CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 55/23
In the matter between:
SHOPRITE CHECKERS (PTY) LIMITED Applicant
and
CECIL TSHEPO MOKOPANE MAFATE N.O. Respondent
Neutral citation: Shoprite Checkers (Pty) Limited v Mafate N.O. [2024] ZACC 16
Coram: Bilchitz AJ, Chaskalson AJ, Dodson AJ, Madlanga J, Majiedt J,
Mathopo J, Mhlantla J, Theron J and Tshiqi J.
Judgment: Madlanga J (unanimous)
Heard on: 29 February 2024
Decided on: 15 August 2024
ORDER
On appeal from the Supreme Court of Appeal (hearing an appeal from the High Court
of South Africa, Gauteng Division, Johannesburg):
1. Leave to appeal is granted.
2. The appeal is dismissed with costs.
2
JUDGMENT
MADLANGA J ( Bilchitz AJ, Chaskalson AJ, Dodson AJ, Majiedt J, Mathopo J,
Mhlantla J, Theron J and Tshiqi J concurring):
Introduction
[1] In the Supreme Court of Appeal judgment that is the subject of this appeal
Petse AP aptly opens by saying that the appeal raises “crisp but vexed questions”.1 This
is an application for leave to appeal against that judgment. In the main, the application
is about extinctive prescription, in particular the interpretation of section 13(1)(a) and (i)
of the Prescription Act.2
Background
[2] Ms Nolunga Mkhwanazi worked as a packer for a business entity called Smollan
Sales and Marketing which offers merchandising service s at retail stores. On
15 October 2014 Ms Mkhwanazi was doing merchandising work at Checkers Hyper at
the Meadowdale Mall in Edenvale. Part of what she did on the day entailed being lifted
high up in a cage that was attached to a forklift. This was done to enable her to pack
merchandise on high -up shelves. When the cage was a few metres up, it tilted.
Ms Mkhwanazi fell off. As she lay on the floor , the cage came hurtling down, hitting
her on her head. The severe head injury she sustained resulted in mental incapacity,
which, it is common cause, is permanent.
1 Shoprite Checkers (Pty) Ltd v Mafate [2023] ZASCA 14; 2023 (4) SA 537 (SCA ) (Supreme Court of Appeal
judgment) at para 1.
2 68 of 1969.
MADLANGA J
3
[3] On 1 February 2017 , Mr Cecil Tshepo Mokopane Mafate , the respondent, was
appointed as curator ad litem 3 to prosecute a damages claim on behalf of
Ms Mkhwanazi. Exercising his mandate, Mr Mafate instituted a delictual claim in the
High Court of South Africa, Gauteng Division, Johannesburg , against Shoprite
Holdings Limited on 22 February 2017. In a special plea, which raised misjoinder and
non-joinder, filed on 28 July 2017, Shoprite Holdings Limited pleaded that the
Checkers Hyper at the Meadowdale Mall in Edenvale did not belong to it, but to
Shoprite Checkers (Pty) Ltd (Shoprite Checkers), the applicant before us. In the special
plea Shoprite Holdings Limited explained that Shoprite Checkers was its wholly owned
subsidiary. Just under a year later, on 28 June 2018, Mr Mafate withdrew the action
against Shoprite Holdings Limited. About four months later, on 19 October 2018, he
served the summons in the present action on Shoprite Checkers.
[4] By way of a special plea, Shoprite Checkers raised a defence that the claim had
prescribed. This, on the basis tha t 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. I will render fully the
then applicable version of se ction 13(1) later. For now, let me say that the effect of
section 13(1)(a) to (h) read with (i) and the end-part of section 13(1)4 is that, for as long
as a person falls under the categories set out in paragraph s (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.
3 A curator ad litem is a person appointed by a court to institute specified legal proceedings on behalf of another,
usually a mentally incapacitated person or sometimes a minor.
4 By “the end-part” of section 13(1), I am referring to the part that comes after paragraphs (a) to (i) of the section
and which reads “the period of prescription shall not be completed before a year has elapsed after the day referred
to in paragraph (i)”. The context in which this appears will be given later.
