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

  1. #21
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    Post 5
    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.


    [1] Loc cit n 4.

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

    [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. 5th 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)
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    My single most important point in post 5 is this: If a debt collector or the creditor contacted you; then this is sufficient evidence that they have all your contact details!How else would they argue that they contacted you?
    So section 12(3) of the 1969 Act can never be said to be really applicable to corporate South Africa as they do contact you to demand payment, they can conduct a trace alert and they also have all your personal information on their computer systems. If your details have changed , a simple trace alert will reveal all your latest details
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    Quote Originally Posted by Vanash Naick View Post
    Post 5
    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.


    [1] Loc cit n 4.

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

    [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. 5th 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)
    With the benefit of hindsight, I now realise that I could have clarified far more than I actually did about section 13 of the 1969 Act! This work was subject to deadlines! I never had the complete benefit of time, I will tell you more about that later! Let me resolve as follows: Section 13 states:
    "13 Completion of prescription delayed in certain circumstances
    (1) If-
    (a) the creditor is a minor or is insane or is a person under curatorship or is prevented by superior force including any law or any order of court from interrupting the running of prescription as contemplated in section 15 (1); or
    (b) the debtor is outside the Republic; or
    (c) the creditor and debtor are married to each other; or
    (d) the creditor and debtor are partners and the debt is a debt which arose out of the
    partnership relationship; or
    (e) the creditor is a juristic person and the debtor is a member of the governing body
    of such juristic person; or
    (f) the debt is the object of a dispute subjected to arbitration; or
    (g) the debt is the object of a claim filed against the estate of a debtor who is deceased or against the insolvent estate of the debtor or against a company in liquidation or against an applicant under the Agricultural Credit Act, 1966;
    (h) the creditor or the debtor is deceased and an executor of the estate in question has not yet been appointed; and
    (i) the relevant period of prescription would, but for the provisions of this subsection, be completed before or on, or within one year after, the day on which the relevant impediment referred to in paragraph (a), (b), (c), (d), (e), (f), (g) or (h) has ceasedto exist,
    the period of prescription shall not be completed before a year has elapsed after the day referred
    to in paragraph (i).
    (2) A debt which arises from a contract and which would, but for the provisions of this subsection, become prescribed before a reciprocal debt which arises from the same contract becomes prescribed, shall not become prescribed before the reciprocal debt becomes prescribed."

    So, now you can see very clearly the point I'm trying to make, this section 13 may apply to very small creditors but it can never be said to apply to banks and major retailers. There are notable exceptions i.e. the debtor is outside the country overseas. This time spent overseas will not be included in the prescription period!

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    Post 6
    7. The difference between an extinctive prescription claim and a special plea of prescription.
    In Standard General Insurance Co Ltd v Verdun Estates (Pty) Ltd[1] the court endorsed the concept of ‘strong prescription.’ The inference being that the simple passage of time will extinguish a debt just as the 1969 Act says it will.
    There is a material difference in raising a special plea of prescription and claiming extinctive prescription. The former is claimed directly from the creditor by the debtor whereas the latter is raised as a special plea in Court. In law we use ‘precedents,’ such as the ‘notice of intention to defend,’ precedent. To this practical end, to promote certainty and finality, I developed a precedent which can be used to claim extinctive prescription directly from the creditor. I made such precedent freely available for use on the internet.[2]
    The result could never have been anticipated; literally hundreds of South Africans from many different provinces successfully claimed extinctive prescription using this precedent and received a signed letterhead from the creditor confirming the same in writing.
    I submit that a creditor who still sues out summons after the fact of an extinctive prescription claim with such a precedent should be visited with severe penalties in terms of costs of suit and damages. I qualify this by stating that such a creditor knows it does not have a cause of action, as the precedent invoked the Prescription Act and made it very clear that if summons is still sued out, a notice of intention to defend will be filed, a special plea of prescription will be raised and they will be a counter claim. As at today’s date, the court rolls at all our civil courts are already burdened. The Court should take a strict view where a debtor has claimed extinctive prescription from the creditor in writing and the creditor still sues out summons for a matter that has no prospects of success. The court should dismiss the claim, uphold the special plea, grant costs to the defendant as well as grant a defendant’s counter claim for damages for inconvenience of litigation on a matter that has no prospects of success.
    Section 17(1) of the Prescription Act makes provision for extinctive prescription to be invoked by any party to litigation and section 17(2) makes provision for the court to allow prescription to be raised at any stage of court proceedings.[3]
    This is where the concept of a special plea of prescription alternatively raising extinctive prescription as a defence has its proper place.
    According to UNISA(2011:61, 62), a plea on the merits deals with the merits of the plaintiff’s claim as set out in his or her declaration or particulars of claim, as the case may be. A special plea on the other hand, is a means of raising an objection on the basis of certain facts which do not appear in the plaintiff’s declaration or particulars of claim and has the effect of destroying or postponing the action. [4]

