Tuesday, February 20, 2007

By Kevin Iles
Prescription is a rule of law that is designed to bring finality to disputes. It is governed by the Prescription Act 68 of 1969 ("the Act") which provides that a person has three years from the date on which a debt falls due to institute legal proceedings to collect on that debt. For the purposes of prescription, "debt" has a broad meaning and includes the majority of litigation claims, including disputes where the thing claimed is something other than money (the return of an asset, for example). Where a time for payment is not fixed, a debt becomes due when the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises, or could have acquired that knowledge by exercising reasonable care.
In 2006 the Supreme Court of Appeal ("the SCA") handed down three important judgments concerning prescription. In two of them the SCA reaffirmed that prescription begins to run as soon as all of the facts necessary to support a claim in law have arisen and a plaintiff must claim all of their damages, both retrospective and prospective, in a single cause of action (Truter and Another v Deysel [2006] SCA 17; Unilever Bestfoods Robertsons and Others v Soomar and Another [2006] SCA 172). In Truter the plaintiff instituted proceedings for damages arising from medical negligence which caused the loss of his eye. He argued that prescription only started running when he lost the use of his eye five years after the first negligent medical procedure. In Unilever the plaintiff contended that because the harm he suffered was the result of a conspiracy against him, prescription only started to run when the conspiracy ended. So in both cases the plaintiffs maintained that they were unable to institute a claim until the harm done to them was complete.
The SCA rejected this argument. It ruled that there are two distinct types of clams: either there is a single wrongful act which causes an ongoing harm (hitting a person on the head with a hammer, causing them to have a headache for several days followed by concussion) or there is an ongoing wrongful act which gives rise to a claim in law from moment to moment (someone unlawfully blocks a public road). The hit on the head is a single event. The moment the plaintiff has been hit and feels the first twinge of pain, time starts to run for the purposes of prescription. That plaintiff must claim all of their damage, both the pain they have already felt and the concussion that is still to come, in a single cause of action within three years of being hit. In the case of the road closure, for every moment that the road remains blocked one is committing a wrongful act. Prescription therefore effectively restarts with every moment that the street remains blocked. Prescription in the Truter case therefore started to run after the first negligent medical procedure and not when the plaintiff lost his eye. In Unilever the SCA held that prescription began when the plaintiff first suffered harm and not when the conspiracy came to an end.
The SCA in Unilever also confirmed that what prescribes is a "debt" and not a "cause of action". So, where a litigant has several causes of action supporting a singe harm, prescription will start to run from the time that the first cause of action is completed, not the last. So, for example, if A maliciously states that B has committed a crime and B is later arrested, B will have a claim for damages arising from the defamatory statement as well as the wrongful arrest. Prescription will begin running from the time of A’s statement, and not when B was arrested.
In Truter the plaintiff’s attorneys were unable to find an expert who was willing to testify to negligence. A favourable expert was finally found seven years after the incident concerned. The SCA held that the expert opinion was for the purposes of determining whether the actions of the doctors were negligent. Negligence is a conclusion of law to be drawn from the facts and is not a fact in itself. What is required for prescription to begin is that all of the facts necessary to support a claim in law be known to the plaintiff. Prescription is not delayed until the plaintiff also has the legal conclusions that will need to be drawn from the facts to win his or her suit.
In Minister of Finance and Others v Gore NO [2006] SCA 97, the plaintiff instituted proceedings for damages arising from a fraudulent tender process. Although the plaintiff had been convinced from inception that the tender process was tainted with fraud, he had been unable to uncover evidence of that fraud despite diligent attempts to do so. Evidence of fraud finally emerged five years after the conclusion of the tender process as a result of a separate investigation. The SCA held that the plaintiff had not been dilatory in instituting proceedings and had done all that could be expected of him in trying to uncover the facts necessary to support his cause of action. The proof of the fraud was a material fact which was necessary to support a cause of action and his claim had therefore not prescribed.