MADLANGA J
4
[5] With this in mind, Shoprite Checkers’ special plea proce eded from the
proposition 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.
[6] 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) and the end -part 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.
[7] In a replication, Mr Mafate took issue with the special plea of prescription. He
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 within the meaning of section 12(3), which 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: Provided that a creditor shall
be deemed to have such knowledge if he could have acquired it by exercising
reasonable care.”
[8] Mr Mafate took the view 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.
MADLANGA J
5
[9] At the instance of the parties, the High Court separated the issues in terms of
rule 33(4) of the Uniform Rules of Court. The issue to be determined first was whether
the claim had prescribed. The rest of the issues were to be determined at a later stage.
For purposes of the prescription point, the parties reached agreement on a set of facts
on the basis of which the point would be determined. I do not think it necessary to set
out those facts as they are basically what has been summarised above. Likewise, the
legal contentions raised by the parties on the prescription point were those that I have
already captured.
[10] The High Court dismissed the special plea. Manoim AJ held:
“I find that a curator ad litem, notwithstanding the provisions of section 13(1)(a), may
also rely on section 12(3). This conclusion is based on the fact that the two sections
are not inconsistent, secondly any other interpretation would lead to an injustice and
thirdly that this interpretation is the one more consistent with the constitutional right of
access to courts guaranteed by section 34 of the Constitution which states:
‘Everyone has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before a court or,
where appropriate, another independent and impartial tribunal or
forum.’”
[11] The High Court granted leave to appeal to the Supreme Court of 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). The effect of this holding was that, at the t ime 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.5
[12] The Supreme Court of Appeal also held that th e condition of mental incapacity
would cease to exist only when Ms Mkhwanazi recovered from it, 6 something that
5 Supreme Court of Appeal judgment at para 33.
6 Id at para 35.
MADLANGA J
6
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.
[13] The Supreme Court of Appeal did not find it necessary to determine
Shoprite Checkers’ section 12(3) argument.
[14] Before us each party stands by its position of sustainability or non-sustainability
of the prescription defence. On jurisdiction, the parties’ submissions are as follows.
Shoprite Checkers argues that the matter raises an arguable point of law of general
public importance which ought to be considered by this Court. That point concerns the
interpretation of section 13(1) and the interplay between that section and section 12(3)
of the Prescription Act. Shoprite Checkers submits that this point is of gener al public
importance as its determination will provide legal certainty on the interpretation of
section 13(1).
[15] Shoprite Checkers contends that three constitutional issues are engaged. First,
prescription raises a constitutional issue as it may have an adverse impact on a creditor’s
right to pursue a claim that would otherwise be valid and enforceable. Second, it is
submitted that inordinate delays in the finalisation of claims are at odds with legal
certainty, which is better served by the timeous prosec ution of claims. Third and
relatedly, it is contended that Shoprite Checkers’ right of access to courts is implicated.
[16] Mr Mafate argues that Shoprite Checkers’ contentions do not engage this Court’s
jurisdiction. He also submits that leave to appeal oug ht to be refused as it is not in the
interests of justice to hear the matter. The latter contention is substantiated on the basis
that Shoprite Checkers, a large company with financial might, has for the past decade
used its deep pockets to frustrate the claim of Ms Mkhwanazi, an indigent , mentally
incapacitated woman. Further, it is contended that Shoprite Checkers lacks reasonable
prospects of success as the High Court and Supreme Court of Appeal have provided
cogent interpretations of section 13(1).
MADLANGA J
7
[17] At this juncture, I must point out that Mr Mafate was represented by
Ms Nasreen Rajab-Budlender SC, Ms Salome Manganye and Ms Nicola Soekoe.
