Ignorance of the law – is it an excuse?

The Mthatha High Court handed down judgment on Wednesday in the matter between Sinethemba Mtokonya and the Minister of Police.

Mr Mtokonya was arrested and detained for four days in 2010, without being brought before a court of law. He ought to have been brought before a court of law within 48 hours of his arrest.

Nearly three years after his release from detention, he consulted an attorney, who advised him that his arrest and detention had been unlawful, and that he had a claim for damages against the Minister of Police. Mr Mtokonya instructed the attorney to pursue his claim. The prescribed notice was sent to the Minister, and thereafter a summons for payment of R350 000,00 in damages was served, in 2014.

The Minister raised a special plea to the summons, pointing out that a debt had to be sued for within 3 years of the debt arising. Mr Mtokonya’s summons came more than 3 years after his release from detention. His claim had, so the Minister argued, prescribed in law and was no longer enforceable, as more than 3 years had passed between the claim arising and the service of the summons.

Mr Mtokonya’s counsel relied upon a further provision of the Prescription Act that provides: “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: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care.” Counsel argued that it was not until he consulted with his attorney in 2013, that Mr Mtokonya became aware that he had a claim for damages arising from the incident, and thus the claim had not prescribed by 2014.

The court considered various past judgments where similar arguments had been raised. A rural schoolboy had been allowed to institute action 5 years after his claim arose, as the court hearing his claim had found that he had not been aware of the identity of the person he could sue, and thus his claim had not prescribed until 3 years after he acquired that knowledge.

In a long line of cases, the courts had held that failure to appreciate the legal consequences of known facts, did not delay the running of prescription. All one needed to know was the material facts on which one’s claim was based.

Applying the law to the current case, the court found that Mr Mtokonya had been aware of all of the material facts – his arrest and detention, and the identity of the perpetrator – in 2010. It did not assist him that he only found out that he had a claim for damages in 2013. He was negligent in his delay, and prescription had indeed extinguished his claim.

The special plea by the Minister was upheld, and Mr Mtokonya’s claim for damages was dismissed, together with an order holding him liable for the Minister’s legal costs.

It accordingly remains true that ignorance of the law is not accepted as an excuse. A claimant who is apprised of the facts is expected to seek legal counsel promptly, failing which she risks losing out on a prospective claim.

What is “extinctive prescription” and why is it so important?

In legal proceedings, if a debtor successfully raises the defence of “extinctive prescription”, then the claim against him or her is made permanently unenforceable. This will be the case regardless of whether the claim is legally valid in all respects, or the creditor enforcing the claim has ample or even irrefutable evidence proving his or her claim.

The defence becomes available as a result of a period of time, set out in the law, having passed since the claim came into being. These periods of time are, largely, set out in the Prescription Act.

If a debtor satisfies a claim – for example, repays a debt – despite the fact that the defence of extinctive prescription was available to him or her because of the length of time that had passed since the debt became due, she or he cannot insist on repayment of the money paid. The debtor must raise the defence before satisfying the claim, or will have lost the opportunity. Where the claim is in court, the court is not allowed to raise the matter of prescription of its own accord, thereby potentially depriving a creditor of satisfaction of its claim.

These are the prescription periods set out in the Act:

  • Three years: debts not covered specifically elsewhere in the Act of other legislation;
  • Six years: debts arising from bills of exchange or negotiable instruments (such as cheques or promissory notes), or notarial contracts (with exceptions);
  • Fifteen years: debts to the state arising from sales, leases, loans or advances (with exceptions);
  • Thirty years: debts secured by mortgage bond, debts in respect of which a judgment has been issued, taxation debts (eg income tax, VAT), and debts to the state in respect of profits and royalties.

The prescription period starts to run as soon as the debt becomes legally due. A debt does not become due in law until the creditor is – or ought to be through the exercise of reasonable care – aware of the identity of the debtor and the facts giving rise to the debt. For example, where a person has suffered harm but has not been able to ascertain who caused the harm despite exercising reasonable care, the claim for damages for that harm will not prescribe at once.

Certain events delay the running of prescription, for example the creditor lacking legal competence (due to factors such as youth or a period of mental incapacity).

Prescription can be interrupted by the debtor acknowledging his or her liability, or the creditor serving upon the debtor legal process claiming the debt. If the creditor manages to serve summons on the debtor claiming payment of the debt one day shy of the three year period ending, then the claim will remain valid pending finalisation of the court case.