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[2020] ZASCA 51
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van Zyl NO v Road Accident Fund (263/19) [2020] ZASCA 51; 2020 (4) SA 503 (SCA) (6 May 2020)
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THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
no: 263/19
In
the matter between:
PHILLIPA
SUSAN VAN ZYL NO
APPELLANT
and
THE
ROAD ACCIDENT FUND
RESPONDENT
Neutral
citation:
Phillipa Susan van Zyl
NO v The Road Accident Fund
(263/19)
[2020] ZASCA 51
(6 May 2020)
Coram:
MAYA P and ZONDI and MOKGOHLOA JJA and KOEN and EKSTEEN AJJA
Heard
:
16 March 2020
Delivered
:
This judgment was handed down electronically by circulation to the
parties’ legal representatives
by email, publication on the
Supreme Court of Appeal website and release to SAFLII. The date and
time for hand-down is deemed to
be 10h00 on 6 May 2020.
Summary:
Interpretation of statutes – provisions of
Prescription Act
68 of 1969
not applicable to claims under the
Road Accident Fund Act
56 of 1996
– prescription of such claims regulated by
s 23
of
Road Accident Fund Act.
ORDER
On
appeal from:
Eastern Cape Division of the High Court, Grahamstown
(Bloem J, sitting as court of first instance):
The
appeal is dismissed with no order as to costs.
JUDGMENT
Zondi
JA (Maya P and Mokgohloa JA and Koen and Eksteen AJJA concurring)
[1]
This 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 s 23 of the RAF Act, or whether
s 13(1)
of the
Prescription Act 68 of 1969
also applies to the claim. On behalf of
Mr Jacobs it was contended that the provisions of
s 13(1)
of the
Prescription Act also
apply to his claim for compensation under the
RAF Act and that his claim therefore had not become prescribed. The
argument on behalf
of the Road Accident Fund (the RAF), by contrast,
was that the provisions of s 23 of the RAF Act apply to the exclusion
of
s 13(1)
of the
Prescription Act.
[2
]
The Eastern Cape Division of the High Court, Grahamstown (Bloem J)
held that the provisions
of s 23 of the RAF Act apply to the claim to
the exclusion of s 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.
[3]
The issue arose in these circumstances. On 1 May 2010 and at
Willowmore, Eastern Cape,
Mr Jacobs, who was born on 2 November 1972,
sustained serious head injuries when a motor vehicle bearing
registration number CB
534376, in which he was a passenger, was
involved in a collision. His occupational functioning has been
adversely affected due
to the combination of physical difficulties
(left hemiparesis and communication difficulties) and symptoms of
Organic Brain Syndrome.
The nature and extent of the injuries
sustained by Mr Jacobs are set out more fully in the medico-legal
report compiled by Dr David
Shevel. He lodged a claim with the RAF on
18 January 2017, some seven years after the date of the accident. The
RAF repudiated
the claim based on prescription. In terms of s 23 of
the RAF Act Mr Jacobs’ claim should have been lodged with the
RAF by
30 April 2013 and he should have served summons
against the RAF by 30 April 2015. He did not do so for the
reasons that will become apparent later in this judgment.
[4]
On 28 November 2017 the appellant was appointed as the
curatrix
ad litem
to Mr Jacobs by order of court. That order placed Mr Jacobs under
curatorship. On 8 March 2018 the appellant in her capacity as
curatrix
ad litem
instituted action against the RAF
[1]
in which she claimed damages on behalf of Mr Jacobs. The RAF defended
the action and raised a special plea of prescription. It
contended
that the right to claim compensation under s 17 of the RAF Act had
prescribed as it was not lodged within the period
of three years from
the date of the accident, and that Mr Jacobs did not fall under the
categories of persons referred to in s
23(2) of the RAF Act. The
persons referred to in s 23(2) are ‘a minor; any person
detained as a patient in terms of any mental
health legislation; or a
person under curatorship’. Subsection (3) provides that once a
claim has been lodged in terms of
s 17(4)
(a)
or s 24 of the RAF Act, a claimant gains an additional two years
before the claim finally prescribes.