All three counsel appeared pursuant to a request made by this Court to the Pan African
Bar Association of South Africa (PABASA) to appoint counsel to assist it, as Mr Mafate
did not have a legal practitioner to represent him at the hearing. PABASA appointed
the three counsel. Although the request was made a couple of days before the hearing,
the three counsel were re ady to appear and present oral argument. The Court granted
them leave to file written submissions after the hearing, also affording
Shoprite Checkers an opportunity to file written submissions in response. Indeed, each
side filed post -hearing written sub missions. The Court is indebted to Ms Rajab-
Budlender SC and her team for their valuable assistance.
Jurisdiction
[18] This Court’s constitutional jurisdiction is engaged. Extinctive prescription limits
the time within which a claim may be brought. The timeous prosecution of a claim
impacts the fairness of a hearing which, in turn, better guarantees justice between the
litigating disputants. Section 34 of the Constitution affords everyone the right to a fair
hearing.7 Inordinate delays detract from the fairness of a hearing and, indeed, “damage
the interests of justice”.8 In Mohlomi,9 Didcott J said:
“Rules that limit the time during which litigation may be launched are common in our
legal system as well as many others. Inordinate delays in litigating damage the interests
of justice. They protract the disputes over the rights and obligations sought to be
enforced, prolonging the uncertainty of all concerned about their affairs. Nor in the
end is it always possible to adjudicate satisfactorily on cases that have gone stale. By
then witnesses may no longer be available to testify. The memories of ones whose
testimony can still be obtained may have faded and become unreliable. Documentary
7 Section 34 of the Constitution.
8 Obvious examples of prejudice arising from delay are the forgetfulness of witnesses, loss of witnesses through
death or other phenomena and loss of evidence, for example, documents or electronic and mechanical material.
9 Mohlomi v Minister of Defence [1996] ZACC 20; 1997 (1) SA 124 (CC); 1996 (12) BCLR 1559 (CC) at para 11.
MADLANGA J
8
evidence may have disappeared. Such rules prevent procrastination and those harmful
consequences of it. They thus serve a purpose to which no exception in principle can
cogently be taken.”
[19] In similar vein, Mahomed CJ had this to say in Molloy:10
“One of the main purposes of the Prescription Act is to protect a debtor from old claims
against which it cannot effectively defend itself because of loss of records or witnesses
caused by the lapse of time. If creditors are allowed by their deliberate or negligent
acts to delay the pursuit of their claims without incur ring the consequences of
prescription that purpose would be subverted.”
[20] Despite the fact that the principle to be gleaned directly from these two cases
concerns balancing the interests of creditors and debtors, on a proper reading, the cases
do support the point I make regarding this Court’s jurisdiction.
Leave to appeal
[21] Coming to leave to appeal, the very fact that the matter does not admit of easy
resolution shows that there are reasonable prospects of success. Additionally, the issues
before us are of import. This is especially so as the plaintiff is from a vulnerable group
within our society, i.e. mentally incapacitated persons. Leave to appeal must be granted.
Must the appeal succeed?
[22] I promised earlier to quote section 13(1) in full. Here it is as it read at the time
the issues arose:
“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); or
(b) the debtor is outside the Republic; or
10 Uitenhage Municipality v Molloy [1997] ZASCA 112; 1998 (2) SA 735 (SCA) at 146.
MADLANGA J
9
(c) the creditor and debtor are married to each other; or
(d) the creditor and debtor are partners and the debt is a debt which arose out of
the partnership relationship; or
(e) the creditor is a juristic person and the debtor is a member of the governing
body of such juristic person; or
(f) the debt is the object of a dispute subjected to arbitration; or
(g) the debt is the object of a claim filed against the estate of a debtor who is
deceased or against the insolvent estate of the debtor or against a company in
liquidation or against an applicant under the Agricultural Credit Act, 1966 (Act
28 of 1966); or
(h) the creditor or the debtor is deceased and an executor of the estate in question
has not yet been appointed; and
(i) the relevant period of prescription would, but for the provisions of this
subsection, be completed before or on, or within one year after, the day on
which the relevant impediment referred to in paragraph (a), (b), (c), (d), (e),
(f), (g) or (h) has ceased to exist,
the period of prescription shall not be completed before a year has elapsed after the day
referred to in paragraph (i).”
