Road Accident Fund and Another v Mdeyide

JurisdictionSouth Africa
JudgeNgcobo CJ, Moseneke DCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Mogoeng J, Nkabinde J, Skweyiya J, Van Der Westhuizen J and Yacoob J
Judgment Date30 September 2010
Citation2011 (2) SA 26 (CC)
Docket NumberCCT 10/2010
Hearing Date11 May 2010
CounselA Beyleveld SC (with S Budlender) for the first and second appellants. V Soni SC (with S Louw) for the respondent.
CourtConstitutional Court

Van der Westhuizen J:

Introduction B

[1] The fundamental right of access to courts is essential for constitutional democracy under the rule of law. [1] In order to enforce one's rights under the Constitution, legislation and the common law, everyone must be able to have a dispute that can be resolved by the application of law, decided by a court. The right of access to courts is thus protected in the C Constitution. [2]

[2] In the interests of social certainty and the quality of adjudication, it is important, though, that legal disputes be finalised timeously. The realities of time and human fallibility require that disputes be brought D before a court as soon as reasonably possible. Claims thus lapse, or prescribe, after a certain period of time. If a claim is not instituted within a fixed time, a litigant may be barred from having a dispute decided by a court. This has been recognised in our legal system — and others — for centuries.

E [3] At present prescription is provided for by the Prescription Act [3] in general and by other Acts of Parliament regulating specific areas. One of these is the Road Accident Fund Act [4] (RAF Act), a statute that provides for the establishment of the Road Accident Fund (RAF or Fund) and for compensation of victims of motor vehicle accidents.

[4] This matter requires the balancing of the right of access to courts and F the need for the fair and manageable prescription of claims. It poses the question whether a provision of the RAF Act [5] violates the right of access to courts and is thus unconstitutional, because it determines that claims against the RAF prescribe if not instituted within three years from the date the cause of action arose, even if the claimant does not know of the G existence of the RAF. This question has to be answered against the background of South Africa's socioeconomic conditions, including a very significant degree of poverty and illiteracy, as well as the necessity of effective management of public finances earmarked for the compensation of people who need it for the restoration of some quality of life and H human dignity.

Van der Westhuizen J

Constitutional and legal framework A

[5] It is convenient to first set out the applicable constitutional and legal framework and to look into the meanings of some of the core concepts of prescription that are central to this matter. Thereafter the facts of this case, its litigation history and the submissions presented to this court will be summarised, before the questions posed are dealt with and a B conclusion is reached.

[6] Section 34 of the Constitution enshrines the right of access to courts and states that '(e)veryone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial C tribunal or forum'. [6] The Constitution also recognises the values of human dignity and the advancement of human rights, and requires the State to respect, protect, promote and fulfil the rights recognised in it. [7]

[7] Rules of prescription — providing that claims become extinct after a period of time — are common in our legal system and apply to all civil D claims. The Prescription Act and other Acts of Parliament, including the RAF Act, provide for specific periods in respect of claims brought in terms of those Acts. The origin of rules of prescription in our legal system dates back to Roman times. [8] Under the common law the prescription period was generally 30 years. [9] These rules were codified in the Prescription Act 18 of 1943, which was replaced by the current E Prescription Act 68 of 1969 (Prescription Act).

[8] This court has repeatedly emphasised the vital role time limits play in bringing certainty and stability to social and legal affairs, and maintaining the quality of adjudication. Without prescription periods, legal disputes F would have the potential to be drawn out for indefinite periods of time, bringing about prolonged uncertainty to the parties to the dispute. The quality of adjudication by courts is likely to suffer as time passes, because evidence may have become lost, witnesses may no longer be available to testify, or their recollection of events may have faded. [10] The quality of adjudication is central to the rule of law. For the law to be respected, H

Van der Westhuizen J

A decisions of courts must be given as soon as possible after the events giving rise to disputes, and must follow from sound reasoning, based on the best available evidence.

[9] The precise manner in which prescription functions is determined B through the application of a number of concepts. Some regulate the scope of a particular prescription clause. The manner in which prescription begins to run may furthermore be determined in a number of ways, usually with reference to the scope of the prescription clause.

[10] The Prescription Act deals with prescription in general. In terms of C s 10 a debt is extinguished by prescription after the lapse of the period which applies in respect of the prescription of the debt. [11] A claim is thus after a certain period of time no longer actionable and justiciable. It is a deadline which, if not met, could deny a plaintiff access to a court in respect of the specific claim.

D [11] Generally under the Prescription Act, prescription applies to a debt. For the purposes of this Act, the term 'debt' has been given a broad meaning to refer to an obligation to do something, be it payment or delivery of goods or to abstain from doing something. [12] Although it may on occasion be doubtful whether an obligation is indeed a debt in terms of the Act, [13] there is no doubt that a claim under the RAF Act constitutes E a debt. However, the RAF Act regulates the prescription of claims under it and some of the differences between the two statutes have been placed at the core of this matter.

Van der Westhuizen J

[12] The period of prescription is important. Section 11 of the Prescription A Act provides for generic prescription periods. Generally, the prescription period is three years. [14] Section 23(1) of the RAF Act provides for the same period in regard to claims against the RAF. [15]

[13] When does prescription begin to run? This question is central to the B present enquiry. Section 12(1) of the Prescription Act stipulates that it begins as soon as the debt is due. A debt is due when it is 'immediately claimable or recoverable'. [16] In practice this will often coincide with the date upon which the debt arose, although this is not necessarily always so. In terms of s 12(3) of the same Act, a debt is deemed to be due when C a creditor has knowledge of the identity of the debtor and of the facts from which the debt arises. A creditor is deemed to have the required knowledge if she or he could have acquired it by exercising reasonable care. [17] Furthermore, s 13 provides for circumstances in which the completion of prescription is delayed, for example, when the creditor is a minor, insane, or outside the Republic, or in certain other circumstances. [18] D

Van der Westhuizen J

A [14] The RAF Act differs from the Prescription Act on the starting point of the prescription period. Section 23(1) provides for prescription of claims in terms of s 17 [19] of the Act:

'(1) Notwithstanding anything to the contrary in any law contained, but subject to subsections (2) and (3), the right to claim compensation B under section 17 from the Fund or an agent in respect of loss or damage arising from the driving of a motor vehicle in the case where the identity of either the driver or the owner thereof has been established, shall become prescribed upon the expiry of a period of three years from the date upon which the cause of action arose.'

