Prescription refers to the extinguishment of a legal claim or the loss of a right to take legal action due to the passage of time. The purpose behind prescription is to promote legal certainty, avoid stale claims, and provide a fair and just resolution to disputes.

Prescription periods are set out in various laws and regulations and may differ depending on the type of legal claim or the nature of the right in question. By way of example, the prescription period for a Road Accident Fund claim differs from that of a medical negligence claim.

The Prescription Act 68 of 1969 (“the Act”) regulates the prescription of medical malpractice claims in South Africa. In terms of the Act, a creditor has three years to institute summons against a debtor to recover a debt, failing which the debt will prescribe and is no longer regarded as lawfully due to the creditor. However, the three-year period does not necessarily run from the date of the incident; the Act requires a creditor to have knowledge of the identity of the debtor and of the facts from which the debt arises. There are conflicting judgements on when a creditor possesses sufficient knowledge for the proverbial prescription clock to start ticking. Some judgements require a creditor to simply possess the minimum facts necessary to institute action whereas others require a creditor to be in possession of professional or expert advice.

The position is somewhat different when it comes to minors (persons under the age of 18).[1] The Act provides that, where the three-year period of prescription is completed before a minor attains the age of majority, the minor will have a year from the date he/she attains the age of majority to institute action against the debtor. By way of example, if the incident occurred when the minor was 11 years old and he/she became aware of sufficient facts to institute an action a year later, the minor would need to institute action within one year of attaining the age of majority. Conversely, where the three-year period of prescription begins to commence whilst the claimant is still a minor but is completed after the lapse of one year after attaining the age of majority, the claimant enjoys no further extension and the claim will prescribe on the date the three-year period of prescription is completed. By way of example, if the incident occurred when the minor was 16 years old and he/she became aware of sufficient facts to institute an action a year later, the minor would need to institute action before he/she reaches the age of 20.

In conclusion, the nuanced interplay of time, awareness, and legal status underscores the complexity of prescription in the context of medical malpractice claims. Navigating these intricacies is essential for both creditors seeking justice and debtors seeking protection against stale claims.

[1] The age of majority is deemed to be 21 for claimants born before 1 July 2007 – see Malcolm v Premier, Western Cape (207/2013) [2014] ZASCA 9 (14 March 2014)

Jean-Paul Rudd

Partner | Attorney

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