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When debt becomes rotten fruit

IN a judgement handed down recently by the High Court in the case of Howson vs Cameron HH141/18, the judge dismissed a claim that had been brought by Howson, the plaintiff, against Cameron, the defendant, on the basis of prescription.

Tichawana Nyahuma,Lawyer

In that case, the parties, who were siblings, had on June 30, 2008 entered into an agreement in terms of which the plaintiff sold her shares to the defendant for the price of US$240 000 in a company they jointly owned.
The defendant only paid US$40 000, leaving the balance of US$200 000 outstanding. That balance was to be paid in five equal instalments within a period of five years. The last instalment was therefore due on or before January 1, 2013, as the agreement was effective from January 1, 2008, even though it was signed on June 30, 2008.
Suffice it to say, the defendant did not pay the said balance, hence was sued. In his defence, the defendant invoked a principle of law known as prescription, which is the pith of this discussion and to which I now turn.
In medical parlance, the word “prescription” is a noun that refers to an instruction that is issued by a medical practitioner authorising a pharmacist to supply a particular medicine to a patient. Put simply and differently, it is a doctor’s note advising a patient the type of medication to get. Equally, “to prescribe” is the verb that talks to the process of issuing the said prescription.
However, in legal jargon, “prescription” and “to prescribe” are altogether, totally different kind of birds when likened to “prescription” and “to prescribe” as formulated and used in the medical field.
Legally speaking, “prescription” denotes the role that time plays in the making or terminating of certain legal rights, whereas “to prescribe” is the declaration that a certain right is no longer legally claimable due to the expiration of time. The right will be said to have prescribed due to effluxion of time.
According to author GB Bradfield in the book, Christie’s Law of Contract in South Africa, the aim of prescription “is to promote certainty in the ordinary affairs of people”. In this discussion, I wish to focus attention on the legal meaning of “prescription” and “to prescribe”.
When looked at through the spectacles of civil law, prescription is seen as being divided into two broad classes, namely: acquisitive and extinctive prescription. Acquisitive prescription, as the name itself suggests, refers to the acquisition of things or rights by the passage of time.
The simplest example I can name to illustrate the point is that of private land, including any permanent improvements thereon such as a house or some other commercial buildings. I have deliberately used the expression “private land” because state land, as a rule, cannot be acquired or lost by prescription. Acquisition by prescription occurs when a person occupies and or possesses another person’s property, be it movable or immovable, and does so freely and openly and as if he or she were the true owner of the property for a continuous and an uninterrupted period of 30 years.
This means that if the original owner were to seek to recover or as it is said in law, to vindicate the property after the expiration of the said 30 years, then the occupier or possessor of the property, as the case may be, may successfully resist the claim if he or she pleads that he or she acquired the property by prescription, acquisitive prescription.
On the other hand, extinctive prescription might be said to be the opposite of acquisitive prescription. Extinctive prescription, and again as its name implies, is the loss of property or rights due to the expiration or passage of time.
If the time within which to make the claim lapses before the debt or obligation is claimed, then the right to so claim is lost. The right will be said to have been extinguished by prescription, extinctive prescription.
So, while extinctive prescription runs against the creditor and in favour of the debtor, acquisitive prescription runs in favour of the debtor and against the creditor. Prescription is therefore a double-edged knife or two sides of the same bond coin.
Different rights and obligations have different prescription periods. In the case of what are known as ordinary debts, the prescription period in our country is three years. An ordinary debt is, for example, where X lends money to Y repayable by a stated date. If the date when the debt ought to have been paid comes and goes with X not having made a claim for that money and the period extends to more than three years, that debt may not be claimable if Y raises the defence of prescription.
Care must be taken as to what exactly is meant by “to make a claim”. Apparently, it is not by means of telephone calls, emails, letters, meetings with the debtor or other communications that are not court process demanding payment. At law, to make a claim is to cause the appropriate court process such as a summons to be issued out of the applicable court and ensuring that it is lawfully delivered to and received by the debtor on or before the last day when the debt is due to prescribe. The mere setting into motion of the court process without delivering same to the debtor is not sufficient to defeat prescription.
Note, however, that even if the claim actually prescribes or, if you want, becomes a rotten fruit, but somewhere during the period when time was being counted or in legal language, when prescription was running, the debtor either expressly or tacitly acknowledges that he or she is liable for the debt, then that means the period of prescription would have been interfered with. That is to say, the running of prescription would have been interrupted and the prescription period will start to run anew from the date of such acknowledgement of liability.
It has to be stressed that unless and until the creditor becomes aware of the identity of the debtor and the facts upon which the debt arises, prescription will not begin to run. The matter will be treated as if there was no debt that was due in the period prior to the creditor gaining knowledge of that information. But a careless creditor will be deemed to have been aware of the identity of the debtor and the relevant facts if, by reasonable care, he could have known those facts.
However, in the event that the debtor somehow mischievously and or deliberately prevents his creditor from becoming aware of the existence of the debt, he or she cannot hide under the canopy of prescription in the event the claim is brought outside what he or she considers to be the set prescription period for that particular claim.
Prescription only begins to run immediately after the debt or obligation becomes payable. However, if the debtor is outside the country, then prescription will not begin to run. It will lie in waiting until the debtor returns to the country.
The reason for this rule is logical. It is to prevent debtors from fleeing their creditors by escaping to foreign lands only to come back after the lapse of what would be the applicable prescription periods for their debts. But what exactly is a debt? Is it restricted only to money that is owed? The answer is a big no. According to the Prescription Act, “a debt includes anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise”.
Thus, if a person is unlawfully assaulted and injured by the police, he or she will have only eight months to make a claim against the police department for the damages sustained thereby.
If the claim is made after the expiration of the said eight-month period, the case may suffer a stillbirth in the event the police cry prescription. Nevertheless, where a person sustains injuries at the hands of another not being a member of the police service for no lawful cause such as self-defence, then the victim is at large to make his or her claim within a three year period.
With respect to bodily injuries or deaths arising out of road traffic accidents, claims against the insurers or whoever was the cause of the accident have to be intimated within a period of two years. Any such claim brought after the two-year period may be declined on the basis of prescription. However, claims with respect to damages to the motor vehicle or other property prescribe after the lapse of a period of three years.
All in all, the concept of prescription is largely intended as a defence weapon that may be deployed by a debtor to fend off inordinately long outstanding debts. To the creditor, the message is for him or her to take the necessary and appropriate steps to protect and or claim whatever rights he or she may have within a reasonable amount of time.
It is quite interesting that where a debtor fails to raise the defence of prescription but the court entertaining the case realises this, it is not for the court to bring this fact to the attention of the debtor. The court is not anyone’s advocate and it remains blind to prescription unless and until its beneficiary claims it. The Prescription Act actually says; “No court shall of its own motion, take notice of prescription”.
So this is how prescription generally functions in civil law. It is, in fact, a much deeper subject matter than has been adumbrated here so one is implored to confer with his or her lawyer before attempting to use prescription as a weapon.
In the field of criminal law, prescription also applies. It is simply that all crimes with the exception of murder, prescribe after the lapse of a period of 20 years unless some other period is provided for by another law.
In other words, a person who committed a crime more than 20 years ago may not be prosecuted for the offence because prescription would have run its course. But if the crime involved the intentional killing of a person, then even if the offence was committed more than 20 years earlier, the suspect can and will still be brought to book. Whether or not a conviction will ultimately ensue after the lapse of such a lengthy period of time is another matter.
Nyahuma is a local lawyer who writes in his personal capacity. — nyahuma.t@gmail.com

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