Case CCT 55/23
[2024] ZACC 16
Hearing Date: 29 February 2024
Judgement Date: 15 August 2024
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 15 August 2024 the Constitutional Court handed down judgment in an application for leave to appeal against the judgment and order of the Supreme Court of Appeal dated 18 February 2022. In the main, the application involves the interpretation of section 13(1) of the Prescription Act 68 of 1969.
The applicant is Shoprite Checkers (Pty) Limited (Shoprite Checkers). The respondent is Mr Cecil Tshepo Mokopane Mafate.
On 15 October 2014 while working as a packer at the Checkers Hyper in the Meadowdale Mall in Edenvale, Ms Nolunga Mkhwanazi was involved in a tragic accident. As a result of the accident, she is now mentally incapacitated. The parties agree that this incapacity is permanent. Due to Ms Mkhwanazi’s incapacity, Mr Mafate, the respondent, was appointed as her curator ad litem on 1 February 2017.
On 22 February 2017 Mr Mafate issued summons claiming substantial damages against Shoprite Holdings Limited for personal injury to Ms Mkhwanazi. On 28 July 2017 Shoprite Holdings Limited filed a special plea of misjoinder and non-joinder in that the Checkers Hyper in Edenvale did not belong to it, but to its wholly owned subsidiary, Shoprite Checkers. Therefore, Shoprite Holdings Limted ought not to have been sued and that, instead, Shoprite Checkers ought to have been the defendant. On 28 June 2018 the curator ad litem withdrew the action against Shoprite Holdings Limited. On 19 October 2018 the curator ad litem instituted the present action against Shoprite Checkers. By way of a special plea, Shoprite Checkers raised the defence of prescription. It contended that a year had elapsed since the appointment of Mr Mafate as curator ad litem. In this regard, Shoprite Checkers relied on paragraph (i) read with paragraph (a) of section 13(1) of the Prescription Act. The effect of section 13(1)(a) to (h) read with (i) is that, for as long as a person falls under the categories set out in paragraphs (a) to (h) (all of which the section refers to as impediments and which include, in paragraph (a), affliction with mental incapacity and being a person under curatorship), their claim will not prescribe because the period of prescription will not be completed. The period of prescription will be completed only upon the expiry of a period stipulated in section 13(1). The stipulated period is reckoned from the date of cessation of the relevant impediment.
In the special plea, Shoprite Checkers argued that the appointment of Mr Mafate as curator ad litem constituted a cessation of the impediment of mental incapacity. The thinking behind this proposition was that interposing a curator ad litem made it possible for the delictual claim to be instituted. According to Shoprite Checkers, the relevant impediment had thus ceased. The impediment ceased to exist because, although Ms Mkhwanazi could not personally prosecute the claim, the curator ad litem could do so on her behalf. The substance of the special plea was that from 15 October 2014, the date on which tragedy befell Ms Mkhwanazi, the three-year prescription period had commenced and by 15 October 2017 it had elapsed. Therefore, in terms of a conjoined reading of paragraphs (a) and (i) of section 13(1), as at 19 October 2018, when Mr Mafate served summons on Shoprite Checkers, the additional period of a year stipulated in section 13(1) had also elapsed. The result was that the claim had prescribed.
In a replication, Mr Mafate contended that the running of prescription was interrupted by the service of process on Shoprite Checkers on 19 October 2018, and that less than three years had elapsed since the debt became due. Mr Mafate argued that he acquired knowledge of the identity of the debtor only after Shoprite Holdings Limited had raised the defences of misjoinder and non-joinder, and that acquiring this knowledge at the time that he did was not the result of a failure on his part to exercise reasonable care.
At the instance of the parties, the High Court separated issues and heard the question of prescription first. The High Court held that, notwithstanding the provisions of section 13(1), Mr Mafate could also rely on section 12 because the two sections are not inconsistent. It also held that permitting reliance on section 12 is more consonant with the protection of the right of access to court guaranteed in section 34 of the Constitution. In terms of section 12, the creditor has the full period of prescription (three years in this instance), instead of only the additional one year after cessation of the relevant impediment provided for in section 13(1). The High Court then concluded that, in terms of section 12(3), the three-year prescription period had not elapsed from the date on which Mr Mafate got to know the identity of the debtor, i.e. Shoprite Checkers.
On appeal, the Supreme Court of Appeal held that, since a curator ad litem had been appointed for Ms Mkhwanazi, such appointment rendered her a person under curatorship as envisaged in section 13(1)(a). At the time Shoprite Checkers says the claim had prescribed, Ms Mkhwanazi was under curatorship as the curatorship was ongoing. Therefore, the period of prescription could not have been completed. The Supreme Court of Appeal also held that the condition of mental incapacity would cease to exist only when Ms Mkhwanazi recovered from it, something that would never materialise as – on the acceptance of both parties – her condition is permanent. Thus, the import of the reasoning of the Supreme Court of Appeal was that the period of prescription would never be completed.
Shoprite Checkers sought leave to appeal from the Constitutional Court. In a unanimous judgment penned by Madlanga J (Bilchitz AJ, Chaskalson AJ, Dodson AJ, Majiedt J, Mathopo J, Mhlantla J, Theron J and Tshiqi J concurring), the Court reasoned that on Shoprite Checkers’ interpretation, Ms Mkhwanazi had only one year from the date of appointment of the curator ad litem for the delictual claim to be instituted on her behalf. This interpretation affords Ms Mkhwanazi and similarly placed persons less protection. Even with the appointment of a curator ad litem, such persons remain mentally incapacitated. They continue to be subject to the vagaries of the competence, or lack thereof, or tardiness of the curator ad litem. And – because of their mental incapacity – this is a situation about which they cannot do, or be expected to do, anything.
On Shoprite Checkers’ interpretation, the fortunes of a mentally incapacitated person are contingent on the competence and diligence of the appointed curator. The one-year limitation in section 13(1) could not have been meant to divest mentally incapacitated persons of the protection afforded by that section in circumstances where there was no guarantee of an optimal safeguard of their interests. The protection afforded by the section is less about whether there is a person (the curator ad litem in this instance) who can bring action on behalf of a person with a mental incapacity. It is more about the optimal protection of the interests of persons belonging to the vulnerable group of mentally incapacitated persons who are certainly deserving of such protection.
The Court granted leave to appeal, but dismissed the appeal.
The Full judgment here
