An analysis of s12(3) of the Prescription Act by the Constitutional Court

Mr Links only acquired these facts when he consulted doctors and gained access to hospital records. The Links judgment thus emphasises that a debt will only be due when the creditor has knowledge of the debtor and the facts from which the debt arose, and not a moment sooner.

The Constitutional Court held that the court of first instance appeared to have overlooked the question whether Mr Links had the full facts necessary for him to institute his claim on or before 5 August 2006. Before the end of August, Mr Links could not have had access to independent medical professionals nor could he have had knowledge of all the material facts that he needed before he could institute legal proceedings. Mr Links did not have reasonable grounds to suspect that his negligent treatment at the hands of the respondent’s personnel had caused the amputation of his thumb and the loss of function of his left hand. Prescription could therefore not have begun running before 5 August 2006. The Constitutional Court accordingly held that Mr Links’ claim had not prescribed, and in doing so, upheld the appeal and set aside the order made by the court of first instance.

The magnitude of the law of prescription is that there exists no condonation where the institution of the action in the court is out of time. Accordingly, a creditor may not institute legal action against the debtor to recover the debt once the period of prescription has run its prescribed course, as the debt would have become extinguished by prescription.

It is therefore crucial that creditors remain vigilant of the date that prescription commences to run and, in particular, the dates upon which a court may deem a debt to fall due.

According to s12(3) of the Act, “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 arriving at its judgment, the Constitutional Court considered the judgment of the Supreme Court of Appeal in Truter and Another v Deysel [2006] ZASCA 16, where the SCA held that “‘debt due’ means a debt, including a delictual debt, which is owing and payable. A debt is due in this sense when the creditor acquires a complete cause of action for the recovery of the debt, that is, when the entire set of facts which the creditor must prove in order to succeed with his or her claim against the debtor is in place or, in other words, when everything has happened which would entitle the creditor to institute action and to pursue his or her claim”.

The court also quoted from McKenzie v Farmers’ Co-Operative Meat Industries Ltd 1922 AD 16 at 23 where ‘cause of action’ was defined for the purposes of prescription to mean “every fact which it would be necessary for the plaintiffs to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved”.

In Minister of Finance and Others v Gore NO [2006] ZA SCA 98, the court emphasised that “time begins to run against the creditor when it has the minimum facts that are necessary to institute action” – knowledge is required to trigger the running of prescriptive time.

In the Links matter, the Constitutional Court found that until Mr Links had knowledge of facts that would have lead him to realise that there had been negligence and that this had caused his disability, he lacked knowledge of the necessary facts contemplated in s12(3) of the Act. Knowledge of the cause of his condition was a necessary material fact that a litigant wishing to sue in a case such as this would need to know.

As such, once the full facts necessary to institute a claim are present, a creditor must immediately proceed to institute legal action to mitigate against the risk of the claim prescribing.

Co-authored by Boipelo Diale, candidate attorney