On the extinctive prescription of personal injury claims in South Africa

Le Roith, Caitlin

On the extinctive prescription of personal injury claims in South Africa

Thesis / Dissertation

2024

Abstract

The law of extinctive prescription regulates the impact that the passage of time has on claims, or ‘debts', to use the language of the South African Prescription Act 68 of 1969. In broad terms, if a person fails to institute legal proceedings for the enforcement of their claim before the lapse of the period that applies to that claim, which could be between three and thirty years, extinctive prescription operates to thwart that process. In South African law, it does so by empowering the person against whom the claim is brought to, by way of special plea, effectively relieve the court of its adjudicative duties in respect of that claim and, ultimately, release themselves from liability, terminating any obligation that person once had to perform. The person seeking to enforce their claim, then, is essentially deprived of their power to do so. Despite its long history and its reputation as a legal regime of enormous practical importance, laws of prescription are generally considered to be theoretically and intellectually unrewarding areas of statute law. As such, it does not receive nearly as much attention from our legal scholars as some of the other areas of law. In the South African context, this is particularly surprising given the frequency with which our courts engage with pleas of prescription, which are often the source of protracted litigation, in cases that make their way to our highest courts. A significant portion of these cases involved claims that arose from personal injury, which are subjected to the shortest prescription period of three years. In addition to a three-year prescription period, the prevailing interpretation of section 12(3) by our courts means that the prescription period will begin to run before the person with the right to claim is even aware of it. In this dissertation, I take a closer look at the rules governing the extinctive prescription of personal injury claims in South African law and the justifications for the manner in which these claims are regulated.

Keywords

Law

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