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[2012] ZAGPPHC 363
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Apdol v Road Accident Fund (5011/2011) [2012] ZAGPPHC 363 (3 August 2012)
IN
THE NORTH GAUTENG HIGH COURT. PRETORIA
/ES
(REPUBLIC
OF SOUTH AFRICA)
CASE NO:
5011/2011
DATE: 3 August
2012
REPORTABLE
IN THE MATTER
BETWEEN
U D
APDOL
....................................................................................................................................
PLAINTIFF
AND
ROAD ACCIDENT
FUND
........................................................................................................
DEFENDANT
JUDGMENT
PRINSLOO. J
[1] This case
involves the question whether the reduction of the age of majority,
in terms of section 17 of the Children's Act,
Act 38 of 2005, ("the
Children's Act") from 21 years to 18 years, with effect from 1
July 2007, can have an impact, from
the point of view of
prescription, on the damages claim of a minor in terms of the Road
Accident Fund Act, Act 56 of 1996 ("the
RAF Act").
[2] What came before
me for decision, was whether or not to uphold the defendant's special
plea of prescription. Because of the
legal issue involved, and
because the facts are common cause, no evidence was led.
[3] Before me, Mr
Bergenthuin SC appeared for the plaintiff and Mr Maritz for the
defendant.
The background
and brief remarks about the pleadings
[4] The plaintiff,
now an adult female, instituted a damages action against the
defendant, in terms of the provisions of the RAF
Act, to be
compensated for loss of support as a result of the death of her late
breadwinner who was knocked over and killed, when
a pedestrian, by
the insured vehicle in a collision which occurred in Mossel Bay.
The plaintiff
alleges in her particulars of claim that the deceased breadwinner
supported her during her lifetime and had a legal
duty to do so in
terms of a maintenance order. Because of the death of the
breadwinner, the plaintiff lost the support altogether.
The plaintiff
alleges that the sole cause of the collision between the insured
vehicle and the deceased breadwinner, was the negligence
of the
driver of the insured vehicle. This allegation is in dispute, but it
is a dispute which does not require any further attention
for
purposes of deciding the merits of the special plea of prescription.
[5] The special plea
of prescription reads as follows:
“
1
.
The
plaintiffs claim arose from bodily injuries allegedly sustained by
the plaintiff in a motor vehicle collision, which allegedly
occurred
on 19 June 2004
(my
note
:
this allegation is defective, in the sense that the bodily injuries
were sustained by the breadwinner and not by the plaintiff
and the
claim is one for loss of support. Nothing turns on this for present
purposes.)
2
.
The plaintiffs claim
was lodged with the defendant on 25 August 2010.
3.
The plaintiff turned
18 on 16 February 2006 and therefore became a major on the 1 July
2007 in terms of section 17 of the Children's
Act, Act no 38 of 2005.
Prescription therefore started to run against the plaintiff on the 1
July 2007.
4.
The plaintiff failed
to lodge her claim with the defendant on or before 30 June 2010. The
defendant thus pleads that a period of
more than three years has
elapsed from the date upon which the claim arose until the plaintiffs
claim was lodged.
5.
In the premises, the
defendant pleads that it does not incur any liability in respect of
the plaintiffs claim in that same has become
prescribed in terms of
the provisions of section 23(1) of the Road Accident Fund Act, Act 56
of 1996, as amended.
Wherefore the
defendant prays that the plaintiffs claim be dismissed with costs."
[6] The plaintiff
filed a replication to this special plea, the relevant portions of
which read as follows:
“
2.
Ad
paragraph
3 thereof:
The
plaintiff will allege that prescription only started running on 16
February 2009. In this regard the plaintiff will allege that
she was
already 19 years old when the New Act came into being and that the
New Act was not implemented retrospectively
(my
note
:
the 'New Act' must be the Children's Act).
Ad
paragraph
4 thereof:
The contents of this
paragraph is denied. The plaintiff will allege that she would have
had opportunity until 15 February 2012 to
lodge her claim. The
plaintiff will aver that her claim had not prescribed."
Relevant dates in
chronological order
[7] I list what I
consider to be the relevant dates for purposes of deciding this
dispute.
[8] The plaintiff
was bom on 16 February 1988.
[9] The collision
(arising of the cause of action) occurred on 19 June 2004.
[ 10] The plaintiff
turned 18 on 16 February 2006.
[11] The date of
commencement of section 17 of the Children's Act is 1 July 2007.
This provision
reduces the age of majority from 21 to 18 and reads as follows:
"A child,
whether male or female, becomes a major upon reaching the age of 18
years."
[12] The plaintiff
turned 21 on 16 February 2009.
