Extinction of debts by prescription

Trust Maanda Post Correspondent

A DEBT goes into extinction by prescription if not claimed speedily.

Prescription is when a debt or legal obligation is extinguished due to passage of time.

When a debt arises, any claim for it should be done within a specific time, otherwise the debt automatically lapses.

In Zimbabwe, we have the Prescription Act (Chapter 8:11) (the Act), which provides for different periods within which varying claims become barred by passage of time.

The Act provides for periods within which certain claims get extinguished for not being raised within a stipulated time from the date the cause of action arises.

In terms of Section 15 (d) of the Act, prescription begins to run from the time the debt becomes due, meaning the date from which it becomes immediately claimable by the creditor and immediately payable by the debtor.

A debt is defined as: “Anything which may be sued for or claimed by reason of an obligation arising from statute, contract, delict or otherwise.”

This means that any obligation that a creditor may claim on is a debt, whether it arises from a contract, statute or delict. A right on which one can claim is a debt that can prescribe.

The Act sets out the different periods of prescription for different categories of debts. In the case of any debts, where no statute provides otherwise, the prescription period is three years. This period relates to most of the claims, such as for repayment of debt, performance of contractual obligations, damages arising out of a delict, etcetera.

In the case of a delict or any other case, prescription begins to run from the date the cause of action is complete. This means from the date all the facts giving rise to the claim have come into existence.

If it is a claim for damages of assault, defamation, injury to person or property, for example, the cause of action arises on the date on which the events giving rise to the claim occur. If the debt is not claimed within three years from the time the cause of action arises, then the debt becomes extinguished by operation of law.

However, in terms of Section16 (3) of the Act, a debt is not deemed to be due until the creditor becomes aware of the identity of the debtor and of the facts from which the debt arises.

Prescription begins to run from the date of awareness. The creditor must become aware of the identity of the debtor and facts giving rise to his claim against the debtor.

There is a provision that a creditor shall be deemed to have become aware of such identity and of such facts if he could have acquired knowledge thereof by exercising reasonable care.

In order to be aware of the debtor, the creditor must be aware of the cause of action.

For example, if a creditor is diagnosed with a disease well after the conduct giving rise to it had occurred, the date of diagnosis is the time from which prescription begins to run.

In that case, the set of facts which gives rise to the claim did not become known to the creditor immediately after he or she was harmed or exposed to harmful circumstances.

In that case she or he, however, need to assert that she or he was unaware of the debtor or of the facts giving rise to the claim and serve summons not more than three years from the date of awareness.

The running of prescription is interrupted by an acknowledgment of debt by a debtor, for example, if a debtor pays part of his debt before prescription; or by service of summons on the debtor to claim payment of the debt due.

Service of other court processes listed in Section 19 of the Act also interrupt prescription.

Other Acts of Parliament provide for different periods of prescription. An example is the Customs and Excise Act, [Chapter 23:02].

Section 196 (2) of that Act provides that certain proceedings shall be brought within eight months after the cause arose. One has to file court proceedings within eight months from the date of cause of action or the claim prescribes.

Another example of a prescription period is in the Police Act (Chapter 11:10).

Section 70 of the Police Act provides that civil proceedings against the State shall be commenced within eight months after the cause of action has arisen.

Prescription befits the idiom if you snooze, you lose.

The law assists the vigilant, not those who sleep.

Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646.