The Constitutional Court has recently had occasion to deal with the question as to whether or not s12(3) of the Prescription Act (Act), requires a creditor to have knowledge that the conduct of a debtor, giving rise to the relevant debt, is wrongful and actionable, before prescription might start running against that creditor.

In the matter of Mtokonya vs The Minister of Police [2017] ZA CC33, the Constitutional Court had to interpret the meaning and import of s12(3) of the Act, which stipulates “when prescription begins to run”. The relevant sub-section reads as follows:

A debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises…

In this instance, the plaintiff (Mr Mtokonya) had been arrested by the South African Police Service and then detained for a period in excess of 48 hours, without having been made to appear before a court of law. The plaintiff did not know, until advised by an attorney some years later, that his arrest and detention had been unlawful and actionable, and that he could in fact sue the police. By then, however, the prescription period normally applicable, had already run its course. The plaintiff sought to argue, however, that because he had not known of the availability of a remedy against the police, prescription had not yet began to run.

The ultimate issue to be determined, in the circumstances, was whether, under s12(3) of the Act, a lack of knowledge that the conduct of the debtor was actionable and wrongful, had prevented prescription from running against the plaintiff.

The majority view of the Constitutional Court was that s12(3) of the Act does not require the creditor to have knowledge of any right to sue the debtor, nor does it require the creditor to have knowledge of legal conclusions that may be drawn from “the facts from which the debt arises”. The question then to be answered was whether knowledge that the conduct of the debtor is wrongful and actionable, is knowledge of a fact?

The majority view of the Constitutional Court was that an absence of appreciation for the fact that the conduct complained of was wrongful and actionable, was not a fact, but rather a conclusion of law (and therefore falls beyond the ambit of s12(3) of the Act). For that reason, the plaintiff’s claim (instituted outside of the time limits prescribed), had indeed become prescribed, and could not be pursued.

In reaching this conclusion the Constitutional Court emphasised the importance of prescription, and the “vital role time limits play in bringing certainty and stability to social and legal affairs….Without prescription periods, legal disputes would have the potential to be drawn out for indefinite periods of time, bringing about prolonged uncertainty to the parties to the dispute”.

The view adopted by the majority judgment of the Constitutional Court is to be welcomed.