Van Zyl NO v Road Accident Fund

• Jurisdiction: http://justis.com/jurisdiction/166,South Africa
• Judge: Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Mhlantla J, Pillay AJ, Theron J, Tlaletsi AJ and Tshiqi J
• Judgment Date: 19 November 2021
• Court: Constitutional Court
• Hearing Date: 19 November 2021
• Citation: 2022 (3) SA 45 (CC)
• Counsel: G Budlender SC (with M Harrington) for the applicant. TJM Patterson SC (with KL Watt) for the respondent.
• Docket Number: CCT 114/20 [2021] ZACC 44

Pillay AJ (Mogoeng CJ and Khampepe J concurring):

Introduction

'An unjust law is not a law.' [1]

[1] On May Day 2010 Mr Koos Jacobs was seriously injured in a motor vehicle accident. As a result of the accident, he suffered severe head injuries that impaired his mental capacity. He was unable to manage his own affairs. More particularly, he was unable to lodge his claim against the Road Accident Fund (RAF). Acting on his behalf, his mother lodged his claim for damages with the RAF on 18 January 2017, some seven years after the accident.

[2] On 28 November 2017 Mr Jacobs' mother secured a court order appointing Ms Phillipa Susan van Zyl NO, the applicant, as his curatrix ad litem. [2] Ms Van Zyl instituted an action against the RAF for payment of damages on his behalf on 8 March 2018.

[3] In terms of s 23(1) of the Road Accident Fund Act (RAF Act), [3] the claim should have been filed within three years of the accident, that is, by 30 April 2013. However, s 23(2)(b) and (c) of the RAF Act protect persons against prescription if they have mental disabilities, and consequently, are detained in terms of mental-health legislation or placed under curatorship. People with mental disabilities who are neither so detained nor under curatorship, and who are therefore not expressly protected by s 23(2)(b) and (c) of the RAF Act, will be referred to as 'affected persons'.

Pillay AJ (Mogoeng CJ and Khampepe J concurring)

[4] Mr Jacobs' injuries from the accident rendered it impossible for him to know about the requirements of s 23 of the RAF Act and to act on his own to lodge his claim. Although he qualified for the appointment of a curatrix ad litem to assist him with the litigation, he neither knew nor had the capacity to have a curatrix appointed timeously to qualify for the protection against prescription under s 23(2)(c) of the RAF Act. Consequently, Mr Jacobs, like other affected persons, did not fall within the classes of persons expressly protected against prescription under s 23(2) of the RAF Act. Can Mr Jacobs' claim against the RAF be saved from prescription?

Litigation history

[5] In the High Court of South Africa, Eastern Cape Division, Grahamstown, the RAF raised a special plea of prescription. In response to the special plea, the applicant, relying on Mr Jacobs' mental incapacity, submitted first that he would have qualified for the appointment of a curatrix ad litem, and second, that ss 12(3) or 13(1)(a) of the Prescription Act [4] would apply to suspend the running of prescription. [5]

[6] Following rule 37 exchanges, [6] and purely for the purposes of determining the special plea of prescription, the RAF admitted the contents of certain medicolegal reports, which expressed an opinion that Mr Jacobs was mentally incapacitated because of the injuries he had sustained in the accident. [7] However, the RAF reserved its rights to contest liability on the merits, including the cause of his injuries and quantum, if the special plea was dismissed.

[7] The High Court upheld the special plea. Because the applicant did not raise any constitutional issue, the High Court awarded costs against her. [8] With the leave of the High Court, the Supreme Court of Appeal heard the appeal. Unanimously, it held:

'In the present case the incidence of prescription should have been managed by the timeous detention of Mr Jacobs in terms of the mental health legislation and/or by the appointment of a curator ad litem who could have instituted his claims timeously. This would have suspended the running of prescription in terms of s 23(2)(c) of the RAF Act. The construction that I have placed on s 23 of the RAF Act does not have the effect of preventing the dispute between the appellant and the RAF from being resolved by a court of law nor does it undermine the purpose of the RAF Act. Regrettable as this result may be, the Constitutional Court

Pillay AJ (Mogoeng CJ and Khampepe J concurring)

has already considered the interpretation of the RAF Act and held that claims under the Act are governed exclusively by the provisions of the said Act to the exclusion of any other law.

For these reasons, I hold that the Prescription Act does not apply to claims for compensation under the RAF Act. It is excluded because its provisions are inconsistent with those of the RAF Act relating to prescription. Section 23 of the RAF Act was intended to be fully comprehensive on the subject of claims for compensation under the RAF Act and was intended to exhaust its subject matter. The High Court was therefore correct in upholding the special plea of prescription.' [9] Having regard to Mr Jacobs' impecunious circumstances, the Supreme Court of Appeal made no order for costs.

