Van Zyl NO v Road Accident Fund

• Jurisdiction: South Africa

Van Zyl NO v Road Accident Fund
2022 (3) SA 45 (CC)

2022 (3) SA p45

Citation	2022 (3) SA 45 (CC)
Case No	CCT 114/20; [2021] ZACC 44
Court	Constitutional Court
Judge	Mogoeng CJ, Jafta J, Khampepe J, Madlanga J, Majiedt J, Mhlantla J, Pillay AJ, Theron J, Tlaletsi AJ and Tshiqi J
Heard	November 19, 2021
Judgment	November 19, 2021
Counsel	G Budlender SC (with M Harrington) for the applicant.; TJM Patterson SC (with KL Watt) for the respondent.

Flynote : Sleutelwoorde

Constitutional law — Principles of natural justice — Lex non cogit ad impossibilia — Reiterated that law does not require impossibilities — Principle forming part of Constitution — Application where mentally incapacitated claimant not protected against statutory prescription of claim against Road Accident Fund.

Maxims — Contra non valentem agere non currit praescriptio — Ambit — Application where mentally incapacitated claimant not protected against statutory prescription of claim against Road Accident Fund.

Maxims — Lex non cogit ad impossibilia — Ambit — Application where mentally incapacitated claimant not protected against statutory prescription of claim against Road Accident Fund.

Maxims — Lex non cogit ad impossibilia — Incorporated into Constitution.

Motor vehicle accident — Compensation — Claim against Road Accident Fund — Prescription — Mentally incapacitated claimant not in detention or under curatorship — Lex non cogit ad impossibilia (impossibility principle) applied — Prescription beginning to run only from date of appointment of curator ad litem — Road Accident Fund Act 56 of 1996, s 23.

Headnote : Kopnota

On 1 May 2010 one KJ sustained serious brain injuries in a motor vehicle accident. The injuries reduced his mental capacity to the extent that he was unable to manage his own affairs. A compensation claim against the RAF, lodged on his behalf more than seven years later, was repudiated on the ground it had prescribed under s 23 of the Road Accident Fund Act 56 of 1996.

Despite the debilitating effects of his injuries, KJ did not fall into the classes of persons expressly protected against prescription under s 23(2) of the RAF Act, namely minors, persons detained under mental-health legislation and persons under curatorship. Also militating against the survival of the claim was that the preamble to s 23(1) explicitly excluded the operation of 'any law' that would allow for a prescription period different to that specified in s 23. The applicant, KJ's curatrix ad litem, argued in the Grahamstown High Court that KJ's claim had not prescribed because the Prescription Act 68 of 1969 was applicable, so that the running of prescription was delayed, under s 13 of that Act, due to KJ's mental incapacity. The High Court nonetheless upheld the RAF's special plea of prescription, ruling that s 23 applied to the claim, to the exclusion of the Prescription Act.

In an appeal to the Supreme Court of Appeal the applicant argued that the High Court judgment unjustly excluded mentally incapacitated persons not detained under mental-health legislation or under curatorship — 'affected persons' in this judgment — from the Prescription Act's protection. Apart from arguing that s 23 had to be read as incorporating s 13 of the Prescription Act, the applicant raised the point that the special plea should

2022 (3) SA p46

have been dismissed on the basis of impossibility (lex non cogit ad impossibilia: the law does not require impossibilities). She submitted that because KJ was mentally incapacitated by his injuries, it had been impossible for him to institute action for damages before the expiry of the three-year period prescribed by s 23, and Parliament could not have intended for him to do the impossible. The applicant also invoked the common-law incapacity principle, which states that prescription does not run against those who lacked capacity to institute action (contra non valentem agere non currit praescriptio).

The SCA dismissed the appeal, ruling that prescription in RAF claims was 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 to RAF claims. The SCA never addressed the applicant's impossibility argument.

The applicant turned to the Constitutional Court, which upheld the appeal. It delivered three judgments: one by Pillay AJ, one by Jafta J, and a dissenting one by Theron [*] Theron J would have dismissed the appeal, while Jafta J agreed with Pillay AJ that the appeal should succeed, but for different reasons.

