When Does Prescription Really Start? A Closer Look At Knowledge Of A Claim

Prescription is often treated as a straightforward three-year period. In practice it is not. 

In South African law a claim generally prescribes three years from the date a debt becomes due. A debt is only due once the creditor has knowledge of both the identity of the debtor and the facts that give rise to the claim. That is where the real debate sits. 

In many matters, especially those involving professional advice or complex transactions, the issue is not when the event took place, but when the claimant knew or should reasonably have known that they had a claim. 

Knowledge is not automatic 

Courts no longer approach prescription as a simple calendar exercise. The question is whether the claimant had enough information to act. 

This does not require certainty. A claimant does not need to know that they will succeed but must have enough facts to recognise that something may be wrong and that they may have a claim. 

What counts as enough information to act will depend on the facts and circumstances of each case. 

Professional advice and delayed awareness 

This comes up often where professionals  are involved. 

A loss may occur at a specific point in time, but the client may not immediately appreciate that it stems from negligent advice or a failure in professional duty. In these situations prescription does not necessarily begin when the loss is suffered. It may begin later when the client becomes aware or ought reasonably to have become aware that the conduct may have been wrongful. 

Recent case law supports this approach. Where a claim is based on professional advice a layperson cannot always be expected to identify negligence without further input. In some instances, it is only once another professional provides an opinion that the claimant has enough knowledge to act. 

A great illustration of this principle is found in P.S.B obo Z.B v Member of the Executive Council responsible for Health: Eastern Cape (139/2022) [2026] ZAECBHC 4. In this case, a child was born asphyxiated at Frontier Hospital on 19 January 2018, suffered cerebral damage, did not cry after birth, and had seizures. Before discharge, the mother was counselled and told that her child would not follow a normal growth trajectory. The defendant argued that prescription began running from the date of birth, meaning the claim had prescribed by January 2021, being 3 years after the child’s birth. The plaintiff, however, contended that it was only in January 2022 — almost four years later — during a consultation with a medical doctor, that she first learned that her child had a neurological brain injury occasioned at birth, and that the medical staff who assisted during labour had not properly managed it or had missed foetal distress. Applying the principle set out in Links v Department of Health, Northern Province 2016 (4) SA 414 (CC), Kotzé AJ held that in cases involving professional negligence, the party relying on prescription must at least show that the plaintiff was in possession of sufficient facts to cause her, on reasonable grounds, to suspect that the injuries were due to the fault of medical staff. The court found that being told the child would not follow a normal growth trajectory fell "far short" of proving that the mother possessed the necessary knowledge for prescription to commence. The special plea of prescription was accordingly dismissed. 

The case underscores the gap that can exist between knowing that something has gone wrong and understanding that it may be attributable to negligence. Prescription did not begin when the injury became apparent. It began when the mother had enough information, obtained through professional advice, to connect the harm to possible fault. 

The focus, in these instances, shifts from when something happened to when it could reasonably be understood. 

Reasonable knowledge 

Courts look at what the claimant actually knew and what they could have known with reasonable care. 

A claimant cannot ignore clear warning signs. If the facts point to a problem there may be a duty to investigate. This is well illustrated by the Constitutional Court's reasoning in Loni v Member of the Executive Council, Department of Health, Eastern Cape 2018 (3) SA 335 (CC), where the court distinguished the position from Links and found that there were sufficient indicators that the medical staff had failed to provide proper care — pain, infection, and oozing pus — such that the claimant should have over time suspected fault and sought advice. The contrast with the P.S.B case is instructive: where a claimant has visible and intelligible signs of substandard treatment, a duty to investigate may arise; where the nature of the injury is such that a layperson cannot identify its cause without specialist input, prescription will not begin to run merely because the claimant knows the outcome is poor. 

At the same time the courts accept that in technical matters identifying a claim may require specialist input. The test is therefore applied with some realism. 

Why this matters 

Timing plays a vital role in determining whether a claim still stands. 

It is not enough to merely look at when the underlying event took place. The question is when the claimant had or should have had enough information to act. 

From a practical perspective this makes early legal input vital when issues arise.  Where a client suspects that a professional may have fallen short, obtaining an independent opinion promptly serves a dual purpose: it clarifies the factual position and it fixes the point from which prescription is likely to run. Delay in seeking that advice does not necessarily assist the claimant; as Loni illustrates, where there are visible and intelligible signs of substandard treatment, the courts may find that the claimant ought to have acted sooner. It also means that potential claims should not be written off too quickly on the assumption that the claim has prescribed. A careful analysis of what the claimant actually knew, and when, will often reveal that the position is less straightforward than it appears on a simple calendar calculation. 

Prescription remains a strong defence, but it is not always as clear-cut as it first appears.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.