[13] The claim was
lodged with the defendant on 25 August 2010 (when the plaintiff was
approximately 22 years and 6 months old).
[14] The action was
instituted on 27 January 2011 and the summons was served on the
defendant on 7 February 2011.
The relevant
statutory provisions
[15] It is
convenient to quote some statutory provisions which are relevant for
purposes of deciding this issue.
[16] In terms of
section 1 of the Age of Majority Act, Act 57 of 1972 ("the Age
of Majority Act") a person reached the
age of majority at 21
years.
In terms of section
313 of the Children's Act, read with schedule 4 thereof, the whole of
the Age of Majority Act was repealed with
effect from 1 July 2007.
[17] The relevant
portions of section 23 of the RAF Act read as follows:
"23.
Prescription of
claim. -
(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 upon 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) ...
(c) ..."
The date of
commencement of the RAF Act was 1 May 1997.
In his argument, Mr
Bergenthuin also pointed out that these provisions regarding
prescription, to be found in section 23 of the
RAF Act, differ from,
and are not subject to, the prescription provisions relating to
minors (and others) to be found in, for example,
sections 3 and 13 of
the Prescription Act, Act 68 of 1969 ("the Prescription Act").
Mr
Bergenthuin referred me to the following passage from
RAF
v
Mdeyide
2011
2 SA 26
(CC) at 41H:
"There is
therefore a clear reason for the difference between the Prescription
Act and the RAF Act. The Prescription Act regulates
the prescription
of claims in general, and the RAF Act is tailored for the specific
area it deals with, namely claims for compensation
against the fund
for those injured in road accidents. The legislature enacted the RAF
Act - and included provisions dealing with
prescription in it - for
the very reason that the Prescription Act was not regarded as
appropriate for this area."
Before me, it was
common cause that the three year prescription period provided for in
section 23 of the RAF Act will only start
running once the minor
claimant attains the age of majority.
[18] In my view, one
of the most important statutory provisions, for present purposes, is
to be found in section 12 of the Interpretation
Act, Act 33 of 1957,
which reads as follows:
"12. Effect
of repeal of a law. -
(1) Where a law
repeals and re-enacts with or without modifications, any provision of
a former law, references in any other law
to the provision so
repealed shall, unless the contrary intention appears, be construed
as references to the provision so re-enacted.
(2) Where a law
repeals any other law, then unless the contrary intention appears,
the repeal shall not-
(a) revive anything
not in force or existing at the time at which the repeal takes
effect; or
(b) affect the
previous operation of any law so repealed or anything duly done or
suffered under the law so repealed; or
(c) affect any
right, privilege, obligation or liability acquired, accrued or
incurred under any law so repealed; or
(d) affect any
penalty, forfeiture or punishment incurred in respect of any offence
committed against any law so repealed; or
(e) affect any
investigation, legal proceeding or remedy in respect of any such
right, privilege, obligation, liability, forfeiture
or punishment as
is in this subsection mentioned,
and any such
investigation, legal proceeding or remedy may be instituted,
continued or enforced, and any such penalty, forfeiture
or punishment
may be imposed, as if the repealing law had not been passed."
[19] In concluding
these references to relevant statutory provisions, and where this
case involves the rights of children or minors,
certain stipulations
to be found in the Constitution of the Republic of South Africa, Act
108 of 1996, ("the Constitution"),
should also not be
overlooked.
The date of
commencement of the Constitution was 4 February 1997.
The
rights of children are prescribed in section 28, to be found in the
chapter 2
Bill of
Rights.
It
is useful to quote the contents of subsections (2) and (3) of section
28:
"(2) A child's
best interests are of paramount importance in every matter concerning
the child.
(3) In this section
'child' means a person under the age of 18 years."
[20] Section 39(2)
reads as follows:
"(2) When
interpreting any legislation, and when developing the common law or
customary law, every court, tribunal or forum
must promote the
spirit, purport and objects of the Bill of Rights."
Conclusionary
remarks
[21] When the
collision occurred on 19 June 2004, and the cause of action therefore
arose as intended by the provisions of section
23(1) of the RAF Act,
the plaintiff was only 16 years and 4 months old. Her position was
then the following:
(1) She would still
remain a minor until she turned 21, as prescribed by the Age of
Majority Act, which was then still in force.
(2) Prescription of
her intended claim against the Road Accident Fund would not start
running against her until she would turn 21
on 16 February 2009.
Thereafter, she would have three years within which to file her
claim, which she only had to do by midnight
on 15 February 2012.
(3)
In the event, she lodged her claim well before the anticipated
prescription date, namely already on 25 August 2010 and instituted
action in January 2011.
