Class notes
Prescription
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Class notes on the Prescription Act and different types of prescription
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Class NotesLecturer: L Mbaeva
8 March 2018
Prescription
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Obligations may be extinguished or rendered unenforceable by the lapse of
time. This is referred to as extinctive prescription.
Prescription is also an original method of acquiring ownership. This is referred
to as acquisitive prescription.
With regards to acquisitive prescription it was held in Ex Parte puppli 1975 (3)
SA 461 at 463 D that: “The rationale of our law of acquisitive prescription is
that an owner who negligently fails to protect his interests against a stranger
in possession of his property should forfeit the property to the possessor”.
There is thus 2 forms of Prescription:
(a) Extinctive Prescription; and
(b) Acquisitive Prescription
There are 2 views on the purpose of prescription:
(1) one with regards the carelessness of the owner or creditor in looking
after his property or his debt and attaches punitive measures to it.
(2) The other view is that there must be legal certainty; a factual state of
affairs should after a period of time acquire legal sanction.
The applicable Statute regulating prescription in Namibia is the Prescription
Act, Act 68 of 1969.
A copy of the Act has been uploaded on the Portal under Notes
, Extinctive Prescription
Obligations such as debts may become unenforceable or may be
extinguished by the lapse of time.
This has the effect that even if a person has a valid claim, the claim cannot be
enforced as a result of prescription.
The effect of extinctive prescription is therefore:
The extinction of a debt results in a simultaneous extinction of a right or cause
of action vested in the creditor.
THE PERIOD OF PRESCRIPTION OF DEBTS – SECTION 11 ACT 68/1969
(a) thirty years in respect of-
(i) any debt secured by mortgage bond;
(ii) any judgment debt;
(iii) any debt in respect of any taxation imposed or levied by or under any law;
(iv) any debt owed to the State in respect of any share of the profits, royalties or
any similar consideration payable in respect of the right to mine minerals or
other substances;
(b) fifteen years in respect of any debt owed to the State and arising out of
an advance or loan of money or a sale or lease of land by the State to
the debtor, unless a longer period applies in respect of the debt in
question in terms of paragraph (a) ;
(c) six years in respect of a debt arising from a bill of exchange or other
negotiable instrument or from a notarial contract, unless a longer period
applies in respect of the debt in question in terms of paragraph (a) or (b) ;
(d) save where an Act of Parliament provides otherwise, three years in respect of
any other debt.
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