[2]
[5]
It is apparent from the facts thus far set out that Mr Jacobs,
because of prescription,
could not claim compensation under the RAF
Act unless the provisions of the
Prescription Act also
apply to his
claim. The appointment of the
a
curatrix did not
render him retrospectively a person under curatorship as contemplated
by s 23(2)
(c)
of the RAF Act. That appointment occurred when
his claim had already prescribed.
[6]
In her replication, the appellant pleaded that although Mr Jacobs did
not
strictu senso
fall within the class of persons referred to
in s 23(2) of the RAF Act, he had at all times material hereto, since
the incident
on 1 May 2010, been of unsound mind and/or was insane
and/or unable to manage his affairs and would have qualified for the
appointment
of a
curator ad litem
to assist him with the
litigation. The alternative reply to the RAF’s prescription
plea was pleaded as follows:
‘
6.
Further in the alternative and in any event, the provisions of
sections 12(3) and/or
13(1)(a) of the
Prescription Act 68 of 1969
find application, in that the Patient, at all material times hereto:
6.1
has lacked (a) the requisite capacity to institute action, and (b)
the ability to gain “
knowledge of the identity of the debtor
and of the facts from which the debt arises”
, as envisaged
by
section 12(3)
of Act 68 of 1969; and/or
6.2
is to be regarded as an “
insane”
person (i.e. of
unsound mind incapable of managing his affairs and with no capacity
to institute action) as envisaged by section
13(1)(a) of Act 68 of
1969, read with
Road Accident Fund v Smith NO
1999 (1) SA 92
(SCA) and
RAF v Mdeyide and another
[2007] ZACC 7
;
2007 (7) BCLR 805
(CC) at
paragraphs 31 to 40.’
[7]
Section 23 of the RAF Act provides:
‘
23.
Prescription of claim.─
(1)
Notwithstanding anything to the contrary in any law contained, but
subject to subsections (2) and (3), the
right 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)
any person detained as a patient in terms of any mental health
legislation; or
(c)
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.’
[8]
The material provisions of
s 13(1)
(a)
of the
Prescription Act
read
:
‘
13. Completion
of prescription delayed in certain circumstances
.–(1) If-
(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)
…the period of prescription shall
not be completed before a year has elapsed after the day referred to
in paragraph (i).’
[9]
The special plea was separately adjudicated by the high court and for
that purpose
the parties agreed that the following facts were common
cause between them:
‘
1.
The patient was involved in a motor vehicle collision on 1 May 2010;
2.
The patient’s claim was lodged with the Road Accident Fund on
18 January
2017;
3.
The Curatrix Ad Litem was appointed by a court order on 28 November
2017;
4.
Purely for purposes of the adjudication of the Special Plea of
prescription,
the Defendant admits:
4.1
The content of the medico-legal reports of Dr D Shevel and Dr R
Melvill;
4.2
That the patient, Mr Koos Jacobs, was rendered of unsound mind and/or
non-compos mentis
as a result of the injuries sustained in the
incident dated 1 May 2010, as described in the Particulars of Claim
at paragraph 3.
In the event of the Special Plea not being upheld,
the Defendant shall not be bound by such admission and reserves its
rights to
obtain its own expert reports in rebuttal of the views
expressed in the reports of Dr Shevel and Dr Melvill.
5.
Summons was issued against the Defendant of 8 [March] 2018.’
[10]
In upholding the special plea the high court held that
s 13(1)
(a)
of the
Prescription Act does
not apply to Mr Jacobs’ claim
because of the inconsistency between the provisions of that section
and those of s 23(2)
(b)
of the RAF Act.
[11]
Counsel for the appellant submitted that upholding the high court
judgment will result in the
exclusion of two classes of persons from
protection, namely mentally incapacitated persons, unless they are
detained as patients
in terms of the mental health legislation
referred to under s 23(2)
(b)
and other mentally disabled unless they are under curatorship
as envisaged in s 23(2)
(c)
of the RAF Act. He argued that the decision of this Court in
Road
Accident Fund v
Smith
NO,
[3]
which held that both classes of persons were protected by
s 13(1)
(a)
of the
Prescription Act, was
not overruled expressly by the
Constitutional Court in
Road
Accident Fund and Another v Mdeyide
[4]
(
Mdeyide
2
). His
alternative argument was that should it be found that
Mdeyide
2
impliedly overruled
Smith
,
that
Mdeyide
2
was distinguishable, on the facts, from the present matter. This is
on the basis that
Mdeyide
2
concerned a person who was found to have been of sound mind, not a
person under curatorship, with the result that it did not deal,
first, with
s 13(1)
(a)
of the
Prescription Act; and
secondly, with the effect of s 23(2)
(b)
of the RAF Act on insane persons or persons of unsound mind.