Held per Pillay AJ (Mogoeng CJ and Khampepe J concurring):

The common law could be used to protect affected persons from prescription. (See [3], [38].) Section 39(2) of the Constitution enjoined the courts to prefer statutory interpretations that promoted the Bill of Rights over those that did not, so that if an interpretation denied the right of access to courts while another had the opposite effect, the court was obliged to adopt the latter. The Supreme Court of Appeal's refusal to take the route of s 39(2) unravelled its decision to dismiss the appeal. (See [40] – [41], [72].)

To exclude the impossibility principle, which was grounded in science and logic, from the concept of 'any law' as intended in s 23(1) would amount to a perversion of justice. The 'any law' prelude to s 23(1) did not occlude the impossibility principle because for any law — including the RAF Act — to be just, it had to be underpinned by justice, equity and reasonableness. Such an interpretation would spare the court from enquiring into the validity of s 23(1) and (2) and would be in line with the international Convention on the Rights of Persons with Disabilities (CRPD), to which South Africa was a signatory. (See [46] – [49], [53] – [58], [75], [77] – [86].)

The application of the impossibility principle would, together with the incapacity principle, rescue KJ's claim from prescription. This approach simultaneously recognised the validity of the RAF Act and the rights of the affected persons to human dignity and to access courts, without overburdening the RAF. (See [87] – [89].)

Therefore, the decision of the SCA would be reversed on appeal and the special plea of prescription dismissed. (See [90].)

Held per Jafta J (Madlanga J, Majiedt J, Mhlantla J, Tlaletsi AJ and Tshiqi J concurring):

While the order proposed by Pillay AJ was correct, it was difficult to appreciate what role the CRPD played in the interpretation of s 23, or the nature of the link between that interpretation and the impossibility principle. Pillay AJ

2022 (3) SA p47

was correct in stating that a statutory provision which affected rights protected by the Bill of Rights had to be construed in accordance with the international-law injunction in s 39(2) of the Constitution. This was, however, subject to the requirement that the language of the provision had to be reasonably capable of such a meaning. (See [92] – [93], [106].)

While KJ's claim had, on a literal interpretation of s 23, prescribed, the section was under-inclusive of those who truly needed its protection. Parliament could not have intended people like KJ to do the impossible. The exclusion amounted to an absurdity that could not have been contemplated by Parliament and that would, contrary to s 9(1) of the Constitution, deny equal protection and benefit of the law. It also served no legitimate government purpose to require individuals to do the impossible. While it was true that s 23 superseded other laws on prescription, it did not exclude lex non cogit ad impossibilia because the maxim did not regulate prescription but relieved a person from complying with the requirements of a law in circumstances where it was impossible to comply. Therefore s 23(1) did not exclude the operation of the impossibility principle. (See [102], [108], [111] – [117].)

Since the maxim was part of the rule of law, one of the foundational values of the Constitution, it formed part of the Constitution. By parity of reasoning the maxim equally applied to the present matter, and for as long as the disability arising from KJ's mental condition persisted, prescription would not begin to run. (See [125] – [126].)

Held per Theron J:

Pillay AJ's judgment failed to explain why the impossibility principle was not expressly excluded by the 'any law' exclusion. Any reliance on natural law was alien to our legal system and fell to be rejected. (See [144].)

Section 23 was not merely under-inclusive. Instead, it unequivocally excluded the operation of any law allowing for a prescription period different to that which it specified. There was no authority for the proposition that Parliament could not exclude the impossibility principle — in fact, it had to enjoy such power. (See [146].) In a statutory setting, it could do so by express provision (see [147]). Here, the applicability of the impossibility principle was excluded by the proviso to s 23(1) (see [148]).

Jafta J's invocation of absurdity, the intention of Parliament and inconsistency with s 9(1) of the Constitution all amounted to the same thing, namely that s 23(1) was unconstitutional. This was the stuff of a frontal attack, not interpretation under s 39(2) of the Constitution. In any event, Jafta J's judgment ignored the manifest purpose of s 23(1) and (2): to provide for the suspension of prescription only in the result of events capable of easy proof. (See [155].)

While the Constitution might require that the relevant common-law principles should be applicable in a situation such as the present, the proper place for such an argument was a frontal challenge to the constitutional validity of s 23(1), not through the back door of s 39(2) of...