How to check if a debt has prescribed

Checking whether an old debt has prescribed comes down to three questions. When did the debt become due? When did you last pay anything or admit that you owed it? Was a summons ever served on you? If more than three years have passed since the later of the first two, and no summons was served, an ordinary debt such as a credit card, store account or personal loan will normally have prescribed under the Prescription Act 68 of 1969.

Prescription means the creditor loses the right to enforce the debt. It does not mean the debt was paid. And it is not automatic in the practical sense: a court will not apply prescription for you, so you have to raise it.

Step 1: Identify what kind of debt it is

The period is not the same for everything.

• Three years for ordinary contractual debt, which covers most consumer credit: credit cards, store accounts, personal loans, overdrafts, vehicle finance, cellphone contracts, and unpaid municipal and telephone accounts.
• Thirty years for a mortgage bond, a judgment debt, and certain debts owed to the state such as those arising from mining rights and profit shares.

If a judgment has already been granted against you, prescription will not help. That is why the first thing to check is your credit report.

Step 2: Pull your credit report

You are entitled to a free credit report once a year from each registered credit bureau. The main bureaus in South Africa include TransUnion, Experian, Compuscan and XDS, and they hold different data, so pull more than one.

On the report, look for:

• the account, the credit provider and the date it was opened
• the date of last payment and the date the account went into default
• any court judgment recorded against you, with a date
• any administration or debt review flags

A judgment on the record is a red flag for prescription purposes, because it converts the debt into a 30 year debt.

Step 3: Find the date of your last payment

This is the number that usually decides the case, and bank statements are the best proof. Order statements covering the period around when you stopped paying. A single small debit order, a partial payment, or even a payment made by a family member on your behalf can move the date.

If you cannot get statements that far back, ask the creditor in writing for a full statement of account showing every payment received. A collector who wants to be paid will usually provide it.

Step 4: Look for any acknowledgement

An acknowledgement restarts the three years. It does not have to be formal. Things that typically count:

• signing an acknowledgement of debt
• agreeing, in writing or by phone, to a payment arrangement
• an email or SMS saying you will pay when you can
• a payment of any size
• including the debt in a debt review application or an administration order

Search your email, your SMS history and your WhatsApp for the creditor's name or the account number. If you dealt with a collection agency at any point, that correspondence matters as much as correspondence with the original creditor.

Step 5: Check whether a summons was ever served

This is the step people skip, and it is the one that most often produces a surprise. A summons served at an old address, or on a family member at that address, can be valid service even though you never saw it. If a summons was served, prescription was interrupted, and if default judgment followed, the debt is now a judgment debt.

Ways to check:

• your credit report, which records judgments
• the clerk of the civil court in the district where you lived at the time, using your ID number
• asking the creditor or collector in writing for the case number and a copy of the return of service

Step 6: Do the arithmetic

Take the later of the date the debt became due and the date of your last payment or acknowledgement. Add three years. If that date has passed, and no summons was served in the meantime, the debt has very likely prescribed. Our prescription checker will do this calculation with you and flag the things that interrupt the clock.

Note that prescription can also be delayed in certain circumstances, for example while the debtor was outside the country, so an unusual history is worth checking with an attorney.

What to do once you believe it has prescribed

1. Do not pay anything. Not a settlement, not a token payment, not a "goodwill gesture". A payment restarts the three years and revives the debt.
2. Do not sign anything that admits the debt.
3. Write to the collector, by email, saying that you raise prescription in terms of the Prescription Act 68 of 1969, that the last payment was made on a specific date, and that you require them to stop collection. Keep the email.
4. Check your credit report and dispute any listing that should no longer be there. The process is free and set out in our guide on disputing a credit listing.
5. Complain if they persist. The National Credit Act 34 of 2005 prohibits collecting on a prescribed debt where the consumer raises prescription, and prohibits selling prescribed debt. Complain to the National Credit Regulator on 0860 627 627, the Credit Ombud, which now forms part of the National Financial Ombud Scheme South Africa, or the Council for Debt Collectors.

If you receive a summons on an old debt

Do not ignore it. If you do nothing, default judgment can be granted even on a debt that had prescribed, because the court will not raise prescription on its own. Prescription is a defence you must plead, within the time limits set out in the summons.

Get help quickly. Legal Aid South Africa can be reached on 0800 110 110 and our legal aid page explains who qualifies. University law clinics and, for smaller amounts, the Small Claims Court, which deals with claims up to R20 000 without an attorney, are also worth knowing about.

For a fuller explanation of what prescription actually does once it has happened, see what happens when a debt prescribes.