[23] It is to be noted from paragraph (i ) of this section that what are itemised in
paragraphs (a) to (h) are referred to as “impediments”. That is, impediments to a
creditor’s ability to institute proceedings. These are not necessarily all impediments in
the true sense. Saner explains:
“The use of the word ‘impediment’ in section 13(1)(i) is not to be taken too literally
and interpreted as meaning an absolute bar to the institution of legal proceedings.
While some of the circumstances set forth in section 13(1)(a) to (h) give rise to an
absolute bar, others do not. An example of the former is section 13(1)(h), and an
example of the latter is section 13(1)(e). The word ‘impediment’ therefore covers a
wide spectrum of situations ranging from those in which it would not be possible in
law for the creditor to sue to those in which it might be difficult or awkward, but not
impossible, to sue. In short, the impediments range from the absolute to the relative.”11
11 Saner Prescription in South African Law (LexisNexis, Cape Town 2023) Service Issue 34 at 222-3.
MADLANGA J
10
[24] Before clarifying how the period of prescription runs under section 13(1), let me
first set out the context provided by section 12. In terms of section 12(1), prescription
begins to run as soon as the debt is due. Section 12(3) provides that the debt is deemed
to be due once the creditor has knowledge of the identity of the debtor and of the facts
giving rise to the debt. So, where the creditor has immediate (i.e. immediately after the
occurrence in issue) knowledge of the identity of the debtor and the facts from which
the debt arises, the debt becomes due immediately. Where that is not the case, the debt
will become due at a later date, which will be when the creditor acquires actual
knowledge of the two categories of mentioned factual material. The p roviso to
section 12(3) is to the effect that, even where such knowledge has not been acquired,
the knowledge shall be deemed to have been acquired if it could have been acquired
through the exercise of reasonable care.
[25] There may be instances where the cr editor does not have a mental incapacity
when the debt arises but several months later they suffer a brain injury or are afflicted
with a brain disease that causes mental incapacity. There, depending on whether the
creditor had become aware of the two cat egories of factual material referred to above
or ought reasonably to have become aware of them, the debt may have become due
prior to the mental incapacity. In that event, prescription would have started to run, but
the subsequent brain injury or disease and mental incapacity would affect the
completion of the prescription period.
[26] Insofar as people with mental incapacity are concerned, it is clear from
paragraph (i) of section 13(1) that there is a notional date of commencement of the
running of prescript ion. There is such a notional commencement date because
paragraph (i) refers to a time when, but for an impediment referred to in paragraphs (a),
(b), (c), (d), (e), (f), (g) or (h), the period of prescription would have been completed.
There cannot be “completion” without commencement, even if the commencement be
notional. If we do not accept the idea of notional commencement, section 13(1) would
otherwise be rendered inoperable. Fortunately, in this matter, we do not have to decide
the point from which the notional date must be reckoned.
MADLANGA J
11
[27] I next clarify how the period of prescription runs a nd gets completed under
section 13(1). Paragraph (i) envisages the possibility – in some instances – of the
relevant impediment referred to in paragraphs (a) to (h) ceasing to exist. Since the
relevant period of prescription (three years, in this matter) will have been running
throughout, there are the possibilities that, when the impedim ent ceases, the three-year
period will, or will not, have expired.
[28] Paragraph (i) provides that if the relevant period of prescription would, but for
the impediments contained in section 13(1)(a) to (h), be co mpleted before or on, or
within one year after, the day on which the relevant impediment has ceased to exist, the
period of prescription shall not be completed before a year has elapsed after the day of
cessation of the impediment. That means if, on or before the date of cessation of the
impediment, the period of prescription would have been completed, the claimant has
only a year – not three years – within which to institute proceedings. Even where the
period of prescription would have been completed within a year after the impediment
had ceased, the claimant still has a year from the date of cessation of the impediment to
bring action. If, by the date of cessation of the impediment, the period still remaining
was more than a year, the claim must be instituted within that remaining period.12
[29] Paragraph (a) – as amended by the Prescription in Civil and Criminal Matters
(Sexual Offences) Amendment Act13 – now reads—
“the creditor is a minor or is a person with a mental or intellectual disability, disorder
or incapacity, or is affected by any other factor that the court deems appropriate with
regard to any offence referred to in section 12(4), 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).”
