The law on prescription in South African law is often misunderstood, particularly in debt-related matters. One of the key misconceptions is that a claim only prescribes once the creditor is able to prove it in full. However, as confirmed by South African courts, knowledge of the facts giving rise to a claim is enough to trigger the prescription period — even if full evidence is not yet available.

Understanding Prescription in South African Law

In South Africa, prescription refers to the legal principle by which a claim becomes unenforceable after a certain time has passed. This is governed by the Prescription Act, which outlines various prescription periods depending on the type of claim.

What Is Extinctive Prescription?

Extinctive prescription applies to most civil claims, such as debts, contracts, and delicts (civil wrongs). After a set number of years — typically three years — a creditor can lose the right to enforce the claim, even if the underlying obligation remains valid.

When Does Prescription Start to Run?

According to section 12(1) of the Prescription Act South Africa, prescription begins to run as soon as the debt becomes due. Crucially, section 12(3) adds that this is when the creditor has knowledge of the facts giving rise to the debt — not when they acquire full proof.

In short: knowing is enough; proving is another matter entirely.

WK Construction v Moores Rowland: A Case on When Prescription Starts

The recent decision in WK Construction (Pty) Ltd v Moores Rowland [2022] ZASCA 44 provides a clear example of how this principle works in practice.

The Background

WK Construction discovered that one of its directors had embezzled millions of rands over several years. After recovering some of the funds, the company issued a claim on 23 August 2016 against its auditors, Mazaars, for allegedly failing to detect the fraud in their audit reports.

Mazaars raised a defence that the claim had prescribed, since WK Construction had discovered the fraud on 22 August 2013.

Arguments and Rejection

WK Construction argued that:

• Mazaars’ liability only arose after the director failed to repay more of the stolen funds.
• The company didn’t yet have sufficient evidence of negligence at the time of discovering the fraud.

The Court rejected both arguments, finding that:

• The conduct of one debtor (the director) has no effect on when prescription starts against another party (the auditor).
• WK Construction did not need full evidence of Mazaars' negligence. It was enough that the company had knowledge of the facts linking the fraud to the clean audit reports.

Final Ruling

The Court held that the claim had prescribed, as WK Construction had knowledge of the material facts by 22 August 2013 — more than three years before the claim was lodged. The appeal failed, and the decision of the High Court was upheld.

Exceptions, Interruptions, and Acknowledgement of Debt

There are specific legal mechanisms that can interrupt or delay prescription. These are important in managing claims and ensuring that rights are not lost prematurely.

What Can Interrupt Prescription?

Prescription may be interrupted by:

• The service of legal process
• A valid acknowledgement of debt by the debtor
• Circumstances such as fraud, minority, or mental incapacity

When interrupted, the prescription period resets from the date of interruption.

Acknowledgement of Debt in South Africa

An acknowledgement of debt — written or verbal — confirms the existence of the obligation and can restart the prescription period. This is a critical tool for creditors wishing to preserve their rights.

Why Prescription Law Matters in Debt Recovery

Understanding when prescription starts, and how it operates, is essential for both creditors and legal professionals. Delaying legal action under the false belief that more evidence is needed can result in the permanent loss of a valid claim.

Van Deventer & Van Deventer Inc. – Litigation Attorneys 

Our litigation attorneys offer clear, practical advice on the prescription of debt in South Africa, including how to calculate time limits, assess potential interruptions, and protect your claims.

Contact us to speak with an experienced legal professional about your rights under the Prescription Act South Africa.