PRESCRIPTION: HOW CLAIMS QUIETLY DIE IN SOUTH AFRICA

In litigation, some of the most damaging risks are often the least visible. Prescription is one such risk. It does not announce itself, it does not depend on the strength of a case, and it does not yield to fairness or good intentions. Once a claim has prescribed, it is legally unenforceable, regardless of how compelling the facts may be.

For attorneys, prescription is a threshold issue. For clients, it is often the reason a matter never reaches court at all.

This article, explains how prescription operates in South African law, common mistakes clients make, and why early legal advice is critical to protecting your legal rights.

WHAT IS PRESCRIPTION

Prescription is governed primarily by the Prescription Act 68 of 1969. In essence, it sets strict time periods within which a legal claim must be instituted. If a creditor fails to act in time, the debtor is entitled to raise prescription as a complete defence.

Once a claim has prescribed:

• The court cannot hear the matter;

• The merits of the dispute are irrelevant;

• The claim is permanently extinguished.

Prescription is therefore not a procedural technicality. It is a substantive defence that frequently disposes of litigation at the outset.

WHY PRESCRIPTION IS A CRITICAL LITIGATION RISK

From a litigation perspective, prescription is often the first issue assessed when instructions are received. It can be raised as a special plea or dispositive defence and it is determinative of whether proceedings can proceed at all. For clients, this means that even well-founded claims may fail if legal action is delayed.

Courts apply prescription strictly to promote certainty and finality and not to adjudicate fairness after the fact.

TYPICAL PRESCRIPTION PERIODS

While prescription periods vary depending on the nature of the claim, the most common are:

Three (3) years: This applies to most contractual, delictual (including negligence and damages), and professional liability claims.

Longer periods: Certain limited claims prescribe after six (6) years (for specific debts); thirty (30) years (for judgment debts and some property-related rights).

Importantly, statutory claims may be subject to much shorter time limits, sometimes framed as referral, review, or notice periods rather than prescription as such.

WHEN DOES PRESCRIPTION BEGIN TO RUN?

Prescription begins running when the “debt is due” meaning the cause of action is complete and the creditor has knowledge of the material facts giving rise to the claim and the identity of the debtor.

It is crucial to note, knowledge of the law is not required. Legal advice is not required. The courts will often infer knowledge based on what a reasonable person ought to have known. As a result, prescription often starts running earlier than clients expect.

NEGOTIATIONS DO NOT STOP PRESCRIPTION

A common and costly misconception is that prescription is suspended while the parties attempt to resolve a dispute amicably.  This is incorrect.

Unless prescription is formally interrupted, it continues to run despite, settlement discussions, correspondence between parties, assurances of future payment, or attempts to “resolve matters internally”.

Good faith negotiations do not, on their own, protect a claim from prescribing.

HOW PRESCRIPTION IS INTERRUPTED

Prescription can be interrupted, but only in limited circumstances recognised by law. The most important are:

Service of legal process

Prescription is interrupted by the service (not merely drafting or issuing) of summons or application papers claiming relief.

Acknowledgement of liability

An express or tacit acknowledgment of liability by the debtor may interrupt prescription, but courts interpret this narrowly. Informal or ambiguous communications are rarely sufficient.

Relying on acknowledgments without legal advice is therefore risky.

COMMON REASONS CLAIMS PRESCRIBE

Prescription often arises because clients delay consulting attorneys while attempting informal resolution, assume time only starts running once they “decide to litigate”, rely on verbal assurances or informal undertakings, or conflate moral fairness with legal enforceability. By the time legal advice is sought, prescription has often already run, leaving no room for corrective action.

CLAIMS AGAINST THE STATE

Claims involving organs of state introduce additional complexity. Such matters often require compliance with strict notice provisions, exhaustion of internal remedies and adherence to administrative law principles.

Prescription may operate alongside statutory time bars, making early and informed legal strategy essential.

WHY PRESCRIPTION IS OFTEN DECIDED EARLY IN LITIGATION

Prescription is frequently determined either as a separated issue, on exception or special plea or without any evidence on the merits. This makes it a powerful defence and a decisive risk. A case that appears strong on substance may never proceed if prescription is successfully raised. It is important to note, that litigation is as much about timing as merit.

Prescription illustrates a broader truth about litigation: legal rights are not preserved by inaction. Delay, even if well-intended, can irreversibly undermine a claim. 

CONCLUSION

In South African law, time is not neutral. It actively works against unasserted claims. Prescription operates quietly, without warning, and without regard to how reasonable a delay may seem. Once it has run, courts are powerless to revive the claim.

For individuals and businesses alike, the message is clear: if you believe you have a claim, early legal advice is not optional – it is protective.

Our offices advise and represent clients across a wide range of litigation and dispute-resolution matters. Prescription risk is assessed at the outset of every instruction to ensure that claims are protected, strategically positioned and procedurally sound. If you are: considering legal action; involved in a dispute that has been going on for some time; or unsure whether your claim is still enforceable, early consultation can make the difference between a viable claim and one that has already prescribed. For assistance, contact us on info@rouxlegal.com and book a consultation.

By Bongiwe Radebe

(Associate)

21 January 2026

While every reasonable effort is taken to ensure the accuracy and soundness of the contents of this article, neither the writer/s of the article nor the publisher shall bear any responsibility for the consequences of any actions based on information and/or recommendations contained herein. The URA article material is for informational and educational purposes only.

This content is the property of URA. Whilst we encourage the sharing of our content for informational purposes, if you wish to copy and/or reproduce our content on your own platform and/or website, kindly ensure that proper credit is given to URA.