By Sanette Viljoen
May I sue for debt that has already prescribed on the basis that the debtor must put forward the prescription argument?
It is important to understand the concept of prescription. Every time the debtor pays an instalment on the debt, acknowledges the debt, make a promise to pay or is summonsed, the three-year prescription period commences again from the beginning.
The National Credit Amendment Act 19 of 2014 was published in March 2015. Prior to this publication it often happened that legal steps were taken against debtors, while the claim had already prescribed in terms of the stipulations of the prescription legislation. The creditors then hoped that the debtor would pay because he was unaware of prescription. In this way it therefore happened that numerous claims that had already prescribed were in any case still exacted by creditors.
In regard to the majority of claim causes, a claim prescribes after three years from the date on which the debtor knew or should reasonably have known that a claim exists against him and that it is claimable. In the course of the three years of prescription there may not be any confession of guilt, written or verbally. No summons should have been issued and no promise of payment made.
The new stipulation in the National Credit Amendment Act has changed the situation dramatically. The Act now states expressly that exaction of a prescribed debt is forbidden.
A lawyer may therefore not sue if he knows the debt has prescribed, with the hope that the debtor is not aware of the prescription.
Debt collection agents and lawyers who harass and threaten consumers, while it is clear that the claim has already prescribed, or even commit fraud with attachment orders that force employers to make deductions with regard to claims that have already prescribed, are now expressly forbidden by the Act and it is a punishable offence should it take place.
The Amendment Act also places a ban on the purchase of prescribed credit agreements by these agents or lawyers
This is an important amendment which should be noted by creditors as well as debtors.