[8] Relying on Mdeyide II, [10] the Supreme Court of Appeal held that Mr Jacobs' situation should have been managed by detaining him timeously in terms of mental health legislation or by appointing a curator ad litem to institute his claims within the prescribed period. This, it said, would have suspended the running of prescription in terms of s 23(2)(c) of the RAF Act. [11]

[9] However, the picture of poverty and illiteracy painted in Mdeyide II militates against the likelihood of people with disabilities being able to help themselves, or being helped by others, to prevent their claims from prescribing. Hence, this appeal against the judgment of the Supreme Court of Appeal is as much about restoring the human dignity of people with disabilities as it is about compensating them financially.

Jurisdiction

[10] This matter involves the interpretation of the Prescription Act and the RAF Act and their intersection with ss 34 [12] and 39(2) [13] of the Constitution. The right to dignity of the affected persons is also in

Pillay AJ (Mogoeng CJ and Khampepe J concurring)

issue. [14] There is some debate as to whether the matter at hand engages this court's jurisdiction on the basis that the questions that arise may not be novel and may have already been decided. This is because this court was faced with a similar challenge in Mdeyide II. On the facts, Mr Mdeyide was blind and illiterate, but not mentally incapacitated. He was unaware of the law. Two years and six months before his claim prescribed, he found out that he could claim against the RAF. Unlike Mr Jacobs, Mr Mdeyide was aware of his rights before his claim prescribed. Consequently, in Mdeyide II, this court limited the issues it had to decide to whether s 12(3) of the Prescription Act applied to claims under s 23(1) of the RAF Act, by virtue of s 16 of the Prescription Act. [15] It answered that question in the negative. This case is about the application of s 13(1) of the Prescription Act to claims under s 23(2) of the RAF Act. Therefore, novel issues of law arise concerning the availability of protective measures for affected persons. [16] As such, this litigation transcends the interests of the parties. [17] Jurisdiction is established.

Leave to appeal

[11] Mdeyide II is the springboard for this appeal because the facts of that matter align closely with the facts presently under consideration. Both claimants were impeded by their disabilities. However, a significant

Pillay AJ (Mogoeng CJ and Khampepe J concurring)

difference is that Mr Mdeyide was aware that he had to lodge his claim before it prescribed. As stated above, this court defined the issue for its determination in Mdeyide II to be whether s 12(3) of the Prescription Act applied to claims made under the RAF Act. [18] By distinguishing that the event triggering the running of prescription under the RAF Act was the motor vehicle accident itself, and not knowledge of the identity of the debtor, this court found that s 12(3) of the Prescription Act and s 23(1) of the RAF Act were inconsistent with each other. It declined to apply s 12(3) to save the claim from prescribing. [19]

[12] In this case, based on its reading of Mdeyide II, the Supreme Court of Appeal upheld the plea of prescription. It interpreted Mdeyide II to mean that 'the question of prescription of third-party claims is solely governed by the RAF Act'. [20] As described more fully below, the applicant challenges that decision by asserting principally that Mdeyide II is distinguishable both on the facts and the law applied. Furthermore, that interpretation, she contends, excludes the affected persons from protection against prescription; it limits their rights under s 34, without having regard to s 39(2) of the Constitution. Pitched with these challenges, questions arise about whether Mdeyide II ousts the application of the Prescription Act for all road accident claimants, including the affected persons, and ultimately, whether the Supreme Court of Appeal's reliance on Mdeyide II was justified. For these reasons, this matter has reasonable prospects of success. Consequently, leave to appeal against the judgment of the Supreme Court of Appeal is granted.

Submissions

[13] Before this court, the applicant claims that this matter implicates the affected persons' right of access to courts under s 34 of the Constitution. Counsel for the applicant urges us to extend the application of s 13(1)(a) of the Prescription Act to the affected persons by adopting a harmonious reading of its provision with that of s 23(2) of the RAF Act.

[14] For support, the applicant looks to Supreme Court of Appeal jurisprudence on the interplay between s 13(1)(a) of the Prescription Act and the RAF Act. By way of illustration, the applicant directs this court to Smith NO. [21] There the claimant, Mr Sibiya, who had been injured in a motor vehicle accident, was mentally impaired. Five years after the accident, Mr Sibiya's curator ad litem lodged his claim for compensation with the Multilateral Motor Vehicle Accidents Fund (MMVAF), the predecessor to the RAF. Applying s 13(1)(a...