April 21, 2020
There is currently no prescription drug for COVID-19, let alone a cure. The term prescription has both a medical and legal meaning. While the world holds its collective breath for a COVID-19 vaccine, prescription or cure, this article will deal with prescription in the legal sense.
The general legal principle of prescription of a debt is that it is unenforceable after the lapse of a specified period from the date the debt becomes due. The term debt applies to numerous legal obligations arising from both contract and delict.
This principle is regulated by the Prescription Act, 1969 (the “Act”) which stipulates that an ordinary debt cannot be enforced after the expiry of a designated period. Most debts become unenforceable, save for certain exceptions, after the expiry of three years of it becoming due. Practically speaking, this means that no enforceable legal action can be taken by the creditor to recover the debt. Prescription may however be interrupted by the service on the debtor of a judicial process, claiming payment of the debt.
Regrettably, a letter of demand does not suffice for this purpose. Instead, what is required is the institution of legal proceedings through our court system. This entails the creditor issuing summons out of the court and ensuring the summons is served on the debtor by the sheriff of the court. This process fundamentally requires the courts and sheriffs to be operating normally to carry out these legal functions.
The national lockdown from 27 March 2020 to 16 April 2020 as a result of COVID-19 has restricted the functioning of courts to special matters such as urgent cases that cannot wait to be resolved after 16 April 2020. These are typically matters involving children, domestic violence, urgent maintenance and bail related matters. The recovery of a contractual or delictual debt does not fall within this ambit.
Although the Minister of Justice and Correctional Services on 26 March 2020 (Gazette No. 43167) has directed courts to issue legal processes (e.g. summons) where claims are prescribing during the lockdown period, the heads of most courts have specifically issued directives that the issuing of judicial documents are suspended. Furthermore, some sheriff’s offices have elected to close entirely during the national lockdown period.
The vexed question is what remedy does a creditor whose claim is prescribing during this period have in law?
The Act does contain a mechanism in which the running of prescription is delayed by the operation of a superior force. In essence, the creditor will have a further one year from the time the impediment (as a result of the superior force) ceases.
What is understood in our law to constitute a superior force is factual evidence that, objectively viewed, prevented a creditor from enforcing their claim against the debtor. A creditor who is unable to comply with issuing and service of summons as a result of the COVID-19 lockdown, may have one extra year commencing from the lifting of the impediment.
For example, if a debt became due on 15 April 2017, the debt would ordinarily prescribe on 14 April 2020. With the COVID-19 lockdown, the relevant court and/or sheriff is closed from 27 March 2020 and (at the earliest, on the current time frame) they respectively return to their normal operation on 17 April 2020. This is the date the impediment will cease. The creditor who is unable to issue and serve summons prior to the 13 April 2020 due to the COVID-19 lockdown, may have one year from the date on which the impediment ceases and must now institute legal proceedings on or before the 16 April 2021, which is the extended date.
Although untested within the context of a national disaster such as the COVID-19 lockdown, depending on the specific circumstances of each case, the relevant court’s and sheriff’s ability/willingness to discharge their duties may come to the aid of a creditor who may not otherwise have legal recourse. It is however preferable if urgent directives on this issue are published by the Minister of Justice and/or Chief Justice of South Africa. This will avoid a multiplicity of disputes and court proceedings pertaining to the delays arising from the lockdown.
It is recommended that creditors, who have yet to institute legal proceedings for claims that are prescribing during the lockdown period, to contact an attorney for advice on this issue and how best to overcome it. It may entail endeavours being made to issue processes so that a court, at the appropriate time, has facts to make an objective determination of the efforts that was made by the creditor to commence proceedings.