    The special plea can include the plea on merits as well as the special plea of extinctive prescription .A special plea of extinctive prescription is known as a plea in abatement. This is so because it will have the effect of destroying the plaintiff’s action.[5]



    [1] 1990 2 SA 693 A

    [2] Vide: http://www.theforumsa.co.za/blogs/entry.php/35-Debt-How-to-claim-prescription-in-practice-and-how-to-enter-a-special-plea; http://www.theforumsa.co.za/forums/showthread.php/10369-Debt-Legally-cancelling-a-debt-over-3-years-old; http://www.theforumsa.co.za/forums/showthread.php/11094-Summons-what-you-need-to-do? & http://www.theforumsa.co.za/forums/showthread.php/11428-Summons-notice-of-intention-to-defend-and-plea-in-practice?highlight=

    [3] Supra n 4: Section 17(1) & (2)

    [4] Supra n 47. Page 61 & 62.

    [5] Confer n 47. Page 62, para 5.
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    Diamond Member Citizen X's Avatar
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    Footnotes won't make any meaningful sense as I've resolved to break up a document into posts! That being said, A full list of references will be provided at the end of this work. I will then resolve to submit the entire PDF file as an attachment. This will be to prove research integrity and cite the relevant sources in a chronological manner
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    It's unfortunate that the footnote referencing doesn't do well in a clickable sense, but they certainly do the job from a referencing point of view.

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    Quote Originally Posted by Dave A View Post
    It's unfortunate that the footnote referencing doesn't do well in a clickable sense, but they certainly do the job from a referencing point of view.
    A very good morning to you Dave,

    The challenge I'm having is that I'm starting a new individual post by copying, cutting and pasting from an existing word document where the footnotes are automatically synchronized. The problem is that when you simply cut out a section as I have been doing in these preceding posts, they won’t always make sense especially when you say refer to n 4, when the person refers tries to do this, note 4 cannot be reconciled to what has been said. That said, when I make the final post which will be the full PDF doc, it will make sense. I chose to do it like this stages, so if there’s any question and/or queries, then it can be dealt with in a meaningful way
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    7.1 Example of Plaintiff’s particulars of claim(Annexed to simple summons)


    ANNEXURE “A”
    1. The Plaintiff and Defendant are the parties cited on the face of the summons to which these particulars of claim are attached. The defendant has chosen the address reflected on the face of the summons as domicilium citandi et executandi for the purpose of this action.
    2. In terms of a written Agreement concluded between the Plaintiff and Defendant, the Plaintiff at the Defendant’s instance and request, issued a credit card to the Defendant and afforded credit card facilities to the Defendant subject to the Plaintiff’s terms and conditions of use thereof, in terms whereof the Plaintiff lent, advanced and disbursed money to, and on behalf of the defendant.

