Case  CCT114/20
[2021] ZACC 44

Hearing Date: 2 March 2021

Judgement Date: 19 November 2021

Post Judgment Media Summary  

The following explanatory note is provided to assist the media in reporting this case and is not binding on the Constitutional Court or any member of the Court.

On Friday, 19 November 2021 at 10h00, the Constitutional Court handed down judgment in an application for leave to appeal against the whole judgment and order of the Supreme Court of Appeal. The Supreme Court of Appeal upheld a decision of the High Court of South Africa, Eastern Cape Local Division, Makhanda, which had declared that Mr Koos Jacobs’ claim against the Road Accident Fund (RAF) had prescribed in terms of section 23 of the Road Accident Fund Act 56 of 1996 (RAF Act).

On 1 May 2010, Mr Jacobs was injured in a motor vehicle collision. He sustained severe head injuries which rendered him of unsound mind. His mother, acting in terms of section 17(1)(a) of the RAF Act, lodged a claim for compensation for him with the RAF on 18 January 2017, seven years after the incident. The RAF repudiated his claim, pleading prescription. Under section 23(1) of the RAF Act, claims must be lodged within three years after the incident.

The High Court found in favour of the RAF. The Supreme Court of Appeal dismissed the appeal. It held that Road Accident Fund v Mdeyide 2011 (2) SA 26 (CC) (Mdeyide II) created a rule that the Prescription Act 68 of 1969 and the RAF Act are inconsistent and that questions of prescription in respect of third party claims against the RAF are governed exclusively by the RAF Act.

In the Constitutional Court, the RAF contended that under section 23(1) of the RAF Act, claimants of unsound mind are protected against prescription only if they are detained in terms of mental health legislation or placed under curatorship. Mr Jacobs’ curatrix ad litem, Ms van Zyl, contended that Mr Jacobs had been of unsound mind since the collision. Although she was appointed about seven years after the collision, Mr Jacobs qualified for the appointment of a curator earlier but, due to his disability, was unable to arrange for such an appointment. Alternatively, the curatrix submitted that, as an insane person, Mr Jacobs’ claim is protected against prescription under section 13(1)(a) of the Prescription Act. Section 13(1)(a) provides that claims prescribe one year after an impediment – in this case Mr Jacobs’ inability to act for himself – ceases to exist. It does not require such persons to be detained or subjected to curatorship.

The curatrix argued that section 13(1)(a) of the Prescription Act is not inconsistent with section 23(2) of the RAF Act and that Mdeyide II did not lay down a general rule to the contrary. She argued that the Supreme Court of Appeal’s interpretation of section 23 demands the impossible of mentally incapacitated accident victims.

The RAF contended that the Supreme Court of Appeal’s interpretation of Mdeyide II was correct and that the Prescription Act cannot be applied to claims under the RAF Act. Furthermore, limiting section 23(2) only to persons with mental disabilities who are detained or are under curatorship, serves the legitimate purpose of ensuring the RAF has access to official records to establish the seriousness and duration of the illness. Consequently, any limitation on the right of access to courts is reasonable and justifiable. Therefore, section 23(2) of the RAF Act prevails over section 13(1)(a) of the Prescription Act.

The first judgment, penned by Pillay AJ (with Mogoeng CJ and Khampepe J concurring), held that the primary issue for determination was whether Mr Jacobs’ claim against the RAF, and those of similarly placed persons (the affected persons), could be saved from prescription. To contextualise this issue, the first judgment considered the prelude to section 23(1) of the RAF Act, which states that its provisions apply “[n]othwithstanding anything to the contrary in any law contained”. It proceeded to confirm, in accordance with the Constitutional Court’s judgment in Mdeyide II, that this prelude ousted the application of the Prescription Act to claims under the RAF Act. The first judgment found that this was not the end of the enquiry however; it recognised that Parliament had made a policy choice to exclude certain categories of persons from the ambit of section 23(1), but also recognised that an obligation rests on Parliament to give effect to the affected persons’ rights to dignity and access to courts. It considered that an interpretation of section 23(1) which excludes the affected persons from protection against prescription altogether may render the section constitutionally invalid. But that was not what the Court was invited to do. Instead, it proceeded to consider whether section 23(1) could be subject to an interpretation which promotes the rights of the affected persons, and noted that, if such an interpretation was possible, a court would be mandated to prefer it.

To arrive at a constitutionally compliant interpretation, the first judgment relied on the impossibility principle, lex non cogit ad impossibilia (the law does not require the impossible) and the incapacity principle, contra non valentem agere non currit praescriptio (prescription does not run against one who has no capacity to institute action). The impossibility principle has its roots in natural justice and distinguishes that which is rational, logical and reasonable from that which is not. The first judgment held that Parliament would have had to expressly exclude the impossibility principle if it did not intend for it to apply, and that interpreting the prelude to section 23(1) to implicitly exclude the impossibility principle would be a perversion of justice. This finding was premised on the natural durability of the impossibility principle as right reason and its recognition of human capabilities.

