Book Review: Extinctive Prescription

• Jurisdiction: South Africa
• Date: 25 May 2019
• Author: JP van Niekerk
• Pages: 404-405
• Published date: 25 May 2019
• Citation: (1997) 9 SA Merc LJ 404

Book Reviews/Boekresensies

Extinctive Prescription. By MM Loubser. Juta & Co Ltd, Cape Town.

1996. xxix & 239 pp. Price R220-00 (hard cover).

Extinctive prescription is probably the most problematical of all the different

ways in which legal obligations may be extinguished. The intricacies and

complexities of the topic are attested to by a large and continually expanding

body of case law, and by the fact that a separate Act of Parliament is devoted to

it. The South African legal fraternity therefore owes Loubser a (hopefully

inextinguishable) debt of gratitude for writing this book.

Extinctive Prescription

is the first detailed investigation of the topic and brings a

much needed theoretical and systematic approach to an area often cursorily

dismissed as practitioners' law. Theory, and with it the underlying policy

considerations, underpin much of the law of prescription and Loubser has

succeed eminently in contextualising the topic and the main aspects of the nature

and application of extinctive prescription in South African law.

In this regard chapter 1, in particular, is a tour de force. It deals with a number

of crucial matters. These include the theoretical foundation of extinctive

prescription (various theories are analysed and one of them — namely that

extinctive prescription confers upon the debtor a defence in the form of a

substantive right to refuse performance — supported as appropriate for our law);

the way in which the law of prescription seeks to manage the tension between

justice (which demands long and flexible periods of prescription) and legal finality

and certainty (which requires those periods to be short and rigid); the perceived

difference between extinctive and acquisitive prescription (both, according to

Loubser and following logically from his choice of applicable theory, are but

different forms of the same concept); the difference between strong and weak

prescription; and the fallacious distinction between extinctive prescription and

expiry or limitation periods.

But the other chapters are no less impressive. The concept of a 'debt', central to

the operation of the system of extinctive prescription, is discussed in chapter 2.

Loubser specifically addresses the important question whether 'debt' includes any

liability of whatever kind (i e, delictual, contractual, or otherwise) or merely the

duty to render some performance. The different periods of extinctive prescription

provided for in the Prescription Act 68 of 1969 for various types of debt, including

the rationale behind those different periods, are analysed in chapter 3. Other

aspects of the operation of extinctive prescription are considered in following

chapters: the commencement of the period of extinctive prescription (chapter 4);

the suspension and delay of extinctive prescription (chapter

5);

and the inter-

ruption of prescription (chapter 6). Throughout the relevant provisions of the

Prescription Act and the case law are critically dissected and discussed with clarity

and insight. Peripheral issues, such as the waiver of extinctive prescription,

extinctive prescription and counterclaims, and the calculation of time, are

similarly treated in separate chapters.

In chapter 10, the author tackles statutory limitation periods, often perceived to

be a related but distinguishable legal figure in that the expiry of such periods,

404

(1997) 9 SA Merc LJ 404

© Juta and Company (Pty) Ltd