Road Accident Fund v Smith NO

• Jurisdiction: South Africa
• Court: Supreme Court of Appeal
• Judge: van Heerden DCJ, Harms JA, Schutz JA, Melunsky AJA, Farlam AJA
• Judgment Date: 28 September 1998
• Citation: 1999 (1) SA 92 (SCA)
• Hearing Date: 07 September 1998
• Docket Number: 555/96
• Counsel: JR Gauschi for the appellant CE Puckrin (with him I Smith) for the respondent

Van Heerden DCJ:

On 27 May 1989 Mr V N Sibiya sustained bodily injuries when two motor vehicles collided I in Soweto. Some five years later the respondent was, in terms of an order of Court dated 14 June 1994, appointed as curator ad litem to Sibiya by reason of his mental derangement. Shortly thereafter the respondent, on behalf of Sibiya, lodged a claim for compensation in terms of art 62 of the Schedule ('the Agreement') to the Multilateral Motor Vehicle Accidents Fund Act 93 of J

Van Heerden DCJ

1989 ('the 1989 Act'). This claim was lodged with the Multilateral Motor Vehicle Accidents Funds ('the Fund') A whose rights and obligations subsequently devolved upon the present appellant under s 2(2)(a) of the Road Accident Fund Act 56 of 1996.

During September 1995 the respondent instituted action against the Fund in the Witwatersrand Local Division. On behalf of Sibiya he claimed damages in respect of the aforesaid injuries. In a special plea the Fund averred that the B claim had become prescribed on 26 May 1991, ie two years after the date of the collision. To this plea the respondent replicated as follows:

'2.1

by virtue of the provisions of the Prescription Act 68 of 1969 prescription does not run against an insane C person or a person under curatorship and Sibiya is both insane and a person under curatorship as contemplated in the aforesaid Act;

2.2

Furthermore, art 56 of the Multilateral Motor Vehicle Accidents Fund Act provides that prescription shall not run against a person under curatorship and Sibiya is a person under curatorship as contemplated.' D

The replication evoked an exception by the Fund. Its bases were that art 56 of the Agreement, which does not provide for suspension of prescription in respect of a claim of an insane person, regulates the running of prescription under the 1989 Act to the exclusion of the Prescription Act 68 of 1969 ('the Prescription Act'), and E that at the time of the respondent's appointment as curator ad litem the claim had already become prescribed.

The matter came before Schabort J who found that because Sibiya was insane the period of prescription prescribed by art s 55 of the Agreement had not been completed when action was instituted by the respondent. F Consequently he dismissed the exception with costs but subsequently granted the Fund leave to appeal to this Court. Still later the Road Accident Fund was substituted as the appellant in the appeal.

It will have been observed that in the replication it was alleged that 'Sibiya is insane' (present tense). At the G hearing of the appeal we were informed, however, that the parties had agreed (i) that Sibiya was in fact insane from the date of the collision, and (ii) that a judgment on the exception would finally dispose of the issues raised by it.

As adumbrated above, the main issue in the Court a quo, and also before us, was whether the running of prescription in respect of Sibiya's claim under the 1989 Act was governed solely by the provision of arts 55 and 56 H of the Agreement, or whether s 13(1) of the 1969 Prescription Act also was applicable. Article 55, as originally enacted, made provision for a period of prescription of two years 'from the date upon which the claim arose'. This article was not amended until 1 November 1991 (Proclamation 102 of 1991 published in Government Gazette 13597 of that date), ie more than two years after the date of the collision. I

On appeal it was rightly common cause:

(a)

that originally Sibiya's claim lay against an agent appointed under art 13 of the Agreement;

(b)

that no claim for compensation was lodged prior to June 1994, and J

Van Heerdein DCJ

(c)

that, if the provisions of s 13(1) of the 1969 Prescription Act, relative to insane persons, did not apply, A Sibiya's claim would have become prescribed on 26 May 1991.

Insofar as material for present purposes art 56 provided:

'Prescription of a claim for compensation . . . shall not run against -

(a)

a minor; B

(b)

any person detained as a patient in terms of the provisions of mental health legislation . . .

(c)

a person under curatorship.'

It is immediately apparent that save where (b) or (c) applied, art 56 made no provision for the suspension of the running of prescription against an insane person. C

The material provisions of s 13(1) of the Prescription Act read:

'13(1) If -

(a)

the creditor is a minor or is insane or is a person under curatorship or is prevented by superior force including any law or any order of court from interrupting the running of prescription . . .; or D

. . .

(h)

the creditor or the debtor is deceased and an executor of the estate in question has not yet been appointed; and

(i)

the relevant period of prescription would, but for the provisions of this subsection, be completed before or on, or within one year after, the day on which the relevant impediment referred to in para (a) . . . or (h) has ceased to E exist,

the period of prescription shall not be completed before a year has elapsed after the day referred to in para (i).'

Three observations are apposite. First, unlike art 56 of the Agreement, s 13(1) of the Prescription Act does not provide for a suspension of prescription properly so called. It does, however, provide for an extension of the period F of prescription. (I shall revert to this at a later stage.) Second, in the case of, inter alia, an insane creditor the completion of prescription is delayed whether or not he is detained in terms of mental health legislation. Third, if s 13(1) governed the running of prescription in respect of Sibiya's claim, it could not have become prescribed by 26 May 1991. G

Before dealing with the precursors of the 1989 Act it is convenient to draw attention to s 16(1) of the 1969 Prescription Act. Subject to a proviso which is not material to this appeal, it provides that:

'(1) . . . the provisions of this chapter [which includes s 13] shall, save insofar as they are inconsistent with the H provisions of any Act of Parliament which prescribes a specified period within which a claim is to be made or an action is to be instituted in respect of a debt or imposes conditions on the institution of an action for the recovery of a debt, apply to any debt arising after the commencement of this Act.'

In parenthesis I should mention that the Agreement is stricto jure not an Act of Parliament. In terms of s 2(1) of I the 1989 Act it does, however, have the force of law and falls to be applied as if it were an Act of Parliament.

Prior to its amendment by the Compulsory Motor Vehicle Insurance Amendment Act 69 of 1978, the Compulsory Motor Vehicle Insurance Act 56 of 1972 ('the 1972 Act') did not provide for suspension of J

Van Heerden DCJ

prescription. Nor did the Motor Vehicle Insurance Act 29 of 1942 ('the 1942 Act'). Subsequent to the amendment, A however, s 24(1)(b) of the 1972 Act contained provisions virtually identical to those of art 56 of the Agreement. So did s 14(1)(b) of the Motor Vehicle Accidents Act 84 of 1986 ('the 1986 Act').

The question whether the amended s 24(1) of the 1972 Act precluded the application of common-law rules relating B to the suspension of prescription of claims under the 1972 Act, was considered in Terblanche v South African Eagle Insurance Co Ltd 1983 (2) SA 501 (N). In that case the Court was asked to assume that for an uninterrupted period of 30 days following upon a collision the plaintiff was non compos mentis, and that this was a C condition which, at common...