In the recent judgment handed down in the High Court matter of Chetty v Pillay, the interplay between death and prescription was brought to the fore. While prescription (i.e. where a claim or debt is extinguished by the passage of time) is an established area of law, death’s impact on it is a little less certain.

In the case at hand, the Appellant instituted action against his sister, the Respondent, in both her personal capacity (by virtue of her marriage to the Deceased being In Community of Property) as well as in her capacity as executrix of her late husband’s estate. The basis for the action emanated from Default Judgments that had been obtained against the Deceased while he was still alive. In her Plea in the court a quo, the Respondent relied on the defence of prescription and which defence the court recognised and upheld.

However, on appeal in the High Court, a different conclusion was reached. The court held that while it is accepted and trite that a normal debt prescribes after three years, where there is a debt claimed against a deceased estate or against a Deceased where an executor is yet to be appointed, then prescription is delayed by one year.

“In other words, a debt claimed from an estate of a deceased person or where the debtor is deceased and an executor has not yet been appointed, the debt ordinarily prescribes after three years, like any other debt in terms of section 11 of the Prescription Act, but the completion of prescription of such debts is delayed by a year from the day an executor is so appointed” (paragraph 16).

In this instance, the court had difficulty in ascertaining when prescription began to run. Reason being that while an executor had been appointed – i.e. the Respondent – she failed to disclose her date of appointment in her pleadings. As the one-year delay only runs from date of appointment, the absence of this fundamental fact prevented the court from making a final decision on this aspect of the matter.

Moreover, while the court found issue with certain key facts being ignored and/or not being sufficiently expounded upon, the court felt that the claim could not be treated as prescribed without having all of the necessary facts before it. As a result, the Special Plea brought by the Respondent was overturned with the matter being referred back to the court a quo to be decided.

As such, while the matter at hand is quite extreme, it is important to bear in mind that death does have an impact on prescription. Although ironic, death can, and does, extend the life of prescription.

For legal guidance on matters involving Deceased Estates and Executors, contact us.