Interruption of prescription in contractual disputes: A Critical Analysis of Rademeyer v Ferreira 2025 (1) BCLR 73 (CC) and its Implications for South African Contract Law

Abstract

The doctrine of prescription is a fundamental aspect of South African contract law, balancing the need for legal certainty with fairness in resolving disputes. However, prescription can be interrupted by an express or tacit acknowledgement of liability on the part of the debtor or the service on the debtor of any process whereby the creditor claims payment of the debt. This dissertation aims to critically examine the constitutional and legal dimensions of the interruption of prescription in contractual disputes in South African law, with specific reference to the Constitutional Court's ruling in Rademeyer v Ferreira 2025 (1) BCLR 73 (CC). The main issue in this case was whether the interruption of prescription in terms of section 15(1) of the Prescription Act 68 of 1969 sufficiently protects the right to access to court under section 34 of the Constitution, especially in cases when litigation is delayed. The Court’s finding emphasised that the right to access to court does not ensure the success of the litigant’s claim, holding that section 15(1) needs the process to be legitimately issued, properly on the debtor and vigorously prosecuted for the interruption to function. The research problem underlying this case asks whether the justification by the Court that section 34 of the Constitution of the Republic of South Africa, 1996 protects the right to have a legal dispute resolved by a court, but it does not guarantee the success of a litigant’s case, adequately upholds the right to access courts contained in section 34 of the Constitution. Section 15(1) of the Prescription Act 68 of 1969 allows interruption of prescription in terms of serving judicial process. When claims has prescribed and can no longer be enforced, concerns involving legal certainty, procedural fairness, and adherence to the Constitution also arise. The study employs a doctrinal method, analysing legislation, case law, and scholarly writing to examine the current state of the law. It first defines the legal regime for prescription and interruption in contract disputes. It then analyses the constitutional dimension and how the interruption of prescription can hinder or slow down access to justice for litigants. The Rademeyer judgment is then analysed in detail, observing how the Court interpreted statutory and constitutional provisions