12 ABP 4×4 Motor Dealers (Pty) Limited v IGI Insurance Company Limited 1999 (3) SA 924 (SCA) at para 10.
13 15 of 2020.
MADLANGA J
12
[30] The amendment served the important purpose of getting rid of the offensive word
“insane” in the old paragraph (a). The amendment introduced a substitute descriptor
that refers to “a person with a mental or intellectual disability, disorder or incapacity”.
I do not think this amendment was intended to introduce a change in the category of
people referred to. In referring to Ms Mkhwanazi’s condition, I will not use the old
terminology. For convenience, I will not use the full new, long descriptor. Instead, I
will use the shortened terminology “mental incapacity”.
[31] How people are labelled may implicate the right to dignity. People with mental
incapacity, a vulnerable group, are highly deserving of the protection of their dignity.
This is so because they are less likely to fight , or be able to fight, for this protection.
Unsurprisingly, Article 1 of the Convention on the Rights of Persons with Disabilities14
provides, amongst others, that the Convention seeks to promote respect for the inherent
dignity of persons with disabilities. In terms of this Article, persons with disabilities
include persons with “mental, intellectual or sensory impairments which in interaction
with various barriers may hinder their full and effective participation in society on an
equal basis with others”.
[32] There is no issue about the nature of Ms Mkhwanazi’s condition as the parties
are agreed that her condition is covered by the old section 13(1)(a). Thus, I do not have
to delve into (a) what exactly constitutes mental incapacity – as was done in cases like
Pheasant15 – and (b) whether Ms Mkhwanazi fits into that category. I will simply
accept that she does. Indeed, that is not an issue on which the parties required an answer
on the separated question sought to be determined first.
[33] In accordance with the Endumeni interpretative triad of language, context and
purpose,16 the language we are concerned with is that of an impediment arising from
14 Convention on the Rights of Persons with Disabilities, 12 December 2006. South Africa ratified the Convention
in 2007.
15 Pheasant v Warne 1922 AD 481.
16 Natal Joint Municipal Pension Fund v Endumeni Municipality [2012] ZASCA 13; 2012 (4) SA 593 (SCA). In
this case Wallis JA held at para 18:
MADLANGA J
13
mental incapacity. This language is used in the overall context of the balance that the
Prescription Act seeks to strike between the conflicting interests of creditors, on the one
hand, and of debtors, on the other. 17 The purpose of the inclusion of this impediment
in section 13(1)(a) is to safeguard the interests of the vulnerable group of persons
suffering from mental incapacity in a manner that guarantees that the running of
prescription will not be completed for as long as the impediment persists.
[34] The interpretation advocated by Shoprite Checkers says, upon the appointment
of the curator ad litem , Ms Mkhwanazi’s impediment ceas ed to exist ; the
curator ad litem could institute proceedings on her behalf. Therefore, she had only one
year from the date of such cessation to institute proceedings. 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. I do not think that paragraph (i) and
the end-part of section 13(1) read with paragraph (a), insofar as the latter paragraph
relates to mentally incapacitated persons, meant to divest such persons of the paragraph
(a) protection in circumstances where there was no guarantee of an optimal safeguard
of their interests.
“Interpretation is the process of attributing meaning to the words used in a document, be it
legislation, some other statutory instrument, or contract, having regard to the context provided
by reading the particular provision or provisions in the light of the document as a whole and the
circumstances attendant upon its coming into existence. Whatever the nature of the document,
consideration must be given to the language used in the light of the ordinary rules of grammar
and syntax; the context in which the provision appears; the apparent purpose to which it is
directed and the material known to those responsible for its production. Where more than one
meaning is possible each possibility must be weighed in the light of all these factors. ”
This Court has endorsed Endumeni a number of times, but so as not to clutter annotations, I refer only to Road
Traffic Management Corporation v Waymark Infotech (Pty) Limited [2019] ZACC 12; 2019 (5) SA 29 (CC); 2019
(6) BCLR 749 (CC) and Diener N.O. v Minister of Justice and Correctional Services [2018] ZACC 48; 2019 (2)
BCLR 214 (CC); 2019 (4) SA 374 (CC).
