HOW DOES THE LAW OF PRESCRIPTION LIMIT YOUR RIGHT TO SUE?
Legal actions have to be brought within a specified period of time. If you fail to do so, your right to sue for damages or to recover a debt or to make reference to Arbitration proceedings etc. will be lost.
These periods of time (known as prescription periods) differ according to the basis of your legal action. In most cases you have to institute your action within three years of the event which gave rise to your action. So, for example, if your car is damaged in an accident which occurred on 1 January 1997, you would have until midnight on 31 December 2000 (being three years from the accident) to institute your action.
There are, however, certain causes of action where the prescription period is either less or more.
For instance, if you are suing the police you have one year to institute action. A further requirement, when suing the police is that you have to give notice of your intention to sue, before actually instituting the action.
This notice must be sent to either the national or provincial commissioner of police no less than one month before action is instituted.
Prescription periods are not only governed by Acts of parliament. Contracts can also provide for specific prescription periods. An example is the prescription or time bar clause which appears in most of our insurance policies. Be well aware of such a provision if your insurance company repudiates your claim.
The clause generally provides that if you fail to institute action against the insurance company within a specified period of your claim being repudiated (usually 90 days) then your right to claim from the company is forfeited.
It is also important to note when prescription starts to run. After all, it is no good knowing that you have one year to institute an action if you are not sure when that one year period starts.
Generally, prescription will start to run when you know (or ought reasonably to know) the identity of the person from whom you are claiming and the facts on which your cause of action is based.
In our motor accident example, it will be safe to assume that prescription would run from the date of the accident.
Things would be different in the case of a person who is operated on by a surgeon but doesn't find out that the surgeon had been negligent until complications arise six months after the operation.
In that case, prescription would start to run six months after the operation, and not on the date of the operation itself (even though that is when the act of negligence was committed).
In the case of minors' claims, prescription starts to run when the minor reaches the age of 21.
Be aware of the fact that there are certain time limits on your right to sue and, if in doubt, consult an attorney for guidance.
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