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IN THE HIGH COURT OF SOUTH AFRICA

GAUTENG  DIVISION, PRETORIA

CASE NO: 70267/2015

NOT REPORTABLE

NOT OF INTEREST TO OTHER JUDGES

DATE:10 SEPTEMBER 2018

In the matter between:

ADV MARYKE VAN ROOYEN

obo OUPA JACOB MOTAU                                                                           Plaintiff

and

ROAD ACCIDENT FUND                                                                             Defendant

JUDGMENT

Tuchten J:

1        I am required to decide the disputes disclosed by the defendant's special plea of prescription raised in defence to the plaintiff's claim. The central issue is whether the plaintiff's claim for damages for bodily injuries against the Road Accident Fund(the Fund) has prescribed. Mr Motau, whom I shall call the plaintiff, was injured in a collision giving rise to liability of the fund Under the Road Accident Fund Act[1] (the RAF Act). In that very collision, the plaintiff was rendered insane, as that term is used ins 13(1)(a) of the Prescription Act,[2] by the injuries he suffered. The plaintiff cannot claim the protection of s 23(2) of the RAF Act. Section 23(1) of the RAF Act provides that a claimant's claim for compensation for his injuries prescribes three years after the cause of action of such a claimant arises. The argument made on behalf of the plaintiff is that his claim is saved from prescription by the provisions of s 13(1)(a) of the Prescription Act.

2       The plaintiff, was a passenger in one of the two vehicles which were involved in a collision on 11 January 2012. He suffered injuries which included a brain injury. Counsel for the defendant formally admitted during argument before me that the injuries sustained by the plaintiff in the collision rendered him insane for the purposes of s 13(1)(a) of the Prescription Act and that he remains insane to this day.

3       The plaintiff is represented in this action by his curatrix, Adv van Rooyen, who was appointed as such on 5 September 2016. No claim against the Fund as contemplated by s 17(4)(a) or s 24 was lodged on behalf of the plaintiff before the expiry of a period of three years after the date upon which his cause of action arose. So even though it is accepted on both sides of the argument that the plaintiff himself was rendered mentally incapable of doing that which the RAF Act prescribes by the very injuries for which he is claiming compensation, his claim is lost unless the provisions of the Prescription Act can be invoked in the plaintiff's favour. This is because of the provisions of ss 23(1) to (3) of the RAF Act which read as follows:

(1)    Notwithstanding anything to the contrary in any law contained, but subject to subsections (2) and (3), the right to claim compensation 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 upen which the cause of action arose.

(2)    Prescription of a claim for compensation referred to in subsection {1) shall not run against-

(a)    a minor;

{b) any person detained as a patient in terms of any mental health legislation; or

(b) a person under curatorship.

(3)    Notwithstanding subsection (1), no claim which has been lodged in terms of section 17 (4) (a) or 24 shall prescribe before the expiry of a period of five years from the date on which the cause of action arose.

4    In fact, after the curatrix was appointed, the claim was lodged and summons in the present action was served on the Fund. Two answers are made on behalf of the plaintiff to the prescription defence. Firstly, although the plaintiff was not a person under curatorship until after the three year period ins 23(1) of the Prescription Act had expired, it is submitted that the appointment of a curatrix retrospectively renders the plaintiff a person under curatorship as contemplated by s 23(1)(c) of the RAF Act.

5    An important purpose of the institution of prescription is to facilitate legal certainty, As was said in Road Accident Fund and Another v Mdeyide[3] (Mdeyide 2):

Without prescription periods, legal disputes 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. The quality of adjudication is central to the rule of law. For the law to be respected, 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.

6  If the plaintiff's first argument were correct, It would mean that if a person sound in mind when the cause of action arose, who remained sound in mind up until the expiry of three years thereafter, were many years after the event placed under curatorship, the protection which the Fund had obtained under s 23 would be stripped away and it would be forced to defend a claim in circumstances in which witnesses would be unavailable, recollection shazy and records lost or destroyed. I cannot accept that the purpose of the measure would

Be advanced by such an interpretation and its language does not drive one to that conclusion. The first answer to the prescription defence must fail.

7    The plaintiffs second answer to the prescription defence is that s 13(1)(a) of the Prescription Act saves the plaintiffs claim from prescription. Section 13((1)(a) reads:

(1)    lf-

(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 as contemplated in section 15 (1);

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 paragraph (a), (b), (c), (d), (e), (f), (g) or (h) has ceased to exist, the period of prescription shall not b completed before a year has elapsed after the day referred to in paragraph (i) .