(4) But for the
repeal of the Age of Majority Act in terms of section 17 of the
Children's Act on 1 July 2007, the question of prescription
of her
claim would not have arisen and she would have had the benefit of
exercising her constitutionally entrenched right to have
her action
decided in a fair public hearing before a court - see section 34 of
the Constitution.
[22] It was argued
by Mr Maritz on behalf of the defendant that the position is as
follows:
(1) When
section 17 of the Children's Act came into effect on 1 July 2007,
repealing the Age of Majority Act at the same time
in terms of
section 313 read with schedule 4 of the Children's Act, the plaintiff
became a major on that date.
(2) The three year
prescription period, provided for by section 23 of the Road Accident
Fund Act, then started running against the
plaintiff on the same
date, 1 July 2007, because she was no longer a minor enjoying the
protection of section 23(2)(a) of the Road
Accident Fund Act.
(3) Consequently,
the plaintiff had to lodge her claim by 30 June 2010 to avoid
prescription thereof In the event, she missed this
deadline by less
than two months, when her claim was lodged on 25 August 2010.
(4) Consequently, so
the defendant argues, the plaintiffs claim has become prescribed.
There will be no access to a trial court
as intended by section 34 of
the Constitution.
(5) Where the
subject of retrospectivity of legislation is to be discussed
hereunder, it may be observed, as an aside, that the
argument that
the plaintiff turned 18 on 1 July 2007 (when, in fact, she was
already 19 years and 4 months old on that date) may
amount to a
concession that the Children's Act, despite providing by section 17
that a child becomes a major upon reaching the
age of 18 years, does
not have retrospective effect. On the defendant's argument, the
plaintiff only became a major on 1 July 2007,
despite the fact that
she already turned 18 (as provided for in section 17 of the
Children's Act) on 16 February 2006.
[23] If the argument
of the defendant were to be endorsed by this court, it would mean
that the plaintiff, who had lodged her claim
well within the
prescription period which was provided for at the time when her cause
of action arose, would lose a substantial
claim, probably meaning a
great deal to her from a maintenance point of view, directly as a
result of the repeal, by section 313
of the Children's Act read with
schedule 4 thereof, of the Age of Majority Act, together with the
simultaneous reduction, by section
17 of the Children's Act, of the
age of majority from 21 to 18 years.
[24]
In my view, such a finding by this court would fly in the face of the
clear provisions of section 12(2) of the Interpretation
Act,
supra.
In particular, as
quoted, this subsection provides that where a law repeals any other
law, then unless the contrary intention appears,
the repeal shall not
affect any right, privilege, obligation or liability acquired,
accrued or incurred under any law so repealed
- section 12(2)(c).
For the reasons
mentioned, the repeal, in the present instance, would clearly affect
the plaintiffs rights under the previous law,
in this case the Age of
Majority Act, which enabled the plaintiff to conduct her claim
without any danger of it becoming prescribed
under the circumstances
now contended for by the defendant. As pointed out, section 12(2)(e)
also provides that the repeal shall
not affect any legal proceeding
or remedy acquired by the plaintiff under the law repealed and such
remedy may be enforced as if
the repealing law had not been passed.
[25] Returning to
the proviso in section 12(2) of the Interpretation Act, namely that
the provisions there enacted shall apply "unless
the contrary
intention appears" I point out that I am not aware of any
provision in the Children's Act indicating that it
will operate
retrospectively. No such provision was brought to my attention during
the proceedings before me. Indeed, I pointed
out that the defendant
appears to concede that there is no question of retrospectivity when
arguing that the plaintiff became a
major only on 1 July 2007 where,
in fact, she already turned 18 about sixteen months earlier.
[26]
Moreover, it seems to me that a finding such as the
one contended for by the defendant, would not be in harmony
with the
requirements of section 28 of the Constitution read with section
39(2) thereof. The plaintiff was still a "child"
as defined
in section 28(3), because she was well under the age of 18 when her
cause of action arose. Consequently, to interpret
the legislation
before me for consideration on the basis contended for by the
defendant, would not, in my opinion, promote the
spirit, purport and
objects of the
Bill
of Rights
,
as intended by the requirements of section 39(2) of the Constitution.
[27] I turn briefly
to another argument offered on behalf of the defendant which, if I
understood it correctly, amounted to the
following: the effect which
the promulgation of section 17 of the Children's Act had on the
plaintiffs existing right to claim
compensation, was merely
procedural in nature in the sense that it advanced the date before or
on which the plaintiff had to lodge
her claim without limiting the
period of three years the plaintiff had after 1 July 2007 to lodge
the claim. Consequently, this
repealing law dealing with procedure is
retrospective. Presumably the argument is then extended (although
this was not stated in
heads of argument or during the proceedings
before me) to a submission that the plaintiff is not entitled to rely
on the protection
of the Age of Majority Act or, for that matter on
the protection of section 12(2) of the Interpretation Act.