    3.The material, expressed and/or implied alternatively tacit terms of the agreement are the following.
    3.1 The Defendant authorised the Plaintiff to make payment on the Defendant’s behalf in respect of all purchases of goods and/or services made and cash advances obtained by the defendant through the use of the credit card, or in respect of any other charges or disbursements arising from the use of the credit card and Defendant would be liable to the Plaintiff for such amounts:
    3.2 Any amounts due by the Plaintiff to the Defendant and the Defendant would be obliged to pay the Defendant at its card division, the amount stipulated on the monthly statement. In the event of the Defendant failing to deny his liability or raising a query regarding any debit on the account in writing within thirty (30) days of the date indicated on the statement as the payment due date, the defendant would deemed to have admitted his liability to the Plaintiff in respect of such a debt.
    3.3 In the event of the Defendant’s account reflecting a debit balance after the processing of any transaction referred to in paragraph 3.1 above, the defendant would be liable to the Plaintiff for interest thereon, capitalised monthly in arrears, on the daily balance outstanding from time to time.
    3.4 In the event of the Defendant breaching the terms and conditions of the Credit Card facility, the full amount, of the Defendant’s indebtedness to the Plaintiff, would immediately become due and payable to the Plaintiff;
    3.5 A certificate signed by any authorised employee of the Plaintiff, whose appointment and authority shall not be necessary to prove shall constitute prima facie evidence of the outstanding balance being due and payable by the Defendant to the Plaintiff;
    3.6 All payments made by the defendant will only be deemed to have been made when credited to the Defendant’s credit card account
    3.7 The Defendant agreed not to utilize the card in any manner which would result in the total amount owing on the account exceeding the credit limit which the Plaintiff which the Plaintiff had granted him in respect of the credit card.
    3.8 In the event of the Defendant failing to comply with any of the conditions of use of the Credit Card the full amount of the Defendant’s indebtedness to the Plaintiff would immediately become due and payable
    4. The agreement between the parties is subject both to the Usury Act 73 of 1968 and the National Credit Act 34 of 2005
    5. The Plaintiff has complied with all its obligations in terms of the agreement.
    6. The Defendant utilized the abovementioned credit card and in consequence thereof became indebted to the Plaintiff in the sum of R21 000 together with interest of 16% from 30/06/2005 to date of final payment, which amount is due and payable and which amount despite demand, the Defendant has failed, alternatively refused, alternatively neglected to pay.
    7. The Plaintiff is entitled to approach the court for an order as envisaged in section 130 of the National Credit Act 34 of 2005 in that
    7.1 The Plaintiff issued a notice to the Defendant in terms of section 129 and delivered the same in the prescribed manner;
    7.2 Despite this the Defendant has not responded to the notice alternatively has responded to the notice by rejecting the Plaintiff’s proposal
    7.3 The time periods stipulated in section 130 has lapsed
    7.4 The Plaintiff has no knowledge of any debt review proceedings instituted by the Defendant as provided for in section 86 of the national Credit Act 34 of 2005


    WHEREFOR the Plaintiff prays for judgement against the Defendant for:
    1. Payment of the sum of R21000
    2. Interest thereon at a rate of 16% from 30/06/2005
    3. Costs of suit
    4. Further and/or alternative relief






    7.2 Example of special plea

    IN THE MAGISTRATES COURT FOR THE DISTRICT OF JOHANNESBURG
    HELD AT JOHANNESBURG

    CASE NO: 6003/5103
    In the matter between:

    Bank A PLAINTIFF

    and

    MR B DEFENDANT


    DEFENDANT’S SPECIAL PLEA








    The defendant pleads as follows to the Plaintiff’s summons and particulars of claim

    1. AD SPECIAL PLEA: PLEA IN ABATEMENT

    KINDLY TAKE NOTICE that Defendant pleads that the debt for which summons was sued out is prescribed in terms of section 11(d) of the Prescription Act 68 of 1969 and further that the Defendant has claimed extinctive prescription from the Plaintiff

    The Defendant raises the defence of extinctive prescription. The Defendant pleads to this Honourable court that on this ground alone the Plaintiff’s action ought to be dismissed with costs.

    1. The Plaintiff’s claim is based on a credit card contract which was concluded on 20 January 2005. The defendant made monthly payments for the months of January, February, March, April and May of 2005. The defendant lost his job on 30 June 2005. On the 30 July 2005, the plaintiff’s claim fell due;
    2. The Plaintiff had three(3) years from the date on which the debt fell due( 30 July 2005) to legally collect the debt from the defendant which the plaintiff failed, alternatively refused, alternatively neglected to do;
    3. The debt prescribed on 30 July 2008. The defendant claimed extinctive prescription from the plaintiff on 10 August 2008 which the plaintiff either failed, alternatively neglected alternatively refused to acknowledge and/or process the defendants claim for extinctive prescription;
    4. The was no wilful concealment of the defendant’s identity and/or contact details from the plaintiff in terms of section 12(2) of the Prescription Act 68 of 1969
    5. Plaintiff’s summons was served on defendant on 15 February 2012 , which is more than three years after the date on which the claim arose, which such claim arose on 30 June 2005
    6. In the premises, the plaintiff’s claim is prescribed in terms of section 11(d) of the Prescription Act 68 of 1969.
    7. AD MERITS

    AD PARAGRAPH 1 THEREOF
    The defendant admits the contents of this paragraph
    AD PARAGRAPH 1 THEREOF
    The defendant admits the contents of this paragraph
    AD PARAGRAPH 1 THEREOF

