Post 9
8. The need to invoke extinctive prescription when claiming prescription directly from a creditor
Should we conclude that the 1969 Act has a strong extinctive prescription effect then it begs a simple question; why does a debtor need to claim extinctive prescription from the creditor? Alternatively, why does a debtor need to invoke section 11(d) of the 1969 Act?
The answer can be found in the simple fact that there is no law precluding a creditor from demanding payment on a debt several years after such a debt has become eligible for extinctive prescription. Two more specific answers can be formulated from section 10(3) of the 1969 Act. In the first place, Section 10(3) reads, 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. The immediate inference is that the only logical way to bring about the legal certainty that the 1969 Act is designed to bring about is for the debtor is claim extinctive prescription. I submit that the preferred manner of claiming extinctive prescription is in writing along with the ability to prove service on the creditor. To appreciate fully what section 10(3) is in essence saying one simply has to be cognisant of the provisions it names namely subsection 1 and subsection 2 and in particular subsection one. Subsection one reads, 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. Logical inference will have to dictate that if a debt will become prescribed after three years but that payment of debt will be regarded as payment and thus have the effect of causing prescription to run afresh that the debtor must do something to bring about certainty. This is claiming extinctive prescription.
In the second instance, section 17(1) and (2) provides that, A court shall not of its own motion take notice of prescription and further that 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. The court is not going to take judicial notice of extinctive prescription, should the defendant not raise prescription as a defence that the matter will simply commence on the merits of the particulars of claim. It is this provision of this Statute that allows me to conclude without any doubt that despite the strong effect of extinctive prescription, it needs to be claimed from a creditor and where a creditor sues out summons, it needs to be raised as a special plea. The following will demonstrate that a reputable debt collecting agency perceives extinctive prescription from this perspective.
Mr D had an …. credit card account. He signed an acknowledgement of debt on 31 August 2005; this caused prescription to run a-fresh from that date. In effect he became eligible for extinctive prescription on 31 August 2008. His debt was bought by ……. and handed over to……. They started demanded payment from Mr D. They were well within their rights to do so. Mr D was unaware of his rights. He came across my internet posts and requested my personal intervention. A limited power of attorney was drawn up. My mandate was as follows:
1. To obtain any and all statements pertaining to bank accounts where there is a direct or indirect dispute of the actual amount owing;
2. Complete any and all Prescription Claim documents in terms of the Prescription Act 68 of 1969 on my behalf;
3. Serve any and all Prescription Claim documents in terms of the Prescription Act 68 of 1969 on my behalf, to any creditor, attorney, debt collector, any bank, any financial institution, any company, business, natural person or juristic person whatsoever
4. To claim prescription, on my behalf, from any creditor, attorney, debt collector, any bank, any financial institution, any company or business, juristic person and/or natural person.
5. To state my case and/or argue any dispute(s) with regards to such extinctive prescription claim on my behalf.
6. To escalate any relevant matter to the Banking Ombudsman on my behalf, and state my case if and where necessary and only after consultation with me;
7. To file written complaints with any law society(where an attorney is involved) and unethical behavior is alleged only after consultation with me
8. To file any written complaint with the NCA regarding any non- compliance of any creditor that I have dealt with only after consultation with me

I subsequently served the extinctive prescription claim on ………. Their final response on a signed letterhead was as follows:-

“ Dear Sir,
We refer to above complaint received from your office. In terms of section 10(3) read with the provisions of section 17 of the Prescription Act 68 of 1969, a creditor is entitled to collect debts until such time as a debtor claims prescription. Your claim of prescription has been investigated and found to be valid. In consequence thereof we have now closed our file.”


My point of departure will always remain one of claiming extinctive prescription directly from a creditor. I reason as such because it is in essence the debtor and creditor which have a contractual relationship and not the debtor and the court, furthermore, if we accept that our courts are over- burdened, then this is one way of easing that burden as a creditor who after the fact of extinctive prescription being claimed by the debtor still sues out summons then they do so with the knowledge that they don’t have a cause of action.
This action of suing out summons should be visited by further penalties on the creditor such as a counter claim for damages which the courts should grant. This would be in the interest of justice!
8.1 A case in point
In civil proceedings the benchmark measure is on a balance of probability alternatively a balance of preponderance. In criminal proceedings the benchmark measure is proof beyond a reasonable doubt. On the assertion that a debtor can claim extinctive prescription directly from a creditor short of going to court, I would like to be subject to proof beyond a reasonable doubt.
Such proof will emerge by way of simple inference. Analysis of quantitative results showed that 96% of respondents were contacted by the creditor and/or debt collector regarding a debt that was eligible for extinctive prescription. These creditors did not go to court to enforce their rights i.e. Send the final demand letter to the debtor in terms of section 129(1)(b)(i) of the National Credit Act 34 of 2005 ; they did not sue out summons(depending on the amount claimed) either in terms of rule 5 and 6 of the Magistrates Court Rules; neither did they sue out summons in terms of Rule 17 of the Uniform rules of court.
In essence they utilising measures to collect the debt short of going to court, no litigation is involved in their debt collecting techniques. Simple logic will have to dictate that if they not going to court then; why should a debtor go to court to relieve him/her of his obligation in terms of extinctive prescription? The debtor too can use techniques, short of going to court, to claim extinctive prescription in writing directly from the creditor.


8.2 Remedy in cases where the creditor refuses to process an extinctive prescription claim
Several debtors who visited my internet site complained about situations where despite the fact of having claimed extinctive prescription directly from the creditor the creditor refused to process the extinctive prescription claim. This indifference clearly doesn’t bring about the legal certainty which extinctive prescription is designed to bring about.
Being cognizant of the fact that many debtors who approached me for advice were unemployed, the best remedy that I could prescribe was an affidavit in which the debtor attested to the fact that an extinctive prescription claim was served on the creditor and the creditor failed, alternatively refused alternatively neglected to process the bona fide extinctive prescription claim.



AFFIDAVIT


I, the undersigned
Mr A

States under oath in English that:

1.

I am an adult male of 33 years of age with identity number 0000000000, residing at 400 Fictitious Street, Eldorado Park, 2180.
2.

The facts contained herein, save where indicated otherwise, are within my own personal knowledge and are to the best of my knowledge and belief both true and correct.

3.
On 10 August 2008 I claimed extinctive prescription from XYX bank. I done so by email, telephone and by registered post. I sent a prescription claim letter via email to Steve Steve at the following email address: Stevefromxyz.bank@xyz.co.za and by registered post to: Steve Steve, XYZ Bank, Po Box 700, Johannesburg, 2000. I also telephonically claimed prescription from Steve at XYZ bank which Steve failed, alternatively neglected alternatively refused to acknowledge and/or process my bona fide extinctive prescription claim.




I know and understand the contents of this declaration.
I have no objection to taking the prescribed oath.
I consider the prescribed oath as binding on my conscience.



Mr A


It is hereby certified that the aforesaid declaration was signed and sworn in my presence
on this the ___ day of _______________ 2012, at ________________, the deponent having confirmed and acknowledged:-

a) That he knows and understands the contents of this declaration;
b) that he has no objection to taking the prescribed oath;
c) and that he considers the prescribed oath as binding on his conscience.


___________________________
COMMISSIONER OF OATHS

Full names: __________________________________________________ __________
Address: __________________________________________________ __________
Rank/office held: __________________________________________________ ____
Area for which appointed: ________________________________________________