The Constitutional Court in the matter of Mtokonya v Minister of Police [2017] ZACC 33 dealt with the issue of extinctive prescription, in particular regarding whether section 12(3) of the Act requires a creditor to have knowledge of a debtor’s wrongful and actionable conduct, which gave rise to the debt, before prescription may start running against the creditor.

Although the Supreme Court of Appeal has pronounced on this issue in a number of cases, the CC has never had the opportunity of pronouncing upon it until now. This case gave the CC an opportunity to pronounce, once and for all, on this issue to settle the law.

In this case, the Applicant was arrested and detained by members of the Respondent on 27 September 2010. At the beginning of July 2013, the Applicant consulted an attorney, who after investigating the facts of his arrest and detention, informed him that he was unlawfully arrested and detained and as such had a civil claim for damages against the Respondent. The necessary notice was given to the Respondent in July 2013 and summons was served in April 2014. The Respondent contended that the Applicant’s claim had become prescribed, which the Applicant disputed on the basis that he did not know that he had any claim against the Respondent before consulting his attorney in July 2013 and as such the prescription of his claim could only start to run from July 2013, as this was the first time he obtained “knowledge” of the legal consequences of the actions of the Respondent.

The question asked, upon which the Court had to make a ruling, was whether knowledge of a legal remedy is required for prescription to run? The starting point in considering this question, is to point out that the question calls for an analysis of section 12(3) of the Act. This section, in summary, provides that:

As the general rule, prescription can only commence to run as soon as the debt is due, subject to three exceptions, namely:

  1. Prescription does not commence to run against a creditor if the debtor wilfully prevents him from coming to know of the existence of the debt;
  2. The debt is not deemed to be due until the creditor has knowledge of two things, namely knowledge of the identity of the debtor and knowledge of the facts from which the debt arose; and
  3. The creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care.

The said section of the Act, clearly does not make provision for, nor does it require, the creditor to have knowledge of any right to sue the debtor. The Act also does not require him to have knowledge of legal conclusions that may be drawn from “the facts from which the debt arises”.

The facts from which the debt arises are the facts which a creditor would need to prove in order to establish the liability of the debtor. The question arises, whether knowing that the conduct of the debtor is wrongful and actionable is knowledge of a fact? The section does not provide for, nor requires, knowledge of legal opinions or conclusions, or the availability in law of a remedy. A distinction between the question of fact and the question of law needs to be made, which in itself is not always easy to make.

The Court considered this and relayed that a conclusion of law results when legal effects are assigned to events and that a question of fact usually calls for proof where a question of law usually calls for argument.

The Court found that knowledge of a debtor’s wrongful and actionable conduct is knowledge of a legal conclusion and not knowledge of fact, and as such falls outside the scope of the Act. The facts from which a debt arises are the facts of the incident or transaction, which, if proved, would mean that in law the debtor is liable to the creditor.

This case has now become settled law in that section 12(3) of the Act requires knowledge only of the material facts from which the debt arises for the prescriptive period to begin running – it does not require knowledge of the relevant legal conclusions (i.e. that the facts constitute negligence) or of the existence of an expert opinion which supports such conclusions.

The interpretation and application of this Act remains technical in nature, and it is advised to obtain legal advice in the event of doubt.

Reference List:

  • Prescription Act 68 of 1969
  • Links v Department of Health, Northern [Cape} Province 2016 (4) SA 414 (CC)
  • Mtokonya v Minister of Police [2017] ZACC 33
  • Loni v Member of the Executive Council, Department of Health Eastern Cape, Bhisho [2018] ZACC 2

This article is a general information sheet and should not be used or relied on as legal or other professional advice. No liability can be accepted for any errors or omissions nor for any loss or damage arising from reliance upon any information herein. Always contact your legal adviser for specific and detailed advice. Errors and omissions excepted (E&OE)