C [15] The scope of s 23 is thus defined in terms of claims under the RAF Act and not under the general rubric of debt. Section 23(1) of the RAF Act establishes a prescription period limited to claims under s 17 against the Fund or an agent in respect of loss or damage arising from the driving of a motor vehicle in the case where the identity of either the driver or the D owner thereof has been established.

Van der Westhuizen J

[16] From the wording of ss 17 and 23(1) it appears that two situations A are envisaged by the RAF Act, namely when the identity of the driver or owner of the motor vehicle has been identified, and when this has not happened. This matter deals only with the first of these two.

[17] The RAF Act provides for exceptions. Prescription does not run B against a minor, anyone detained as a patient in terms of mental health legislation or anyone under curatorship. [20]

[18] Section 12(3) of the Prescription Act builds a specific 'knowledge requirement' into the scheme of s 12, though. As pointed out earlier, the subsection stipulates that a debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from C which the debt arises. [21]

[19] In terms of s 23(1) of the RAF Act, on the other hand, prescription runs from the date upon which the cause of action arose. [22] The term 'cause of action' has been defined as 'every fact which . . . would be D necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court'. [23] In the case of claims under the RAF Act, the elements of a cause of action are established in terms of s 17 [24] and include bodily injury or death, caused by or arising out of the negligent driving of a motor vehicle, or a wrongful act on behalf of the driver or owner of the motor vehicle. E

[20] In contrast to s 12(3) of the Prescription Act, s 23(1) of the RAF Act does not provide that prescription starts to run only when the creditor acquires...

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59 practice notes
  • Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd
    • South Africa
    • Invalid date
    ...Africa, and Another F 2005 (4) SA 319 (CC) (2005 (3) BCLR 231; [2004] ZACC 24): referred to Road Accident Fund and Another v Mdeyide 2011 (2) SA 26 (CC) (2011 (1) BCLR 1; [2010] ZACC 18): dictum in para [1] applied S v Boesak 2001 (1) SA 912 (CC) (2001 (1) SACR 1; 2001 (1) BCLR 36; [2000] Z......
  • Trinity Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd
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  • Makate v Vodacom Ltd
    • South Africa
    • Invalid date
    ...1953 (1) SA 155 (T): referred to R v Dhlumayo and Another 1948 (2) SA 677 (A): applied Road Accident Fund and Another v Mdeyide 2011 (2) SA 26 (CC) (2011 (1) BCLR 1; C [2010] ZACC 18): dictum in para [10] Rosebank Television & Appliance Co (Pty) Ltd v Orbit Sales Corporation (Pty) Ltd 1969 ......
  • Van Zyl NO v Road Accident Fund
    • South Africa
    • Invalid date
    ...regulated exclusively by s 23. The SCA declared itself bound by the Constitutional Court's judgment in Road Accident Fund v Mdeyide 2011 (2) SA 26 (CC) (2011 (1) BCLR 1; [2010] ZACC 18), which held in similar but not identical circumstances that s 12(3) of the Prescription Act did not apply......
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54 cases
  • Paulsen and Another v Slip Knot Investments 777 (Pty) Ltd
    • South Africa
    • Invalid date
    ...Africa, and Another F 2005 (4) SA 319 (CC) (2005 (3) BCLR 231; [2004] ZACC 24): referred to Road Accident Fund and Another v Mdeyide 2011 (2) SA 26 (CC) (2011 (1) BCLR 1; [2010] ZACC 18): dictum in para [1] applied S v Boesak 2001 (1) SA 912 (CC) (2001 (1) SACR 1; 2001 (1) BCLR 36; [2000] Z......
  • Trinity Asset Management (Pty) Ltd v Grindstone Investments 132 (Pty) Ltd
    • South Africa
    • Invalid date
    ...Insurance Co Ltd 1963 (1) SA632 (A): referred toRidley v Marais 1939 AD 5: dictum at 9 appliedRoad Accident Fund and Another v Mdeyide 2011 (2) SA 26 (CC) (2011 (1)BCLR 1; [2010] ZACC 18): referred toSantam Ltd v Ethwar 1999 (2) SA 244 (SCA) ([1999] 1 All SA 252; [1998]ZASCA 102): referred ......
  • Makate v Vodacom Ltd
    • South Africa
    • Invalid date
    ...1953 (1) SA 155 (T): referred to R v Dhlumayo and Another 1948 (2) SA 677 (A): applied Road Accident Fund and Another v Mdeyide 2011 (2) SA 26 (CC) (2011 (1) BCLR 1; C [2010] ZACC 18): dictum in para [10] Rosebank Television & Appliance Co (Pty) Ltd v Orbit Sales Corporation (Pty) Ltd 1969 ......
  • Van Zyl NO v Road Accident Fund
    • South Africa
    • Invalid date
    ...regulated exclusively by s 23. The SCA declared itself bound by the Constitutional Court's judgment in Road Accident Fund v Mdeyide 2011 (2) SA 26 (CC) (2011 (1) BCLR 1; [2010] ZACC 18), which held in similar but not identical circumstances that s 12(3) of the Prescription Act did not apply......
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