17 See Mohlomi above n 9 and Molloy above n 10.
MADLANGA J
14
[35] Assuming that Shoprite Checkers’ interpretation were correct, the possibility of
the claim supposed to be prosecuted by the curator ad litem prescribing ca nnot be
discounted. In fact, the inordinate delays by the curator ad litem in this very case are
an indication that things may go wrong. I am not saying they did in this instance. Where
the claim does prescribe in the hands of the curator ad litem, it would be cold comfort
to say that the affected person with a mental incapacity has a claim against the
curator ad litem. The person would be in as good a position as where they were before,
if not worse off. I would sooner continue to have a claim against an established, huge
company like Shoprite Checkers than to have a new claim against, for example, an
attorney from a small law firm or an individual advocate. 18 Why then should the
impediment contained in paragraph (a) not continue unaffected by the appo intment of
a curator ad litem? I do not see why not. This is less about whether there is a person
(the curator ad litem ) who can bring action on behalf of the person with a mental
incapacity. It is more about the optimal protection of the interests of a person belonging
to a vulnerable group; a person certainly deserving of such protection.
[36] That this must be so is supported by the comparable, but, of course, different,
position of a minor child. For as long as a minor child has a parent or legal guardian,
legal proceedings may be instituted on their behalf during minority. For purposes of
the protection afforded by section 13(1), however, this fact is irrelevant. The only real
difference in the case of an adult person with a mental incapacity is that there is not – on
a continuous basis – a person who may institute legal proceedings on their behalf.
There has to be the positive step of appointing someone – a curator ad litem – who must
institute specified proceedings. It cannot be that this ad hoc appointment must have the
drastic consequence Shoprite Checkers is urging upon us. For the duration of “office”,
the interposed curator ad litem is comparable to the parent or legal guardian in the case
of a minor child.
18 I give the examples of an attorney or advocate because curators ad litem are ordinarily appointed from their
ranks.
MADLANGA J
15
[37] The appointment of curators ad litem in respect of persons with mental
incapacity is a chance occurrence. It just does not accord with my sense of justice that
such chance occurrence should result in the affected people with mental incapacity
being divested of the wholesome, meaning ful protection enjoyed by a substantial
number of other persons with mental incapacity in respect of whom there are no such
appointments. Any benefits that may be derived from the appointment of a
curator ad litem are not reason enough to divest a person with mental incapacity of
continued protection.
[38] This interpretation sits comfortably with the language of the section.
Ms Mkhwanazi and similarly placed persons are persons with a mental incapacity as
envisaged in section 13(1)(a). The overall context of balancing the interests of creditors
and debtors does not detract from this interpretation. This is especially so here as – on
one side of the scale – we have creditors who are mentally incapacitated. The scale
must tilt in their favour. The interpretation I proffer advances the purpose of protecting
the vulnerable group of persons with mental incapacity from the completion of the
period of prescription for as long as the incapacity persists.
[39] An overarching constitutional imperative in the interpretat ive exercise is to be
found in section 39(2) of the Constitution, which provides that “[w]hen 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”. In
this matter, each side is appealing to a right protected in the Bill of Rights. Each calls
in aid section 34 of the Constitution. The question that arises is: whose appeal to
section 34 must take precedence?
[40] In instances where – whilst a court is engaged in an interpretative exercise in
accordance with section 39(2) – there are competing provisions that bear relevance to
the spirit, purport and objects of the Bill of Rights, this Court has held that such a
situation calls for a balancing exercise. Here is what Langa CJ said in Phumelela:
MADLANGA J
16
“[T]he promotion of the spirit, purport and objects of the Bill of Rights cannot be
confined to the impact of section 25 of the Constitution alone, as Phumelela seems to
suggest. The process of weighing up must include consideration of other provisions of
the Bill of Rights which might be relevant to the issue, for example, as has already been
mentioned, the right to freedom of trade.