[12]
In
Smith
, upon which the appellant placed much reliance, the
facts, which bear resemblance to the present case, were that on 27
May 1989
Mr Sibiya sustained bodily injuries in a motor vehicle
collision. In terms of the court order dated 14 June 1984, the
respondent
was appointed as
curator ad litem
to Mr Sibiya by
reason of his mental derangement. Shortly thereafter the respondent ,
on behalf of Mr Sibiya, lodged a claim for
compensation in terms of
article 62 of the schedule (the Agreement) to the Multilateral Motor
Vehicle Accidents Fund Act 93 of
1989 (the 1989 Act). The claim was
lodged with the Multilateral Motor Vehicle Accidents Fund whose
rights and obligations subsequently
devolved upon the present
respondent in terms of s 2(2)
(a)
of the RAF Act.
[13]
During September 1995 the respondent (Smith) instituted action
against the appellant in the high
court in which he claimed
compensation on behalf of Mr Sibiya. The appellant raised a special
plea that the claim had prescribed.
It argued that article 56 of the
Agreement regulated the running of prescription under the 1989 Act to
the exclusion of the Prescription
Act and that at the time of the
respondent’s appointment as
curator ad litem,
the claim
had already become prescribed. In response thereto the respondent
argued (a) that the provisions of the
Prescription Act prescription
do not run against an insane person or a person under curatorship,
and that Mr Sibiya was both insane and a person under curatorship
as
contemplated in the 1989 Act; and (b) that article 56 of the 1989 Act
provides that prescription shall not run against a person
under
curatorship, and that Mr Sibiya was such person.
[14]
The high court found that because Mr Sibiya was insane, the period of
prescription prescribed
by article 55 of the Agreement had not been
completed when the action was instituted by the respondent. It
accordingly dismissed
the appellant’s special plea.
[15]
On appeal the issue was whether the running of prescription in
respect of Mr Sibiya’s claim
under the 1989 Act was governed by
the provisions of articles 55 and 57 of the Agreement, or whether s
13(1) of the
Prescription Act was
also applicable. Farlam AJA,
who wrote on behalf of the majority, held that the
Prescription Act
also
applied to third party claims under the Agreement. He reasoned
that in the common law the principle was accepted that prescription
did not run against persons under disability during such disability.
The
Prescription Act also
protects persons under disability
(including those who are insane) from the consequences of the running
of prescription, no longer
by suspending the running of prescription,
but by delaying its completion until a year has elapsed since the
disability in question
has ceased to exist. According to Farlam AJA,
if Parliament had intended to deprive persons who had been protected
from the running
of prescription under the common law and later
protected under
s 13(1)
(a)
of the
Prescription Act of any
protection at all from prescription, he would have expected much
clearer language than the language which was used.
[16]
This was the position regarding the relationship between the RAF Act
and the
Prescription Act in
relation to the prescription of claims
under the RAF Act, until the Constitutional Court judgment in
Mdeyide
2
.
[17]
In
Mdeyide
v Road Accident Fund
[5]
(
Mdeyide
)
a blind, illiterate and innumerate man sustained certain bodily
injuries in a motor vehicle collision on 8 March 1999. On
17
September 1999 Mr Mdeyide, at his wife’s urging and accompanied
by her, visited the offices of the attorneys to obtain
advice and
assistance. One of the attorneys consulted with him and his wife in
preparation for submitting a claim for compensation
against the RAF.
On 11 March 2002, more than three years from the date of
the collision, a claim for compensation was
lodged with the RAF on
his behalf.
[18]
On 3 February 2003 the RAF wrote to Mr Mdeyide’s attorney
stating that his claim had prescribed,
but that it was willing to
entertain it provided that an application for condonation was made.