The
authority relied on by the defendant for this argument, such as it
is, is
Curtis v
Johannesburg Municipality
1906
TS 308
at 312 where the following was said by the learned Chief
Justice:
"Every law
regulating legal procedure must, in the absence of express provision
to the contrary, necessarily govern, so far
as it is applicable, the
procedure in every suit which comes to trial after the date of its
promulgation. Its prospective operation
would not be complete if this
were not so, and it must regulate all such procedure even though the
cause of action arose before
the date of promulgation, and even
though the suit may have been then pending. To the extent to which it
does that, but to no greater
extent, a law dealing with procedure is
said to be retrospective."
[28]
This subject is dealt with in
Minister
of Public Works v Haffejee NO
[1996] ZASCA 17
;
1996
3 SA 745
(AD) where the learned judge, at 752F-753A, quotes the
comment by BOTHA, JA in
Transnet
Ltd
v
Ngcezula
[1994] ZASCA 192
;
1995
3 SA 538
(A) at 549C-D on the above-quoted passage from
Curtis
:
"Of even
greater significance, for present purposes, is his statement that, to
the extent which the law must regulate the procedure
even though the
cause of action arose before the date of promulgation, 'but to no
greater extent', the law is said to be retrospective.
It is implicit
in the words I have emphasised that in a situation where more is
involved than the straight forward application
of the new procedure
to a cause of action which arose before promulgation, the convenient
way of saying that the law is retrospective
is no longer appropriate,
and that other considerations must come into play."
In
Haffejee
,
at 753B-C, the learned Judge of Appeal, MARAIS, JA, then goes on to
say:
"In
other words, it does not follow that once an amending statute is
characterised as regulating procedure it will always be
interpreted
as having retrospective effect. It will depend upon its impact upon
existing substantive rights and obligations. If
those substantive
rights and obligations remain unimpaired and capable of enforcement
by the invocation of the newly prescribed
procedure, there is no
reason to conclude that the new procedure was not intended to apply.
Aliter
if
they are not."
[29] In the present
case, in my opinion, the substantive rights of the plaintiff to
pursue her claim under the protection of the
Age of Majority Act,
which was still in force when the cause of action arose, were
substantially impaired by the repealing legislation
because, as
illustrated, and on the argument presented by the defendant, it
directly led to the claim becoming prescribed.
In
the result, and on the authority of
Haffejee,
supra
,
I am of the view that the
dictum
in
Curtis
cannot
be applied to this case.
[30]
In any event, it seems to me to be too simplistic to regard the
provisions of section 17 of the Children's Act as merely "regulating
legal procedure". It is a drastic measure with potentially wide
ranging implications involving,
inter
alia
,
the capacity to enter into contracts, to get married without the
assistance of a guardian and other issues. To that extent, it
seems
to me that the reliance on the
dictum
in
Curtis
is
in any event misplaced.
[31]
In
Protea
International (Pty) Ltd v Peat Marwick Mitchell & Co
[1990] ZASCA 16
;
1990
2 SA 566
(AD) it was also held, at 568I-J, that the extinction of a
contractual right of action by prescription is a matter of
substantive
law and not a procedural matter.
[32]
It is trite that there is a presumption, when it comes to
interpretation, that the legislature does not intend statutes to
be
retrospective in their operation - see the discussion on the subject
by J R de Ville
Constitutional
and Statutory Interpretation
p204-215
and the authorities there quoted, including
Adampol
(Pty) Ltd v Administrator, Transvaal
1989
3 SA 800
(AD) at 805E-808C.
[33] In all the
circumstances, and particularly in view of the provisions of section
12(2) of the Interpretation Act, I have come
to the conclusion that
the plaintiffs claim has not become prescribed, and that the special
plea of prescription should be dismissed.
The order
[34] I make the
following order. The defendant's special plea of prescription is
dismissed with costs which will include the costs
flowing from the
employment of senior counsel.
W
R C PRINSLOO
JUDGE
OF THE NORTH GAUTENG HIGH COURT
5011-2011
HEARD ON: 28 MARCH
2012
FOR THE PLAINTIFF: J
G BERGENTHUIN SC
INSTRUCTED BY: VAN
ZYL LE ROUX INC
FOR THE DEFENDANT: N
MARITZ
INSTRUCTED BY:
DYASON INC