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

[Citizen X]

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.”

[Blurock]

What about when a debtor makes a written promise say after 6 months and he then does not keep that promise?

[Citizen X]

What about when a debtor makes a written promise say after 6 months and he then does not keep that promise?

A written promise is very detrimental to the debtor in many ways, firstly, it will be classified legally as a bill of exchange which prescribes in 6 years from the date it was signed, secondly, the creditor can use the 'provisional sentence,' procedure which is very similiar to summary judgement, evidence by both parties via affidavit, the provisional sentence summons is reserved for liquid documents such as cheques and promisory notes, thirdly, the creditor can go the summary judgement route, again, affidavit and the defendant must come to court strictly and only to state that he/she has a defence, where the magistrate/judge can see that their is no defence i.e. just delaying tactics, summary judgement will be granted immediately without trial!!!

[Citizen X]

6.5.3 Debtor’s wilfully preventing creditor from becoming aware of knowledge of the debt
Section 12(2) of the 1969 Act reads 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.^[1]
Quantitative research revealed that Banks, Financial Institutions and major retailers do have sufficient knowledge of such debt due to their information technology infrastructure.^[2] They have computer systems in place as well as support staff to immediately act on the existence of a debt that is due. 2542 respondents to a questionnaire, out of 3086 that responded, stated that they either had an account with a bank, major retailer or telecom/cell-phone provider. This is 82%. In all these cases their creditor had adequate information technology in place to inform them when a debtor stops paying.
6.5.4 Knowledge of the debtor
Section 12(3) of the 1969 Act reads, 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.
In Harold Gunase v Ramesh Anirudh^[3] 2011 ZA SCA 231, at paragraph 14 the court said section 12(3) imposes a duty on the creditor to exercise reasonable care to obtain knowledge of the identity of the debtor and the facts from which the debt arises. A creditor is not allowed to postpone the commencement of the running of prescription by his failure to take necessary steps.
Quantitative research revealed that 2976(96%) of the respondents provided that they have been contacted by the creditor or the creditor’s agent several years after making the last payment on their account(s). This in and of itself is prima facie evidence that if a creditor can contact you telephonically then there is no wilful conceal of a debtor’s identity. Creditors have adequate debtor information on their computer systems and are subscribers to either ITC Transunion, XDS or Experian. A simple trace alert will reveal the debtor’s current contact information.
In GERICKE v SACK 1978^[4] at page 830. DIEMONT JA, provided inter alia that, in order to establish the identity of the person on whom service is to be effected the sheriff will require the name and address of the debtor…. Our South African Law is not constant and enduring and is subject to amendment. The Magistrates Court Rules have been amended. Rule 9(3) accommodates various methods in which service of summons can take place. This includes:
1.To the said person personally or to his or her duly authorised agent: Provided that where such person isa minor or a person under legal disability, service shall be effected upon the guardian, tutor, curator orthe like of such minor or person under disability;
2. At the residence or place of business of the said person, guardian, tutor, curator or the like to some person apparently not less than 16 years of age and apparently residing or employed there: Provided that for the purpose of this paragraph, when a building, other than an hotel, boarding house, hostel or similar residential building, is occupied by more than one person or family, "residence" or "place of business" means that portion of the building occupied by the person upon whom service is to be effected;
3. At the place of employment of the said person, guardian, tutor, curator or the like to some person
apparently not less than 16 years of age and apparently in authority over him or her or, in the absence of such person in authority, to a person apparently not less than 16 years of age and apparently in charge at his or her place of employment;
4. If the person so to be served has chosen a domicilium citandi, by delivering or leaving a copy thereof at the domicilium so chosen;
5. If the plaintiff or his or her authorised agent has given instructions in writing to the sheriff to serve by registered post, the process shall be so served: Provided that a debt counsellor who makes a referral to court in terms of section 86(7) (c) or 86(8)(b) of the National Credit Act may cause the referral to be served by registered post or by hand.
6. Where the person to be served with any document initiating application proceedings is already
represented by an attorney of record such document may be served upon such attorney by the party initiating the proceedings.^[5]
It can never be successfully argued that Corporate South Africa is unable to reach a debtor by means of judicial service of summons.
In Minister of Trade & Industry of RSA v Farocean Marine (Pty) Ltd ^[6] at paragraph 35, the court stated that Section 12(3) thus aims to achieve a balance between these two opposing interests, and ensures that negligent, rather than innocent, inaction is penalised. Accordingly, the yardstick to be used in determining the standard of care required of the creditor is:“. . . to do no more than that what could be expected, in the circumstances, of a reasonable man. Jacobs v Adonis 1996 (4) SA 246 (C) at 253B.
According to Loubser(1996:102), section 12(3) applies where the creditor is ignorant of either the identity of the debtor or the facts from which the debt arises, or of both, and where the creditor could not have acquired the requisite knowledge by exercising reasonable care. The onus is on the debtor to show when the creditor knew or was deemed to know of the debtor’s identity and the incidence of this burden of proof does not alter merely because the facts happen to be within the knowledge of the creditor. Loubser correctly adds that the court will take cognizance of the handicap under which the debtor may labour where the facts concerning the creditor’s awareness are within the creditor’s exclusive knowledge, and in these circumstances less evidence will be required of the debtor to establish a prima facie case. Loubser(1996:103)


6.5.5 Corporate South Africa is by and large an exception to section 13 of the 1969 Act.

Banks, financial institutions and major retailers are juristic persons. They have natural persons in their employ. To this end the aforementioned can never be a minor, insane and it’s very rare that such corporate companies will be under curatorship. A juristic person can never be married to a natural person. It may however occur that a senior manager working for a juristic person is married to a natural person. It is unlikely that Banks, Financial Institutions and major retailers will have a partnership agreement with an unemployed person that is in debt. Quantitative research revealed that 90% of all respondents were unemployed when contacted by the creditor.

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[1] Loc cit n 4.

[2] Vide research analysis page of this essay and vide annexure

[3] Harold Gunase v Ramesh Anirudh 2011 ZA SCA 231

[4] In GERICKE v SACK 1978 (1) SA 821 (A) Page 830


[5] Vide Faris JA and Hurter E. The Students Handbook for Civil Procedure. 5^th Ed. Lexis Nexis. Durban. 2010. Page 160

[6]Minister of Trade & Industry of RSA v Farocean Marine (Pty) Ltd [2006] 1 All SA 644 (C)
To be continued