[19]
Mr Mdeyide’s action for damages flowing from the injuries
sustained in the collision was
instituted on 27 February 2004. In
response thereto the RAF raised prescription in terms of s 23(1) of
the RAF Act. Mr Mdeyide
replicated. He pleaded that he had no concept
of time and space and that his personal circumstances were relevant
because they
enabled him to rely on
s 12(3)
of the
Prescription Act.
This
section provides that ‘[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. . . .’
[20]
The matter was heard by Notshe AJ. He concluded that s 23(1) of the
RAF Act applied to Mr Mdeyide’s
claim and that his claim had
prescribed in terms of that section. Notshe AJ found that s 23(1) of
the RAF Act; insofar as it does
not make provision for the knowledge
of the debtor and of facts from which the debt arises, infringed upon
Mr Mdeyide’s rights
of access to court as enshrined in the
Constitution. He declared s 23(1) to be inconsistent with the
Constitution and for that
reason, he dismissed the RAF’s
special plea. Notshe AJ thereupon referred the matter to the
Constitutional Court for confirmation
of the order of invalidity.
[21]
In
Road
Accident Fund v Mdeyide and Another
[6]
(
Mdeyide
1
) the
matter came before the Constitutional Court to confirm the
declaration of invalidity order, which it declined to do. The
Constitutional Court concluded that insufficient evidence had been
presented in the high court regarding Mr Mdeyide’s capacity
to
litigate. It remitted the matter for further evidence, remarking that
Mr Mdeyide might have been able to invoke the protection
of s
13(1)
(a)
of the
Prescription Act if
it were to be found that after the
accident he had in fact been of unsound mind and in need of a
curator
ad litem
and one had been appointed for him before the termination of the
three-year period.
[22]
The high court thereupon conducted an inquiry, as envisaged in rule
57 of the Uniform Rules of
Court, into Mr Mdeyide’s capacity to
litigate. Although the high court found that Mr Mdeyide was of sound
mind, it nevertheless
reinstated the original order. It referred the
matter to the Constitutional Court for confirmation.
[7]
[23]
In the Constitutional Court two main submissions were made on behalf
of Mr Mdeyide. First, it
was argued that it was not necessary to
reach the constitutional issue. The argument was, that, by virtue of
s 16 of the Prescription
Act, s 12(3) of the same Act applies also to
cases falling under the RAF Act and delays the commencement of
prescription, until
the creditor acquires knowledge of the identity
of the debtor. Consequently, prescription would only have begun to
run when Mr
Mdeyide found out about the RAF during his first
consultation with his attorney. Thus, so it was argued, his claim
would not have
prescribed when he filed it. The alternative
submission was that the high court was correct in its reasoning and
conclusion that
s 23(1) of the RAF Act was unconstitutional.
[24]
In determining whether the provisions of the
Prescription Act applied
also to Mr Mdeyide’s claim, the Constitutional Court had
regard, first, to the text of s 23(1) of the RAF Act and
secondly,
to the provisions of
s 16
of the
Prescription Act,
[8
]
which state that the provisions of the
Prescription Act apply
save
insofar as they are inconsistent with the provisions of any Act of
Parliament.
[9]
[25]
In relation to the text of the RAF Act, the Constitutional Court
noted that the words ‘notwithstanding
anything to the contrary
in any law’ appearing in s 23(1) of the RAF Act, indicated that
the RAF Act was drafted with the
knowledge that other provisions on
prescription might exist on the statute book and in common law and
that the purpose of the RAF
Act was to regulate a specific and
separate area, namely claims for compensation against the RAF,
regardless of any other legal
rule.
[26]
As regards the question whether the provisions of the
Prescription
Act were
ousted by the provisions of the RAF Act, the Constitutional
Court undertook a consistency evaluation between the two Acts. It
found
that
s 12(3)
of the
Prescription Act and
s 23(1) of the RAF Act
‘differ with regard to the central topic in the two provisions,
namely the point when prescription
starts to run.’
[10]
The Constitutional Court stated that s 23(1) simply relies on the
date on which the cause of action arose, provided the requirements
of
s 17 are met. It does not require knowledge of the identity of the
debtor and of the facts from which the debt arises, as s
12(3) does.
