Prescription - Be careful, it bites!

Generally, prescription runs for three years from the date that a cause of action becomes complete. In plain English that means you have three years to sue from the date that a debtor becomes liable to pay you. Once a valid summons is issued, prescription

While it is vital to get a summons served in time to interrupt prescription, it can be just as important not to jump the gun. A summons issued before a loss has actually been suffered will be premature and defective. The risk is that the defect is discovered too late for a fresh summons to be served in time to interrupt prescription. That said, a summons will not be premature if damages were suffered before summons was issued and in respect of that cause of action simply continues to accrue in addition to those originally sustained.

A defendant facing a claim for payment of money but who has a claim against a third party, in the event that the first claim is successful, needs to consider carefully when and how action should be taken against the third party. In this scenario, the loss will be suffered by the defendant only if the first claim is successful.

Although there are mechanisms in the Rules of Court that allow a claim for an indemnity from a third party to be brought conditional

on the main claim succeeding, each set of facts requires careful analysis as the third party procedure is not always available or

appropriate.

In a similar vein, one needs to be careful not to blur the distinction between a single cause of action in respect of which damages

continue to accrue and a situation where an entirely new cause of action arises. In the 1980 decision in Evins v Shield Insurance Co

Ltd [1980] 2 All SA 40 (A), alternatively 1980 (2) SA 814 (A), the Appellate Division of the Supreme Court held that where an

amendment to a summons amounts to nothing more than "a fresh quantification of the original claim" or "the addition of a further

item of damages" and the additions made by the amendment are "part and parcel of the original cause of action" then such an

amendment is permissible.

If, however, the purpose of the amendment is to introduce an entirely new cause of action, the party wishing to bring the amendment will bear the onus of showing that exceptional circumstances exist justifying the amendment. Then, even if the court is happy that exceptional circumstances exist, the amendment will still constitute an entirely new claim effective from the date that the amendment is made. If the claim would have prescribed by the time the amendment was effected a special plea of prescription should succeed.

It is important to be sure as a prescription point, when properly taken, is a killer.