The first judgment held that the Supreme Court of Appeal had erred in finding that Mr Jacobs could have complied with section 23(2)(b)-(c) to avoid the prescription of his claim. It would have been impossible for him, in light of his disability, to manage his own detention in terms of mental health legislation, or to arrange for the appointment of his own curatrix. Consequently, the first judgment found that Mr Jacobs lacked the legal capacity to institute his claim personally and that prescription did not run until the appointment of his curatrix.

The first judgment noted in conclusion that this interpretation achieves consistency with the Convention on the Rights of Persons with Disabilities by affording the affected persons access to courts, enabling them to exercise their legal capacity and protect their dignity. It proceeded to uphold the appeal and dismiss the RAF’s special plea of prescription with costs.

The second judgment, penned by Jafta J (with Madlanga J, Majiedt J, Mhlantla J, Tlaletsi AJ Tshiqi J concurring), agreed with the order proposed in the first judgment but for different reasons. While the second judgment agreed that a statutory provision which affects any of the rights in the Bill of Rights must be construed in accordance with the injunction in section 39(2) of the Constitution, it identified the limitation that the text must be reasonably capable of such meaning. The second judgment further agreed that the Prescription Act was not incorporated into the RAF Act through section 23 of the RAF Act, which was the section relied upon by the RAF for the defence of prescription. The second judgment found that although on a literal interpretation of section 23, Mr Jacobs’ claim had become prescribed, it was impossible for him to institute action before the expiry of three years, given that he became a person of unsound mind as a result of the accident. In its determination of whether the maxim lex non cogit ad impossibilia was applicable to this matter, the second judgment found that in passing section 23, Parliament could not have intended people like Mr Jacobs to do what was impossible to perform. Moreover, reading section 23 as excluding the operation of this maxim would not only lead to an absurdity, but would also give it a meaning which was inconsistent with section 9(1) of the Constitution, which enshrined the right to equal protection and benefit of the law. The second judgment took issue with the notion in the third judgment which suggested that Parliament may exclude the operation of the maxim and implied that this was the case in respect of section 23(1). Accordingly, the second judgment held that the maxim lex non cogit ad impossibilia applied to this matter and for as long as the disability arising from Mr Jacobs’ mental condition persisted, prescription did not begin to run. Furthermore it held that the courts below erred in upholding the special plea that was grounded on Mr Jacobs’ failure to institute legal proceedings where it was clearly impossible for him to do so.

The third judgment, penned by Theron J, would have dismissed the appeal. It held that there is no reasonable reading of the proviso to section 23 of the RAF Act, that it applies “[n]otwithstanding anything to the contrary in any law contained, but subject to subsections (2) and (3)” (the section 23 proviso), that does not have the effect of excluding the applicability of both the Prescription Act and common law impossibility principles to claims brought under the RAF Act. Accordingly, since the applicant relied on section 39(2) of the Constitution, rather than challenging the constitutionality of section 23 of the RAF Act, the application ought to have failed.

The third judgment held that section 13(1) of the Prescription Act provides for an extension of prescription, beyond the period specified in section 23(1) of the RAF Act, in circumstances other than those provided for in section 23(2) and (3) of the Act. Accordingly, section 13(1) of the Prescription Act constitutes a law to the contrary of section 23(1), and its applicability to RAF claims is therefore excluded by the section 23 proviso. The third judgment held further that this conclusion is fortified by the manifest purpose of section 23 of the RAF Act, which is to allow for the suspension of prescription only in circumstances capable of easy proof. Section 13(1) of the Prescription Act, by contrast, allows for extension of prescription in circumstances which are notoriously difficult to prove. Accordingly, if section 13(1) applied to RAF claims, it would frustrate the manifest purpose of section 23(1).

The third judgment held that similar considerations mean that the common law impossibility principles are inapplicable to claims brought under the RAF Act. Those principles, if applied to claims brought under the Act, would allow for prescription to be suspended, and thus run for a longer period than that specified in section 23, in circumstances other than those provided for in sections 23(2) and (3). The common law impossibility principle therefore constitutes “a law” which operates to the contrary of section 23(1), and is therefore rendered inoperative to RAF claims by the section 23 proviso. The third judgment reasoned that, were it otherwise, the manifest purpose of section 23 - to provide for suspension of prescription in narrowly crafted circumstances - would be frustrated.

The third judgment differed from the second judgment in that it held that Parliament was capable of excluding the impossibility principle by express provision. It also differed from the second judgment in concluding that the section 23 proviso cannot reasonably be construed so as to allow for the applicability of the impossibility principle to RAF claims. The third judgment held further that the manifest purpose of sections 23(1) and (2) is to provide for the suspension of prescription only in the result of events capable of easy proof. Contrary to the second judgment, the third judgment held that a provision with this purpose might not survive frontal attack, but it was not one that Parliament could never have intended to enact.

Finally, the third judgment reasoned that it is not pedantry to insist that a challenge to a statutory provision is brought by frontal attack rather than through the back-door of section 39(2). It explained that the Court’s powers in terms of section 39(2) are carefully circumscribed, and cannot be used, in effect, to strike down provisions as constitutionally invalid. In addition, to use section 39(2) to challenge the constitutionality of a provision impermissibly deprives Parliament of the opportunity to show that the facial shortcoming of the provision can, in fact, be justified under section 36 of the Constitution.

The Full judgment  here