CHAPTER 17 - PRESCRIPTION

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The periods of prescription for delictual actions are laid down in the Prescription Act No. 31 of 1975. In s 2 “debt” is defined so as to include a delict and then in s 14 the prescription periods for debts are set out.Three years is the usual period for prescription for a delict but s 14 sets out longer periods of prescription for certain types of debt, such as six years for a debt owed to the State.

 

Under s 6 of the State Liabilities Act [Chapter 8:14], 60 days’ notice must be given of an intention to claim money from the State. The notice must set out the grounds of the claim and, where appropriate and possible, give details of officials involved and have copies of documents relating to the claim attached to it. The courts will have the power to condone failure to give the required notice where there has been substantial compliance with the section or where there has been no undue prejudice to the State or to the officer being sued.

 

There are special provisions in the Police Act [Chapter 11:10] dealing with the period of prescription for claims arising out of delicts committed by policemen. Section 70 reads as follows:

 

Any civil action instituted against the State or a member in respect of anything done or omitted to be done under this Act shall be commenced within eight months after the cause of action has arisen, and notice in writing of any civil action and the grounds thereof shall be given in terms of the State Liabilities Act [Chapter 8:14] before the commencement of such action.

 

In Nyika & Anor v Minister of Home Affairs & Ors HH-181-16 the court decided that there was no reason why the general the year prescription period for ordinary debts as contained in s 15 (d) of our prescription should not govern claims against the police. It found that the provision providing for the shorter period of prescription for actions against the police violated s 69(2) (on the right to a fair hearing) and s 56 (1) (on the right to equality before the law and equal protection of the law)  It referred the matter to the Constitutional Court in terms of s 175 (1) of the Constitution for its confirmation or otherwise of this constitutional ruling.

Sections 176 and 178 of the Customs and Excise Act [Chapter 23:02] should also be noted. Under these as well, actions against customs officers in terms of this Act must be instituted within 8 months and 60 days’ notice of intention to institute proceedings has to be given. See Badenhorst v Minister of Home Affairs 1984 (1) ZLR 221 (S).

 

It is strongly arguable that the ruling in the Nyika & Anor v Minister of Home Affairs & Ors HH-181-16 that the shortened period of prescription in respect of actions against the police would also apply in respect of actions against customs officers. In other words this shortened period of prescription is also unconstitutional.

Careful note should also be taken of s 25(1)(ii) of the Road Traffic Act [Chapter 13:11]. In relation to statutory third party insurance claims this provides that:

 

…the right of recovery directly from the insurer should become prescribed upon the expiry of a period of two years from the date on which such claim arose.

 

(The claim against the negligent motorist, however, only prescribes after three years from the date on which such claim arose.)