https://www.polity.org.za
Deepening Democracy through Access to Information
Home / Press Office / SchoemanLaw Inc RSS ← Back
Close

Email this article

separate emails by commas, maximum limit of 4 addresses

Verification Image. Please refresh the page if you cannot see this image.

Sponsored by

Close

Article Enquiry

Prescription: Where the creditor did not know the identity of the debtor and facts giving rise to the debt – A close look at Section 12(3) of the Prescription Act

Verification Image. Please refresh the page if you cannot see this image.
Close

Embed Video

Prescription: Where the creditor did not know the identity of the debtor and facts giving rise to the debt – A close look at Section 12(3) of the Prescription Act

8th December 2020

ARTICLE ENQUIRY      SAVE THIS ARTICLE      EMAIL THIS ARTICLE

Font size: -+

It is common knowledge that any other debts taking exception to Section 11(a) to (c) of the Prescription Act of 68 of 1969 (Prescription Act) extinguished when the action was not instituted within three years from the date of the incident. In Zamani v Minister of Police (12/2019) [2020] ZAECBHC 23 (10 November 2020), the High Court took a closer look at what would be considered as an exception to the rule.

The fact of the case

Advertisement

The Plaintiff was arrested on 2 March 2014 by the members of the South African Police Service (SAPS) acting without a warrant resulting in his detention that spanned approximately two months. The Plaintiff denied involvement in the offence, and SAPS opposed his release on bail, but the bail was granted. The Plaintiff managed to secure legal representation. Shortly before the charges, the Plaintiff faced had been facing were withdrawn in August 1014, the DNA results absolved the Plaintiff.

The Plaintiff instituted proceedings seeking to recover damages consequent upon his arrest without a warrant against the Defendant. On 14 December 2018 he served his Section 3(1)(a) Notice of intention to institute an action in terms of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 on the Defendant and served on the Provincial and National Commissioners of the South African Police Service, respectively, on 23 January 2019. The Summons was issued on 16 January 2019.

Advertisement

Defendant's Special Plea of Prescription

The Defendant filed a special plea of prescription contending that the claim has extinguished by prescription after the lapse of the three years from the Plaintiff's arrest. The Plaintiff was arrested on 2 March 2014 and commence action on 14 December 2018. That is three years after the date upon the debt fell due.

Plaintiff's defence to the special plea of prescription

The Plaintiff did not institute proceedings immediately because his legal representative never informed him that the actions of the members of the Defendant were unlawful, and he could claim damages against the Defendant. He or his legal representative at no stage during the criminal proceedings were provided with the relevant police dockets. He also never had sight of the statement made by the complainant.

Sometime in 2018, he tuned in to a radio station on which occasion a guest on the radio was educating the public on rights associated with police arrests and detention. It was then that he became aware that he could institute proceedings from an arrest that fell out of the law. He then approached his Attorney for legal advice; after that, the proceedings were instituted timeously.

Legal Position

In terms of Section 10(1) read with sections 12(d) and 12(1) of the Prescription Act, prescription commences as soon as the debt is due. The three year prescription period finds application in Plaintiff's claim unless the following circumstances prevent the running of prescription:

  • The debtor willfully prevents the creditor from coming to know of the existence of the debts,
  • The creditor does not know of the creditor and of the facts from which the debt arises; and
  • In respect of debts based on the commission of an alleged sexual offence.

The Plaintiff relied on section 12(3) of the Prescription Act by contending that he lacked knowledge that the conduct of the debtor that gave rise to the debt was wrongful and actionable. Furthermore, the Plaintiff would had known about the identity of the debtor and the facts from which the debt arose if he was provided with the relevant police docket. The Court found on behalf of the Plaintiff, and the Defendant's Special Plea of Prescription was dismissed with costs.

Conclusion

In essence, access to a police docket is pivotal for knowledge of the identity of the debtor and the date on which the creditor knew the facts from which the debt arose. However, the debtor bears the onus of proof to establish that upon acquiring knowledge of the identity of the debtor and facts giving rise to the debt, he acted timeously to institute an action. Contact an Attorney at SchoemanLaw for assistance.

Written by Petrus Khumalo, Candidate Attorney, Schoeman Law

EMAIL THIS ARTICLE      SAVE THIS ARTICLE ARTICLE ENQUIRY

To subscribe email subscriptions@creamermedia.co.za or click here
To advertise email advertising@creamermedia.co.za or click here

Comment Guidelines

About

Polity.org.za is a product of Creamer Media.
www.creamermedia.co.za

Other Creamer Media Products include:
Engineering News
Mining Weekly
Research Channel Africa

Read more

Subscriptions

We offer a variety of subscriptions to our Magazine, Website, PDF Reports and our photo library.

Subscriptions are available via the Creamer Media Store.

View store

Advertise

Advertising on Polity.org.za is an effective way to build and consolidate a company's profile among clients and prospective clients. Email advertising@creamermedia.co.za

View options
Free daily email newsletter Register Now