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

[Citizen X]

“de boniis propriss”


I recently had to study two very lengthy cases for academic purposes.



Little did I know that I would import an explosive idea from these two cases. An idea that could and should assist the unrepresented defendant in a case where summons is sued out for a prescribed debt in a case where the debtor has in writing prior to judicial process informed the creditor and/or their attorney that the debt is prescribed.



The foregoing does require a word of explanation [time permitting]…I’ll put something together and make a post in due course.

[Citizen X]

Sale of prescribed debt prohibited; collection of prescribed debt prohibited



The National Credit Amendment Bill 19 of 2014 has been signed into law.
Seeing that I don’t ‘google’ my Legislation or Bill[I obtain them from official sites], I’m confident that the following is highly accurate:

126B.Application of prescription on debt
(1)
(a) No person may sell a debt under a credit agreement to which this Act applies and that has been extinguished by prescription under the Prescription Act, 1969 (Act No. 68 of 1969).
(b) No person may continue the collection of, or re-activate a debt under a credit agreement to which this Act applies-
(i) which debt has been extinguished by prescription under the Prescription Act, 1969 (Act No. 68 of 1969); and
(ii) where the consumer raises the defence of prescription, or would reasonably have raised the defence of prescription had the consumer been aware of such a defence, in response to a demand, whether as part of legal proceedings or otherwise.
[Proposed amendment: S. 126B to be inserted by s. 31 of Act 19/2014 w.e.f. a date to be proclaimed]

It’s this last part of section 126B that I need to look into:

[Proposed amendment: S. 126B to be inserted by s. 31 of Act 19/2014 w.e.f. a date to be proclaimed]

It's the 'with effect from a date to be proclaimed,' that I'm looking into. Has section 126B taken effect? If so when? If not when?

[Citizen X]

I would like to take this opportunity to commend the Nimble Group, a debt collecting group, among other services rendered, for their stance that they have officially taken on prescribed debts.

I obtained the following from their website:

http://www.nimblegroup.co.za/news/prescription-and-the-changes-in-the-national-credit-amendments-act/

“Prescription relates to the extinguishing of an obligation (a debt) due to the passing of time.

To most South Africans, prescription refers to some medical document your doctor uses to authorise the dispensing of medicine by a pharmacy or clinic. Few South Africans are aware of the Prescription Act 68 of 1969 which relates to the extinguishment of a debt after a prescribed period of time. There are various rules which dictate the time period over which a debt may be considered extinguished or prescribed. There are also various actions which may interrupt or delay the period of prescription and cause a new period to start running afresh. Once one is aware of “prescription”, it is easy to find numerous articles and documents summarising, explaining and providing examples of the prescription of a debt.

The onus is on the consumer to “claim the defence of prescription”. Therefore, credit providers are legally entitled to collect a debt, even after the debt owing has technically prescribed (i.e. become extinguished), provided that the debtor has not raised the defence of prescription.

In May 2014, the President signed into law the National Credit Amendments Act (“NCAB”). S126B of the NCAB specifically relates to debt which has prescribed in terms of the Prescription Act. S126B requires the credit provider to cease collecting on prescribed (extinguished) accounts where the debtor raised prescription as a defence or where the debtor would have raised prescription as a defence had he/she been aware of this defence.

Nimble Group believes that we have the responsibility to educate our debtors on prescription and creating an awareness of this defence to assist our debtors in protecting and exercising their rights. Our website provides visitors with full access to the Prescription Act 68 of 1969, the National Credit Act and specifically S126B of the National Credit Amendments Act (refer to our Resources page). We have sent our debtors SMS’s requesting that they visit our website to gain an understanding of S126B, prescription and the effects this amendment may have on their accounts. Should a debtor consider that his/her account may be prescribed, we have provided an easy to complete “prescription claim form” on our Accounts Enquiry page where debtors can submit their claim. These claims will be assessed and feedback provided to the debtors.

It is our goal to continue to ensure that our debtors are made aware of the defence of prescription. We encourage our debtors to acquaint themselves with their rights in respect of the Prescription Act and the National Credit Act, seek advice from debt counsellors, legal or financial experts and fully understand the nature of prescription and the effect this may have on their accounts.”[1]



Well done NimbleGroup! This is ethical practice! This is in keeping with the term profession which in latin is professio and means to make a public promise or statement.

---

[1] Nimble Group “prescription news” http://www.nimblegroup.co.za/news/pr...mendments-act/ date of use 11 November 2014

[Citizen X]

I’m not one to bask in my own glory and I’m not doing so right now!

[“I don’t need to have NO ambition, you know, I only have one thing that I’d really like to see happen, I’d like to see mankind live together Black, White, Chinese and anyone!”]


I’m merely reflecting with the benefit of hindsight. When I posted my first thread on extinctive prescription I was acutely aware that prescription strictly and only could be raised as a defence in court by way of a special plea.



I coined the phrase ‘extinctive prescription claim'(I need to qualify this before my detractors take a bite at me.)When I say I coined the phrase I mean claiming prescription directly from the creditor and/or their attorney as opposed to raising it as a special plea in court,’

I went through a process of literally arguing this concept with many CEO’s of banks and other financial institutions(have tons of emails to prove this). My premise was simply that if you demanding payment and if one has a comprehensive answer such as ‘the debt is prescribed and even if you do sue out summons, your action will dismally fail and you will be wasting the court’s time.’ It was the idea of completely resolving a matter before it even reaches the judicial process.