As regards the identity of the debtor the Constitutional Court had
this to say at para 49 of the judgment:
‘
As to knowledge of
the
identity of the debtor
, the RAF as the debtor against whom
claims are lodged, differs from the debtors whose identity is
referred to in the
Prescription Act. The
reason why knowledge of the
identity of the debtor is required in the event of prescription of
claims in general is obvious. One
may often know that money is being
owed to you, for example in terms of a delictual claim for damage to
property, but one may not
know who caused the damage and thus who to
claim from, until this knowledge is gained from some investigation or
the emergence
of evidence otherwise. In contrast, the RAF does not
have an “identity” in the same sense that debtors in
general have.
It is not one of several or numerous possible
wrongdoers. It was never an actor in the facts making up the cause of
action. As
indicated earlier, knowledge of the identity of the driver
or owner of the vehicle is in any event required by
section 17.
The
RAF is a statutory body specifically created for the purpose of
compensating the victims of road accidents. Knowledge of the
identity
of the debtor thus means knowledge of the law, that is that a victim
of a motor vehicle accident has a claim against a
public fund, namely
the RAF.’
[27]
The Constitutional Court concluded that the
Prescription Act was
inconsistent with the provisions of the RAF Act and that
s 12(3)
of
the
Prescription Act can
, therefore, not apply to claims under the
RAF Act.
[11]
The appellant’s
contention that the
Smith
case
was not overruled by the Constitutional Court in
Mdeyide
2
, is
therefore unsustainable in light of its findings.
[28]
The conclusion that s 23(1) was drafted specifically to regulate
claims for compensation under
the RAF Act is also borne out by the
background against which the section was enacted. The words
‘notwithstanding the provisions
of any other law relating to
prescription’, were first inserted by s 11(1)
(a)
of the
Compulsory Motor Vehicle Insurance Amendment Act 69 of 1978.
[12]
This was in reaction to the confusion that prevailed regarding
whether prescription was governed by the relevant third party
compensation
legislation or by the Prescription Acts of 1943 and
1969. It has been retained in all subsequent sections of third party
compensation
legislation, including the Multilateral Motor Vehicle
Accidents Fund Act dealing with prescription.
[29]
Prior to the amendment of s 24(1) of the Compulsory Motor Vehicle
Insurance Act 56 of 1972, there
were judicial pronouncements to the
effect that both the
Prescription Act and
the common law relative to
interruption and suspension of prescription applied to the
prescriptive provisions of the section and
its precursor,
s 11
of the
Motor Vehicle Insurance Act 29 of 1942,
[13]
and that therefore prescription under the MVA Act did not run
against, for example, a person of unsound mind.
[30]
For these reasons the reliance by the appellant on the judgment of
Tuchten J in
Van
Rooyen NO v Road Accident Fund
,
[14]
cannot be correct. In that judgment Tuchten J held that
Smith
was not
impliedly overruled by
Mdeyide
2
on
the ground that the Constitutional Court in
Mdeyide
2
did
not expressly overrule or criticise
Smith,
nor did
it refer to the issue of availability of
s 13(1)
(a)
of the
Prescription Act, which
was left open in
Mdeyide 1
.
[31]
In my view,
Van Rooyen NO
was clearly wrong to the extent that
it sought to create an exception, in respect of incapacitated
persons, to the rule that the
Prescription Act and
the RAF Act are
inconsistent and that the question of prescription of third party
claims is solely governed by the RAF Act.
[32]
It was also submitted by the appellant in her heads of argument that
in interpreting s 23 of
the RAF Act, which, it was contended,
directly affects Mr Jacobs’ right of access to courts, the high
court should have had
regard to s 34 of the Constitution and,
with reference to
Mbele
v Road Accident Fund
[2016] ZASCA 134
;
[2016] 4 All SA 752
(SCA);
2017 (2) SA 34
(SCA)
para 17, the purpose of the RAF Act. It is correct that when
interpreting any legislation, a court is enjoined by s 39(2)
of the
Constitution to promote the spirit, purport and objects of the Bill
of Rights. The Constitutional Court in
Makate
v Vodacom (Pty) Ltd and Others
[15]
explained
how this interpretation exercise was to be approached:
‘
The objects of the
Bill of Rights are promoted by, where the provision is capable of
more than one meaning, adopting a meaning that
does not limit a right
in the Bill of Rights. If the provision is not only capable of a
construction that avoids limiting rights
in the Bill of Rights but
also bears a meaning that promotes those rights, the court is obliged
to prefer the latter meaning.’
