men are mortal-ne autem lites immrtales essent, dum litigantes mortals sunt.’

[1] Vide Constitutional Law Study Guide. 2008. Muckleneuk. Pretoria. UNISA. Page189

[2] Supra n 22: confer: page 11

[3] Vide Interpretation of Statutes Study Guide. 2010. Muckleneuk. Pretoria. UNISA. Page 20

[4] Op cit n 24 page 32

[5] Vide Standard General Insurance Co Ltd v Verdun Estates (Pty) Ltd 1990 2 SA 693 A ; Cape Town Municipality v Allianz Insurance Co Ltd 1990 1 SA 30 (C); Protea International (Pty) Ltd v Peat Marwick Mitchell & Co 1990 2 SA 199 (A)

[6] Vide The origins of South African Law Study Guide.2008. Muckleneuk. Pretoria. UNISA. Page 124

[7] Vide South African Law Reform Commission Act 19 of 1973. http://www.salawreform.justice.gov.za.Date of use 4 July 2012

[8] Supra n 27 Page 157

[9] Vide Discussion paper 126. Project 125. Prescription Periods. 2011. Page 11.(taken verbatim) http://www.salawreform.justice.gov.za.Date of use 4 July 2012

[10] Vide De Jager and others v ABSA Bank Bpk 2000 4 All SA 481 (A)

[11] Vide In Uitenhage Municipality v Molloy 1998 1 All SA 146 (A)

**Citizen X** · 01-Oct-12, 10:54 AM

6.5 Extinctive prescription in practice
6.5.1 Meaning of as soon as the debt is due
Section 12(1) of the 1969 Act provides that prescription shall commenceto run as soon as the debt is due. In Deloitte Haskins & Sells Consultants (PTY) LTD v Bowthorpe Hellerman Deutsch (PTY) LTD at page 527,^{^[1]} the court held that s 12(1) of the Prescription Act, which provided that 'prescription shall commence to run as soon as the debt is due', meant that there had to be a debt immediately claimable by the debtor or, stated another way, that there had to be a debt in respect of which the debtor was under obligation to perform immediately: prescription could not begin to run against a creditor before his cause of action was fully accrued, i.e. before he was able to pursue his claim.
Qualitative research revealed that in Mr A, B, C and Miss C’s case, the debt became due when they failed to make payments on their accounts.^{^[2]} Mr A’s ... account became due when he failed to make a payment in January 2007. The last payment he made was in December 2006. Mr B’s ....account became due when he failed to make a payment in March 2008, his last payment was made in February 2008. Mr C’s .... Personal Loan account became due in January 2008. The last payment he made was in December 2007. Miss C’s ....., Vehicle finance account became due in May 2007. The last payment was made in April 2007.

In all of these cases, the creditor did not sue out summons despite the facts that their telephonic and letter demands were been ignored. The creditor should have sued out summons at the earliest instance but within three years from the date of the debt becoming due.

According to SALRC, The Prescription Act, contains no definition of the term “due” and the courts have held that the term must therefore be given a wide and general meaning, namely that of a debt “owing and already payable” or “immediately claimable”, or “immediately exigible at the will of the of the creditor”, or a debt “in respect of which the debtor is under an obligation to perform immediately”, or not to do something.^{^[3]}
6.5.2 Meaning of a debt
Qualitative research revealed that Mr A, B, C and Miss D were all debtors by virtue of the fact that they owed money to a bank, financial institution or major retailer. Collectively they owed money to ...........^{^[4]}
A debt is a noun and is defined as a sum of money that somebody owes. A debtor is a person, country, or an organisation that owes money.^{^[5]} A debtor cannot exist in a vacuum, there has to be a creditor. Creditor is a noun and is a person, company etc. that somebody owes money to.^{^[6]} According to Berry et al (2007: 197) a credit transaction arises from a purchase or sale, or the lending or borrowing of money which results in a debt payable at a later stage.^{^[7]} Section 55 of The magistrates Court Act 32 of 1944 defines debt as any liquidated sum of money due.^{^[8]}
In Electricity Supply Commission v Stewards and Lloyds of SA (PTY) LTD,^{^[9]} at page 341, HOLMES AJA stated the finding of the Judge a quo that the 1969 Act applies is undoubtedly correct. See s 16 of Act 68 of 1969. Although the 1969 Act views prescription from the point of view of the debtor in providing that a "debt" shall be extinguished by prescription after the lapse of a period of time, a "debt" is necessarily the correlative of a right of action vested in the creditor, which likewise becomes extinguished simultaneously with the debt…the date on which a debt "arises" is not necessarily the same date as that on which the debt becomes "due", although these two dates usually coincide.
It was common cause in this Court that a debt is ‘that which is owed or due; anything as money, goods or services, which one person is under obligation to pay or render to another.
Loubser(1996: 29) qualifies the meaning of debt as interpreted in Master v IL Back LTD.^{^[10]} The court stated ‘In considering the words, ‘debt,’ one considers their ordinary meaning and the context in which they appear and the general intention of the Legislature. The ordinary meaning of debt is ‘that which is owed and due; anything as money, goods and services which one person is under obligation to pay or render to another. It seems to me that in ordinary parlance, a debt is a firm obligation to pay, whether now or later. The notion of a possible conditional obligation to pay is at variance with this.’

[1] Vide Deloitte Haskins & Sells Consultants (PTY) LTD v Bowthorpe Hellerman Deutsch (PTY) LTD 1991 (1) SA 525 (A) at page 527

[2] Qualitative research. The full and further particulars of Mr A, B, C, D and Miss E have been disclosed to SALRC to prove integrity of the research.

[3] Loc cit n 30 page 18.

[4] Supra n 34

[5] Vide Oxford Advanced learner’s Dictionary. Eight Addition. Oxford University Press. 2010. Page 376

[6] Supra n 37 page 344

[7] Vide Berry PR et al. About Financial Accounting. 2nd edition. Lexis Nexis Durban. Page 197

[8] Vide s 55 Magistrates Courts Act 32 of 1944. http://0-discover.sabinet.co.za.unisa.ac.za/document. Date of use 3 July 2012

[9] Vide Electricity Supply Commission v Stewarts and Lloyds of SA 1981 (3) SA 341 (A), confer Loubser(1996:29, para 4

[10] Loc cit n 8. Page 29

Debt: How to claim prescription in practice and how to enter a special plea

Debt: How to claim prescription in practice and how to enter a special plea

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