A valid claim can be lost simply because too much time has passed. In South African law this is called prescription. Once a debt has prescribed, it is extinguished, and the creditor can no longer enforce it in court, however strong the claim was.
Prescription affects businesses on both sides. Creditors lose unpaid invoices, damages claims and loan repayments because they waited too long. Debtors, on the other hand, sometimes pay or acknowledge debts that had already expired, or fail to raise prescription as a defence when they could have.
The courts continue to apply the rules strictly. In April 2026, in the Superstrike Investments matter, the Western Cape High Court confirmed that a creditor’s ignorance of the law, or failure to read the documents they signed, does not stop the clock. This article explains how prescription works and what you can do to protect your position.
The Prescription Act and the main periods
Most debts are governed by the Prescription Act 68 of 1969. “Debt” is interpreted broadly and includes claims for payment of money, damages, and the delivery or performance of something owed under a contract. Section 11 sets the main periods:
- 30 years for debts secured by a mortgage bond, judgment debts, and certain taxation debts;
- 15 years for certain debts owed to the State, such as those arising from a loan of money or the sale or lease of land by the State, unless a longer period applies;
- 6 years for debts arising from a bill of exchange or other negotiable instrument, or from a notarial contract, unless a longer period applies; and
- 3 years for all other debts, which covers most commercial claims, such as unpaid invoices, ordinary loans and claims for damages.
Other legislation can impose shorter or different time limits. Examples include claims against organs of state, which require written notice within six months under the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002, claims against the Road Accident Fund, and labour disputes, which must be referred to the CCMA or a bargaining council within tight time frames.
When does the clock start?
Under section 12(1), prescription begins to run as soon as the debt is due. For an invoice, that is usually the payment date agreed in the contract. For a damages claim, it is when the loss is suffered and the claim is complete.
Section 12(3) adds an important qualification. A debt is not regarded as due until the creditor knows the identity of the debtor and the facts from which the debt arises. However, a creditor is deemed to have that knowledge if they could have acquired it by exercising reasonable care.
The courts have repeatedly held that this means knowledge of the facts, not knowledge of the law. You do not need to know that you have a legal claim, or how strong it is. In the Superstrike Investments case, a claimant joined a company as a defendant several years after an incident, saying she only learned of its involvement when she consulted attorneys. The court found that the documents she had signed made the company’s role clear, and her failure to read them did not delay prescription. The practical lesson is that a creditor who does nothing is treated as knowing what reasonable enquiries would have revealed.
When is prescription delayed?
Section 13 delays the completion of prescription in certain situations, for example where the creditor is a minor or under curatorship, where the debtor is outside South Africa, where the creditor and debtor are married to each other, or where the debt is owed by or to a deceased estate before an executor is appointed. In these cases, prescription is not completed until a year after the impediment falls away. These rules are technical, and whether one applies depends on the facts.
How prescription is interrupted
There are two main ways to interrupt prescription, after which it starts running afresh:
- Acknowledgment of liability (section 14). If the debtor expressly or tacitly acknowledges the debt, prescription is interrupted. A part payment, a written acknowledgment of debt, or a request for more time to pay can all qualify. It is important to keep written records of these.
- Service of process (section 15). Prescription is interrupted when the creditor serves a summons, application or other process claiming payment on the debtor. A document commencing arbitration also counts. Sending a letter of demand does not interrupt prescription. If the creditor does not pursue the claim to final judgment, or abandons it, the interruption lapses.
Negotiations, settlement discussions and correspondence do not stop the clock by themselves. Many claims prescribe while the parties are “still talking”.
Prescription must be raised
A court will not raise prescription on its own. Under section 17, a debtor who wants to rely on it must raise it in the pleadings. If a debtor ignores a summons for a prescribed debt, the creditor may still obtain default judgment. Receiving a summons for an old debt is therefore a reason to act, not to ignore it.
Prescribed consumer debts
For consumer credit, the National Credit Act 34 of 2005 adds further protection. Section 126B prohibits the sale of debts under credit agreements that have been extinguished by prescription, and limits attempts to collect them. The Supreme Court of Appeal has held that this section does not operate retrospectively, so older acknowledgments may be treated differently. Consumers who receive demands for old debts should take advice before paying or signing anything.
Practical steps for creditors and debtors
- Diarise due dates. Record when each debt became due and when it will prescribe, allowing time to issue and serve process before that date.
- Do not rely on letters of demand. They are useful, but they do not interrupt prescription.
- Get acknowledgments in writing. If a debtor asks for more time, record the request and their acknowledgment of the amount owed.
- Act quickly once you know the facts. Make reasonable enquiries about who is liable. Waiting for certainty can cost you the claim.
- Check for shorter statutory time limits where the claim involves the State, the Road Accident Fund, an employment dispute or another regulated area.
- If you are the debtor, check the dates before paying or acknowledging an old debt, and raise prescription in your plea if it applies.
- Take advice early in any dispute that may end in litigation, so that the timeline is managed from the start.
How O’Reilly Law can help
We advise creditors and debtors on whether a claim has prescribed, when it will prescribe and how to interrupt it. We issue summonses and applications to protect claims close to their prescription date, raise and argue prescription defences, and assist businesses with debt recovery processes and systems that keep claims alive.
Contact us if you have a claim or debt that may be close to prescribing.
Related reading: Debt recovery in South Africa: a strategic legal perspective for businesses · Claiming damages for breach of contract: what you can recover
This article is general information and not legal advice. Correct as at October 2026.