8    Under the common law, prescription did not run at all in against a person under disability, such as an insane person. The policy of the common law was that prescription did not run against a person who had no capacity to institute action. See Road Accident Fund v Smith[4].

In the same case an issue similar to the present came up for consideratio.nThe SCA held by 11'.lajority that it was not conceivable that Parliament had intended that

... substantial numbers o finsane persons were to be stripped of all protection, for the sake of some administrative convenience. Such an intention requires clear expression.[5]

9   The court in Smith concluded that the protection of s 13(1)(a) was available to insane persons who had instituted claims against the Fund. The majority could not accept that Parliament was to be taken to have legislated with what the majority called the unjust intent contended for by the Fund.[6]

10   Smith is authority binding on me and the reference to that case would have without more disposed of the issue infavour of the plaintiff were it not for the two Mdeyide cases.

11    Mr Mdeyide was a blind, illiterate and innumerate man who had a claim against the F-und . His claim was not lodged and proceeded with in accordance with the provisions of s 23(4) of the RAF Act. He sought to overcome this obstacle by recourse to s 12(3) of the Prescription Act:

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 which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care.

12   The contention for Mr Mdeyide is that he had been unaware of his rights against the Fund and his delay in seeking legal assistance was because of his personal and socio-economic circumstances, not due to an unreasonable delay in seeking legal and other assistance.

13   Mr Mdeyide's case came twice before the Constitutional Court. In Mdeyide 1,[7] the court concluded that insufficient evidence had been taken in the High Court regarding Mr Mdeyide's capacity to litigate. It sent the matter back for further evidence, observing that[8] Mr Mdeyide might be able to invoke the protection of s 13(1)(a) of the Prescription Act.

14  In Mdeyide 2,[9] no reliance was placed on s 13(1)(a) of the Prescription Act. Mr Mdeyide instead continued to be make his case on s 12(3) of the Prescription Act. The Constitutional Court held that a claimant under the RAF Act such as Mr Mdeyide was not entitled to rely on s 12(3) of the Prescription Act because s 12(3) was in conflict with s 23(3).[10] But it is clear from the court's analysis of the issues before it[11] that the question whether s 13(1)(a) of the Prescription Act was available to a plaintiff whose claim was not protected bys 23(3) of the RAF Act was not one of the issues before the Constitutional Court. Although Mdeyide 2 refers to Smith with approval but in another context,[12] Smith is not overruled or even criticized in Mdeyide 2. And the judgment in Mdeyide 2 did not refer to the issue of the availability of s 13(1)(a), left open in Mdeyide 1.

15      A conclusion that Smith was impliedly overruled by Mdeyide 2 would carry with itthe consequence that our apex court has decided that not only insane persons, but also adult persons prevented by superior force from seeing an attorney or themselves going to court to take out process with which to interrupt prescription in a claim under the RAF Act, would be deprived of any prescription protection. I put three categories of such adults to counsel for the Fund: the insane person, the person in solitary confinement without any power to give instructions to an attorney and a young woman, living in a highly patriarchal society which forbade her to take any action herself to enforce her rights and ignored her wishes to do so.

16   Counsel for the Fund acknowledged that each of the persons affected in those examples must, by the logic of counsel's argument, be deprived of Prescription Act protection.

17  Furthermore, as was observed in Mdeyide 1, even under the pre democratic dispensation, the failure of a person to do the impossible could constitute an answer to a defence that the plaintiff's action was timebarred.[13] Parliament is presumed to know the law. On the Fund's argument, the answer that it was impossible for the plaintiff to comply with s 23(3) of the RAF Act would not be available in relation to claims under the RAF Act. One would expect clear language to express such an intention and to change the law.

18      On the Fund's argument, the Constitutional Court has held, without ever actually saying so, that significant classes of highly vulnerable people have been deprived of the protection afforded by Smith. And this inrelation to a statute intended to afford relief to, amongst others, those same vulnerable people. I cannot accept that our apex court would, to adapt the language in Smith, without saying so expressly impute such an unjust intention to Parliament; the more so because those, in my view, obvious examples were not even referred to, let alone examined by the Constitutional Court in Mdeyide 2.

19      I therefore conclude that Mdeyide 2 did not overrule Smith ,;and that Smith, by which I am bound, remains good law 

20      It follows that the Fund's defence of prescription cannot succeed. I make the following order:

The defendant's special plea of prescription is dismissed with costs.

NB TUCHTEN

Judge of the High Court

10 September 2018

For the plaintiff:

Adv JO Williams SC

Instructed by

Marais Basson Inc

Pretoria

For the defendant:

Adv CH Badenhorst

Instructed by:

Mkhonto & Ngwenya Inc

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