    The defendant denies the contents of this paragraph and puts the plaintiff to the proof thereof. The defendant states his defence as extinctive prescription in terms of section 11(d) of the Prescription Act 68 of 1969. The defendant states and confirms for the record that he did claim extinctive prescription from the Plaintiff on 10 August 2008 which the plaintiff either failed, alternatively neglected alternatively refused to acknowledge and/or process the defendants claim for extinctive prescription

    Therefore the Defendant prays that the Plaintiff’s claim be dismissed with costs

    COUNTERCLAIM


    1.
    Brevitas causa the parties are referred to as in convention.

    2.
    Paragraphs 1 and 2 of plaintiff's particulars of claim are referred to as if specifically incorporated herein.
    3.
    The Defendant claimed extinctive prescription from the Plaintiff to attain the finality, alternatively closure, alternatively certainty, alternatively the extinguishing of the debt. The Defendant’s intention, by virtue of his extinctive prescription claim, was to create such certainty as to the status of the debt, that there could be no reasonable doubt whatsoever after the fact of the extinctive prescription claim that the debt is extinguished and is no longer collectable.
    4.
    The Defendant claimed extinctive prescription from the Plaintiff via registered mail, electronic mail and personal service. The intention was, that by invoking section 11(d) of the Act, the defendant would not have to contend with a situation where there remains uncertainty as to the existence of a debt.
    5.
    The Defendant claimed extinctive prescription from the Plaintiff to avoid a situation where in the absence of an extinctive prescription claim that can be proved, the Plaintiff sues out summons and the Defendant cannot prove that he claimed extinctive prescription. The Defendant claimed extinctive prescription from the Plaintiff to avoid a situation where he would have to file a notice of intention to defend, file a plea and appear in court.
    6.
    The Defendant has suffered damages in the form of injury to personality.

    7.
    7.1 Infringement of Defendant’s personality: The Plaintiff’s incessant telephonic and letter demands for payment after the fact of the Defendant invoking the Prescription Act and claiming extinctive prescription from the Plaintiff is an intentional infringement of the Defendant’s personality. The Plaintiff infringed the Defendant’s personality by continually alleging that Defendant owes the Plaintiff money. The Plaintiff is morally blameworthy for such personality infringement;
    7.2 Pain and suffering(Mental integrity): The Plaintiff’s incessant telephonic and letter demands for payment after the fact of the Defendant invoking the Prescription Act and claiming extinctive prescription from the Plaintiff is a negligent infringement of the Mental Integrity. The Plaintiff infringed the Defendant’s Mental Integrity by continually demanding payment. Such demands have placed unnecessary stress on the Defendant.
    7.3 Delictual liability of causing the Defendant to suffer inconvenience. The Plaintiff suing out summons after the fact of the Defendant invoking the Prescription Act and claiming extinctive prescription from the Plaintiff has caused the Defendant inconvenience. Such inconvenience, manifest in the Defendant taking off from work. The Defendant had to take off from work in order to consult with an attorney.

    Wherefore Defendant prays for judgment against Plaintiff for:
    a) Payment of R30 000
    b) Interest on the above amount at 15,5% a tempore morae
    c) Cost of suit.
    d) Further and/or alternative relief.



    Signed at Johannesburg on this _______________day of June 2012

    _____________________________
    Attorneys for Defendant
    XYZ
    10 Fictitious Street
    Soweto
    1820
    TO: The Clerk of the Court
    Johannesburg
    TO: Mr Shark
    ATTORNEYS FOR PLAINTIFF
    ADDRESS: XYZ Made up Street, Johannesburg, 2000

    Received copy hereof on this the
    _____ day of 2012

    _________________________________
    ATTORNEYS FOR PLAINTIFF
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    Post 8
    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[1]; they did not sue out summons(depending on the amount claimed) either in terms of rule 5 and 6 of the Magistrates Court Rules;[2] neither did they sue out summons in terms of Rule 17 of the Uniform rules of court.[3]
    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.





    [1] Vide National Credit Act 34 of 2005. http://0-discover.sabinet.co.za.oasi...ac.za/document.

    [2] Vide Faris J and Hurter E. The Student Handbook for Civil Procedure. Lexis Nexis. 2010. Page 157 & 158

    [3] Supra n 55.Page 75 & 76
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    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: ________________________________________________

    “Ubuntu is the essence of being humane" Desmond Tutu
    Spelling mistakes and/or typographical errors I found in leading publications.
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    sabbaticus

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