Prescription do’s and don’ts

DON’T: DO:
1.  Use incorrect prescription date. Make certain that you are using the correct date for prescription by ensuring that:

  • you are familiar with any contractual or statutory prescriptive periods applicable to your client’s matter (for example an insurance contract or claim against the State);
  • you are familiar with the Prescription Act 68 of 1969 (especially section 11 – the periods of prescription of debts, section 12 – when prescription begins to run, section 13 – prescription delayed in certain circumstances and section 14 – interruption of prescription by acknowledgement of liability);
  • you are fully conversant with all the facts pertaining to your client’s matter and have taken them into account in calculating the prescription date; and
  • you have kept abreast of developments in the law (judgments and legislation).
2.  Lose sight of the prescription date while attending to the matter / make it difficult for someone attending to the file later to establish the date of prescription.
  • Ensure that the prescription date features prominently at the front of the file and that important steps are taken in the matter are recorded on the cover or in a prominent placed checklist.
  • Ensure that your firm and individual RAF matters are registered with Prescription Alert (Contact Lucia Snyman at 021 422 2830)
3.  Take on new matters that are close to prescription.
  • Avoid this by refusing to take on such matters (making sure that you have explained the prescription problems to the prospective client).
  • Ensure, if you do take on the matter, that you explain the problems to client and obtain a proper written idemnity before accepting the mandate.
4.  Discover after prescription date that proceedings were brought in the wrong forum (no jurisdiction)
  • Ensure that the court / forum has jurisdiction in respect of the parties, matter and quantum.
5.  Discover after prescription date that the wrong party / parties were cited (no locus standi)
  • Establish who the true defendant is by doing all the necessary checks; and
  • Ensure that plaintiff/s have locus standi (and that your instructions come from a source with the necessary authority).
6.  Allow precription while particulars of claim are being settled by counsel.
  • Ensure that counsel is briefed in good time and follow up/instruct another counsel if necessary.
7.1  I leave it to the last minute to obtain important documents, reports and information.

7.2  Leave it to your client to provide these.

  • Use a checklist to ensure that all documents and information have been obtained;
  • If necessary go out and collect the information / documents / reports yourself. {see Mlenzana v Goodrick & Franklin Inc (2012) JOL29026(FSB)}
8.  At the last minute find yourself unable to contact client to obtain instructions.
  • Make sure you have comprehensive contact details for client and his/her relatives.