The Constitutionality of Prescription Periods in the South African Law

The Constitution protects the right to equality and access to courts. There it manifests unfairness in according public institutions special protection, which is not extended to private persons with claims against the state. This may imply an absence of equal protection and benefit of the law. Some prescription periods contained in statute create inequalities between people with civil claims against public institutions and those against other defendants. By not affording the plaintiff with condonation for failure to institute a claim within the prescribed period, claimants with genuine claims may not have the opportunity to institute their cases even where there is a just cause for not instituting such a claim on time. Since the Presciption Act does not provide for condonation after the lapse of the prescribed period for three years (the period prescribed for ordinary claims in terms of section 11(d) of the Prescription Act 68 of 1969), this creates the problem with genuine claims, which for reasons beyond their control, would be deprived of redress. In conclusion those courts should be granted the power to condone, on good cause shown, the late institution of a claim, where the debt has prescribed in terms of section 11(d) of the Prescription Act. JEL Classification: K1