Phillipa Susan Van Zyl No vs. The Road Accident Fund

South Africa

06.05.2020

Motor Vehicles

Prescription Act does not apply to claims for compensation under the RAF Act

Present appeal concerns the question whether the running of prescription in respect of Mr Koos Jacobs’ claim for damages under the Road Accident Fund Act 56 of 1996 (the RAF Act) is governed exclusively by the provisions of Section 23 of the RAF Act, or whether Section 13(1) of the Prescription Act 68 of 1969 also applies to the claim.

On 1 May 2010, Mr, Jacobs sustained serious head injuries in a motor vehicle accident. On 18 January 2017, he lodged a claim with the respondent, the Road Accident Fund (RAF), which repudiated his claim on the basis that, his claim had prescribed in terms of Section 23 of the Road Accident Fund Act 56 of 1996 (RAF Act); and that Mr Jacobs did not fall under any of the categories of persons referred to in Section 23(2) of the RAF Act, against whom prescription does not run, as he was neither a person detained as a patient in terms of any mental health legislation nor a person under curatorship.

On 28 November 2017, the Appellant was appointed as the curatrix ad litem to Mr. Jacobs by order of court. On 8 March 2018, the Appellant instituted action against the RAF in which she claimed damages on behalf of Mr. Jacobs. The RAF raised a special plea and contended the claim had become prescribed because the claim was not instituted within the period of three years from the date of the accident and further that the summons was not served within five years from the date of the accident. In response thereto, the Appellant denied that Mr Jacobs’s claim had become prescribed.

The Eastern Cape Division of the High Court, held that the provisions of Section 23 of the RAF Act apply to the claim to the exclusion of Section 13(1) of the Prescription Act, and held that Mr Jacobs’ claim had indeed become prescribed. It accordingly dismissed Mr Jacobs’ claim. The appeal, with leave of the court below, is against this order upholding the special plea.

Section 23 of RAF Act does not affect mentally incapacitated persons’ right of access to a court, if they are detained as patients in terms of the mental health legislation or are under curatorship. Prescription of the claims of such persons is suspended for the duration of their detention as patients in terms of any mental health legislation, if they were detained, or, if they were place under curatorship, for the duration of such curatorship. In the present case, the incidence of prescription should have been managed by the timeous detention of Mr. Jacobs in terms of the mental health legislation and/or by the appointment of a curator ad litem who could have instituted his claims timeously. This would have suspended the running of prescription in terms of Section 23(2)(c) of the RAF Act.

The construction that present Court have placed on Section 23 of the RAF Act does not have the effect of preventing the dispute between the appellant and the RAF from being resolved by a court of law nor does it undermine the purpose of the RAF Act. Regrettable as this result may be, the Constitutional Court has already considered the interpretation of the RAF Act and held that claims under the Act are governed exclusively by the provisions of the said Act to the exclusion of any other law.

The Prescription Act does not apply to claims for compensation under the RAF Act. It is excluded because its provisions are inconsistent with those of the RAF Act relating to prescription. Section 23 of the RAF Act was intended to be fully comprehensive on the subject of claims for compensation under the RAF Act and was intended to exhaust its subject matter. The high Court was therefore correct in upholding the special plea of prescription. Appeal dismissed.

Tags : Compensation Enactment Applicability

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