Prescription in Botswana: When Time Runs Out on a Legal Claim

Where more than one period could apply to the same cause of action, the longest period applies (section 5). The Act also provides that a defence cannot prescribe before the claim itself does, and that a judgment which is not a money or specific-performance judgment never prescribes.

When does the clock start?

Section 6 distinguishes between types of claim:

• Damages where the debtor is known: from the date the creditor learned of the wrong, or could reasonably have been expected to learn of it, whichever is earlier.
• Damages where the debtor is unknown: from the date the creditor ascertained, or could reasonably have ascertained, the debtor’s identity.
• Other claims: from the date the right of action first accrued.
• Claims for remuneration: from completion of the work or services, or when the employment relationship ended in respect of that matter, whichever is earlier.
  
  

The knowledge test in damages claims matters a great deal in practice. It has been tested in medical negligence matters, where the injury and its cause are often not immediately apparent. The Court of Appeal considered the limits of prescription in that context in GMJ v Attorney General.

Interruption: starting the clock afresh

Prescription is interrupted, and begins to run again from the date of the interruption, when:

• the debtor acknowledges the debt by part payment, payment of interest, giving security, or admitting liability in any other way, whether expressly or by implication;
• process instituting an action is served on the debtor;
• the dispute is submitted to arbitration; or
• a claim is filed in an insolvent estate, against a company in liquidation, or against a deceased estate.

An admission of liability that is not in writing cannot extend the period beyond three years after the original period would have expired. Interruption against a principal debtor also interrupts prescription against the surety. Creditors should note that it is service of process, not merely issuing a summons, that interrupts prescription.

Suspension: when the clock pauses

Time does not run, and resumes with only the unexpired balance afterwards, while:

• performance is delayed by vis major, or the debtor is lawfully entitled to delay performance;
• the creditor is under a disability;
• the debtor is absent from Botswana for more than six months; or
• the creditor has been prevented from discovering the facts by the debtor’s fraud, or the claim itself is founded on fraud, until the fraud could reasonably have been discovered.

A person under disability includes a minor, a person under curatorship, spouses (unless living apart) in actions between them, and partners in actions arising from the partnership. For such creditors, prescription does not begin to run until the disability ends. Likewise, where the debtor is absent from Botswana, prescription does not begin until the debtor returns.

Other points worth knowing

• A prescribed debt is not wholly dead. It may be set off against a later debt and can support a contract of suretyship, but it cannot be ceded. After 30 years from the date the right of action arose, even these effects fall away.
• Prescription must be pleaded. A party who relies on it must raise it in the pleadings, although the court may allow it to be raised at any stage.
• The State is bound. The Act binds the Government, with the 15-year period for State loan and advance claims.
• Account claims. Including a live claim in an account does not revive a claim that has already prescribed.
• Customary law. The Act does not apply to disputes between persons subject to customary law where the Customary Courts Act makes customary law applicable.
• Other statutes. Time limits in other legislation remain in force, so a claim must always be checked against any sector-specific limitation period as well.
  
  

Practical takeaways

• Diarise limitation dates from the moment a claim arises. Do not wait for a dispute to harden.
• Remember that three years is the default for many everyday commercial claims, including oral contracts, services, rent and interest.
• Serve process before the period expires. Sending a letter of demand does not interrupt prescription.
• Keep written acknowledgements of debt. A signed acknowledgement or part payment restarts the clock.
• Debtors should plead prescription early and in the pleadings, and should be careful that informal acknowledgements do not revive a claim.