In terms of the Prescription Act, Act 68 of 1969, a debt prescribes three years from when the debt becomes due and payable. In the recent case of ABSA Bank Ltd v Keet (817/13) [2015] ZASCA 81 the Supreme court of Appeal was asked to decide whether a vindicatory claim also prescribes in the three year period.

The facts of the case are briefly as follows: Mr Keet had a hire purchase agreement with the Applicant (ABSA). In terms of the agreement Mr Keet would only become the owner of the vehicle once all amounts owing under the agreement had been paid in full. Should Mr Keet fail to pay or breach the agreement the Applicant had the right to cancel the agreement and claim repossession of the vehicle. Mr Keet had breached the agreement and the Applicant claimed back the vehicle. In his defence Mr Keet raised prescription:  more than three years had passed since the date when the debt fell due, in terms of the agreement, to the date the Applicant instituted proceedings against him and therefore the claim of the Applicant had prescribed.

Zondi J in delivering the judgment explained the difference between a claim between a debtor and creditor and how it differs from the claim in casu. The claim of the Applicant was a vindicatory claim (claiming back a thing or possession) and was based on the ownership of a thing and not a debt as set out in the Prescription Act. 

Zondi J further and stated that the claim for a debt is based on a personal right and concerned with the relationship between the persons (i.e. the creditor and debtor). “Extinctive prescription as set out above is concerned with the relationship between the debtor and creditor and serves to protect the debtor against claim that perhaps never came into existence or had already been extinguished” ¹. A vindicatory claim is based on a real right and concerned with the ownership of a thing. Thus the claim based on a real right is not a debt as set out in the Prescription Act which would entail that the claim does not prescribe within three years from when it became due. The court held that the vindicatory claim of the Applicant did therefore not prescribed in three years.

¹Prof De Wet Opuscula Miscellanea February 1979.

Written by: Anye Jansen van Rensburg from Schoeman Law.