If one looks at the internet record, there were very few articles or writing on extinctive prescription and its benefits to debtors before 2011. In stark contrast the internet is literally saturated with articles on extinctive prescription today.
The power of TFSA created great awareness about extinctive prescription.
Shortly after 2011, I made written submissions to the South African Law Reform Commission about the amendment of the Prescription Act in favour of debtors, for the recognition of an ‘extinctive prescription claim,’ that day has arrived. I just didn’t apply my mind properly to which Act should be amended. As it were the NCA was amended

Originally posted by Vanash Naick 26 September 2012
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.

26 September 2012 http://www.theforumsa.co.za/forums/s...ial-plea/page2 #12

Originally posted by Vanash Naick 26 September 2012
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
26 September 2012 http://www.theforumsa.co.za/forums/s...ial-plea/page2 #12

I feel vindicated that section 126B has been inserted to the NCA by way of amendment:



Sale of prescribed debt prohibited; collection of prescribed debt prohibited



The National Credit Amendment Bill 19 of 2014 has been signed into law.
Seeing that I don’t ‘google’ my Legislation or Bill[I obtain them from official sites], I’m confident that the following is highly accurate:

126B.Application of prescription on debt
(1)
(a) No person may sell a debt under a credit agreement to which this Act applies and that has been extinguished by prescription under the Prescription Act, 1969 (Act No. 68 of 1969).
(b) No person may continue the collection of, or re-activate a debt under a credit agreement to which this Act applies-
(i) which debt has been extinguished by prescription under the Prescription Act, 1969 (Act No. 68 of 1969); and
(ii) where the consumer raises the defence of prescription, or would reasonably have raised the defence of prescription had the consumer been aware of such a defence, in response to a demand, whether as part of legal proceedings or otherwise.
[Proposed amendment: S. 126B to be inserted by s. 31 of Act 19/2014 w.e.f. a date to be proclaimed]

It’s this last part of section 126B that I need to look into:

[Proposed amendment: S. 126B to be inserted by s. 31 of Act 19/2014 w.e.f. a date to be proclaimed]

It's the 'with effect from a date to be proclaimed,' that I'm looking into. Has section 126B taken effect? If so when? If not when?

The credit goes to TFSA (and rightfully so), without which none of this would have even had been possible.

I therefore owe a debt of gratitude to Dave for giving autonomy with this thread.

[IanF]

Well done m'lud you have achieved greatness

[Citizen X]

Well done m'lud you have achieved greatness

Ian, WE TFSA have achieved something here

Ian, I admire your use of classic English i.e "m'lud" many are striving for this title and many are obsessed with titles. A title has never meant anything to me, I merely want to be of useful service to my fellow South Africans.

[Blurock]

Well done Vanash.

I have not followed the thread and may be therefore totally stupid as to what has gone before.
What I don't understand is that if someone owes me money and I eventually get summons against him, he can duck and dive until the debt is prescribed and then be resolved of all debt? Am I coming to the wrong conclusion here?

[Citizen X]

Well done Vanash.

I have not followed the thread and may be therefore totally stupid as to what has gone before.
What I don't understand is that if someone owes me money and I eventually get summons against him, he can duck and dive until the debt is prescribed and then be resolved of all debt? Am I coming to the wrong conclusion here?

Afternoon Blurock. Absolutely not! The events that interrupt prescription still exist. Judicial process is one of them, provided that you sue out summons on time, prescription stops running completely once summons is sued out. It is also still interrupted by an acknowledgement of debt and a payment within that 3 year period. Have a look at the National Credit forum, you'll see an interesting new thread!!!

[overmyhead]

Hi,

I received a summons a few days ago for a debt from a vehicle tracking company. This is from a 36 month contract entered into in December 2008, on which no payments were made from June 2009, as I had sold the vehicle. I honestly thought the policy had been ceded to the new buyer, as I contacted them about it at the time. In the summons, they state that I "repudiated the contract, which repudiation they accepted" on 1 October 2010. To my mind, this means that this is when they consider the debt as having fallen due? The contract contained a clause saying that on cancellation I will be liable for the entire 36 months fees, so would that also fall due immediately on this acceptance of repudiation?


In any case, I am entering my notice of intention to defend tomorrow, and intend to raise a special plea of prescription of the debt. My concern is this -- There is a clause in the contract stating that the debt will not prescribe for a period of 6 years:

"The customer expressly agrees that no debt owed to ** by the customer shall become prescribed before the passing of a period of 6 (six) years from the date the debt falls due".

WHAT? Is that allowed? Surely then all contracts will contain a little clause that no one notices saying that the debt can't prescribe for however long they please??! Can I still claim prescription?

Any advice will be greatly appreciated!

Thanks, Fi

[Citizen X]

The short answer is prescription does apply. It must work if your pleadings are correct. You say you received a summons a few days ago. I’m not sure if you received a combined summons or the most likely one given the description of the debt a simple summons aka summons claim in respect of debt or liquidated demand. It calls on you only to enter your notice of intention to defend within a certain time which you have done. The Plaintiff must then file what is called a declaration(the very same things as a particulars of claim).

The further specific thing you mention is the unlawful clause. The short answer is that one of the requirements of any valid contract is that it’s very purpose, objectives and conclusion must be unlawful. It also can’t go against public policy or the ethos of other specific legislation created to cater for certain debts[National credit Act 34 of 2005(NCA)]. It also cannot mandate what a specific piece of legislation should be subject to. The Prescription Act 68 of 1969 is not subject to their clause. It speaks with legislative authority. Your case is further strengthened by the fact that the debt is prescribed, a new section has been inserted into the National Credit Act(among many others) to cater specifically for the prescription of debts and all matters incidental to it to such an extent that it says that no person can collect a prescribed debt or sell a prescribed debt.
Hope this helps