In its judgment, the Supreme Court of Appeal noted that goodwill is a valuable asset in
the sphere of competition. The Bill of Rights does not expressly promote competition
principles, but the right to freedom of trade, enshrined in section 22 of the Constitution
is, in my view, consistent with a competitive regime in matters of trade and the
recognition of the protection of competition as being in the public welfare.
It is not permissible for a litigant to simply carve out those provisions that are
favourable to it in the application of section 39(2). The interest s of other holders of
rights must also be taken into account in the balancing exercise. In this case, the
section 39(2) exercise would have to balance the goodwill enjoyed by Phumelela
against the rights that may be protected by the right to trade.”19
[41] In this case as well, a balancing exercise is called for. It matters not that the
adversaries rely on the same right, i.e. section 34 of the Bill of Rights. The point is that
each party relies on the right to advance different interests in the interpretative exercise.
Shoprite Checkers is advancing the interest that there must be finality to litigation as
otherwise there may be no fairness in a trial that takes place when the memory of
witnesses has faded, when evidence has been lost and when witnesses h ave died or are
no longer available for whatever other reason. On the other side, the question is one of
preserving the right of access to court for as long as there is a section 13(1) impediment.
[42] For the reasons I proffer for the interpretation I render in paragraphs [33] to [39],
the result yielded by a balancing exercise engaged in for purposes of sect ion 39(2) is
one that says the appointment of a curator ad litem does not divest a person with mental
incapacity of the protection afforded by section 13(1) for as long as mental incapacity
exists. Simply put and as I said above, the scale must tilt to the side of preserving the
19 Phumelela Gaming and Leisure Limited v Grundlingh [2006] ZACC 6; 2007 (6) SA 350 (CC); 2006 (8) BCLR
883 (CC) at paras 35-7.
MADLANGA J
17
interests of mentally incapacitated creditors given that, if the claim were to prescribe,
the denial of their rights to institute a claim would be absolute.
[43] In sum, the section 13(1) protection founded on mental incapacity continues for
as long as Ms Mkhwanazi’s incapacity persists. For as long as that is the position, the
prescription period will not be completed. That being th e case, there is no need to
engage with the interface between section 13(1) and section 12(3) as was done by the
High Court.
[44] Likewise, I see no point in deciding the question whether the appointment of a
curator ad litem results in the person in respect of whom the appointment is made being
a person under curatorship for purposes of section 13(1)(a). The one protection on
which I rely (mental incapacity which persists to this day) is enough.
Delay
[45] It is close to ten yea rs since the fateful day on which Ms Mkhwanazi sustained
her life-changing injuries. And more than seven years have elapsed since litigation for
the recovery of damages commenced. This is an unacceptably long delay. To make
matters worse, the end is far from being in sight because, from this point, the matter is
going back to the High Court to be litigated on what is still outstanding. At the hearing
in this Court, a colleague lamented the inordinate delay and put the following to
Mr Stockwell, for Shoprite Checkers, and I will paraphrase: surely, in the event that this
Court decides the special plea against Shoprite Checkers, the legal representatives will
cooperate and expedite the just conclusion of the matter. Mr Stockwell responded and
commendably said he was giving that undertaking. The purpose of this brief narrative
on the delay is to say to him it is now time for him to make good on the undertaking,
something which – I have no doubt – must come naturally, in accordance with the best
traditions of the Bar.
MADLANGA J
18
Order
[46] The following order is made:
1. Leave to appeal is granted.
2. The appeal is dismissed with costs.
For the Applicant:
For the Respondent
(Appearing at the request of this Court):
R Stockwell SC instructed by Whalley
and Van der Lith Incorporated
N Rajab -Budlender SC , S Manganye
and N Soekoe
The Respondent’s attorneys being
E P Sefatsa Attorneys