[33]
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 s 23(2)
(c)
of the RAF Act. The
construction that I have placed on s 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.
[34]
For these reasons, I hold that 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.
[35]
The next question to determine is the issue of costs. The general
rule, when it comes to costs
liability, is that costs should follow
the result unless there exist sound and proper reasons for a
departure from this principle.
Having regard to the state of health
of Mr Jacobs as set out in the medico-legal reports of the experts,
which indicate that due
to the severity of the injuries he has been
rendered impecunious, I am of the view that there exists a sound
reason to depart from
the general rule. For that reason, in the
exercise of my discretion, I would not order Mr Jacobs to pay the
respondent’s
costs.
[36]
In the result the appeal is dismissed with no order as to costs.
_________________
ZONDI
JA
JUDGE
OF APPEAL
Appearances:
For
appellant:
M Harrington
Instructed
by:
Malcolm Lyons & Brivik Inc, Cape Town
Matsepes
Incorporated, Bloemfontein
For
respondent: K L
Watt
Instructed
by:
Joubert Galpin Searle, Grahamstown
Honey
Attorneys, Bloemfontein.
[1]
It is not clear when the summons was served on the RAF.
[2]
Mr Jacobs was placed under curatorship on 28 November 2017 when his
claim had become prescribed under the Act.
[3]
Road
Accident Fund v Smith NO
1999
(1) SA 92 (SCA); [1998] 4 All SA 429 (A).
[4]
Road
Accident Fund v Mdeyide
[2010]
ZACC 18
;
2011 (1) BCLR 1
(CC);
2011 (2) SA 26
(CC).
[5]
[2006]
ZAECHC 125.
[6]
[2007]
ZACC 7
;
2007 (7) BCLR 805
(CC);
2008 (1) SA 535
(CC)
.
[7]
Mdeyide
2
.
[8]
Section
16 provides:
‘
(1)
Subject to the provisions of subsection (2)
(b)
,
the provisions of this chapter shall, save in so far as they are
inconsistent with the provisions of any Act of Parliament which
prescribes a specified period within which a claim is to be made or
an action is to be instituted in respect of a debt or imposes
conditions on the institution of an action for the recovery of a
debt, apply to any debt arising after the commencement of this
Act.
(2)
The provisions of any law–
(a)
which immediately before the commencement of this Act applied to the
prescription
of a debt which arose before such commencement; or
(b)
which, if this Act had not come into operation,
would have applied to the prescription of a debt which arose or
arises out of
an advance or loan of money by an insurer to any
person in respect of an insurance policy issued by such insurer
before 1 January
1974, shall continue to apply to the prescription
of the debt in question in all respects as if this Act had not come
into operation.’
(Emphasis added.)
It
is clear from the text of
s 16
of the
Prescription Act that
the
section recognises the fact that there were other pieces of
legislation which regulated prescription before the RAF Act came
into operation.
Section 16(2)
of the
Prescription Act safeguards
the
continued application of the legislation concerned in certain
circumstances.
[9]
The
RAF Act in this case.
[10]
Mdeyide
2
para
47.
[11]
Mdeyide
2
para
53.
[12]
This
Act was repealed by s 19 of the Motor Vehicle Accidents Act 84 of
1986, which was in turn repealed by s 27 of the RAF Act.
[13]
Terblanche
v South African Eagle Insurance Co Ltd
[1983]
2 All SA 13
(N);
1983 (2) SA 501
(N) at 504C-H.
[14]
Van
Rooyen NO v Road Accident Fund
[2018]
ZAGPPHC 675; 2019 (2) SA 290 (GP).
[15]
[2016] ZACC 13
;
2016 (6) BCLR 709
(CC);
2016 (4) SA 121
(CC) para
89.