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[1998] ZASCA 86
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Road Accident Fund v Smith NO (555/96) [1998] ZASCA 86; 1999 (1) SA 92 (SCA); [1998] 4 All SA 429 (A) (28 September 1998)
REPUBLIC
OF
SOUTH AFRICA
REPORTABLE
evdw/
Case no: 555/96
IN THE SUPREME COURT OF APPEAL OF
SOUTH AFRICA
In the matter between
ROAD ACCIDENT FUND
Appellant
and
RAPHAEL SMITH NO
Respondent
Coram :
Van Heerden DCJ, Harms, Schutz JJA, Melunsky et
Farlam AJJA
Date of hearing
: 7 September 1998
Date of delivery
: 28 September 1998
JUDGMENT
2 FARLAM AJA
The facts, the relevant statutory provisions and case law and the contentions
of the parties are set out in the judgment of Van Heerden DCJ, which I have had the
advantage of reading. My reasons for respectfully disagreeing with his conclusion
follow.
A convenient starting point is a reference to the dictum of Miller J in Apalamah
v Santam Insurance Co Ltd, 1975(2) SA 229(D) 234 A-B which was
quoted with approval in SA Mutual Fire and General Insurance Co Ltd v Eyberg
1981(4) SA 318(A) 327 D-G. The proposition is that where the two statutes conflict
on the same topic the generality of the Prescription Act must yield to the third party
legislation. In this case the respondent contends that the references to an insane
person in the former and to a person detained under the mental health legislation in
the Agreement, pertain to the same topic. I have difficulty with this equation, as it
seems manifest that, whatever the degree of overlap, not all insane persons are
detained, and not all detained persons are insane. This is not one of the simple cases
such as minority and subjection to curatorship where the same words are used in
3
both enactments and plainly the same topic is addressed.
A reference to the mental health legislation over the years tends to confirm
that insanity and detention are not always to be identified. As far as this country is
concerned the mental health legislation which Parliament must have had in mind
when it enacted Act 69 of 1978 and again Act 93 of 1989 was the Mental Health Act
18 of 1973 (to which I shall hereinafter refer as 'the 1973 Act"). The 1973 Act was enacted by Parliament following on the Report
of the Commission of Inquiry into the
Mental Disorders Act (the Van Wyk Commission) (RP80/1972).
A comparison between the 1973 Act and the main act which it repealed, the
Mental Disorders Act 38 of 1916, makes it clear that the 1973 Act places as much
(if not more) emphasis on the treatment of mentally ill persons as the 1916 Act placed on the compulsory detention of mentally disordered
or defective persons.
Mentally ill persons may be treated under the 1973 Act either in the community or
as voluntary or consent patients who are accommodated in institutions on their own
application or, if they cannot understand the meaning and effect of the application,
without their objection and on the application of spouses or other near relatives.
4
This change in emphasis may be gathered from ss 3 and 5 of the 1973 Act (dealing
with voluntary patients) and Chapter
IV
of the 1916 Act (dealing with voluntary
boarders), s 4 of the 1973 Act (dealing with consent patients, there being no
corresponding provision in the 1916 Act) and the provision now existing for
community care (see regulation 1(1) of the Regulations to the 1973 Act, promulgated
in GN 565 of 27 March 1975).
The change of emphasis is also apparent from a comparison of s 5(4) of the
1916 Act with s 9(3) of the 1973 Act, which, unlike its counterpart in the 1916 Act,
requires a magistrate issuing a reception order to be satisfied that the person to be
detained is "mentally ill
to such a degree that he should be detained as a patient
".
which will normally only be the case if the person concerned will be a danger to
himself or to others if he is not detained (cf A Kruger in
The Law of South Africa
vol 17 paragraph 311). The new approach to the treatment of the mentally ill
implemented in the 1973 Act was recommended by the Van Wyk Commission,
which was presided over by the Hon Mr Justice JT van Wyk: see paragraph 3.8.2
of its Report and also A Kruger,
Mental Health Law in South Africa
, pp 25-28.
5
In the common law the principle was accepted that prescription did not run
against a person under disability during such disability (see President Insurance Co Ltd
v Yu Kwam 1963(3) SA 766(AD) 773 F-G). The policy of the law in this regard
was expressed in the maxim contra non valentem agere non currit praescriptio,
(prescription does not run against one who has no capacity to institute action): see
eg De Groot, Inleiding 3.46.4; Voet 44.3.11; Van Zurck
Codex Batavus
sv
Praescriptie, Verjaring, Verloop van tyd, n.
XIII;
Wessels,
The Law of Contract in
South Africa
. 2
nd
ed, vol 2, para 2764.
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: see s 13(l)(a) and
(i).
If Parliament in enacting the 1989 Act, with the Agreement as a schedule,
which was to have the force of law as if it were an Act of Parliament (see s 2(1) of
the 1989 Act), or before that in enacting the 1978 Act, had intended to deprive
6
persons who had been protected from the running of prescription under the common
law and later were protected under s 13(l)(a) of the Prescription Act of any
protection at all from prescription, I would have expected much clearer language
than the language which was used. Put bluntly the intention attributed to Parliament by the appellant is that an insane person who
has not been detained, will, otherwise
than at common law and under the Prescription Act, be exposed to the full rigours
of prescription. This notwithstanding that Parliament must be taken to have been
aware of the fact that a result of the change of policy regarding mentally ill persons
which it approved when it passed the 1973 Act was that a large number of persons
previously described as insane would not be detained under the mental health
legislation. Such an interpretation as the appellant proposes would in my view be
profoundly unjust. It is one that is to be avoided by the application of the
presumption against unjust legislative intent: see eg Principal Immigration Office v Bhula
1931 AD 323
(at 337). The only reason inspiring Parliament to legislate the
drastic curtailment of rights contended for is suggested by the appellant to be that the
law would become more certain and more easy to administer. This argument seems
7
to me a mere makeweight, quite inadequate to counter-balance the presumption
referred to.
The fact that in 1978 and 1989 Parliament clearly intended to alter the manner
in which prescription was to run in the case of minors and persons subject to
curators (and at least to an extent in the case of insane persons) does not alter my
view. In those cases where there was a change a fair alternative form of prescription
was substituted. But protection against prescription remained. What the appellant
contends for in this case is that substantial numbers of insane persons were to be
stripped of all protection, for the sake of some administrative convenience. Such an
intention requires clear expression.
In my view the approach of Foxcroft J (with whom Conradie J concurred) in
Kotze NO v Santam Insurance Ltd, 1994(1) SA 237 .(C) 246-247, is to be preferred
to that contained in the judgment of Friedman J in Terblanche v South African Eagle Insuran
ce Co Ltd 1983(2) SA 501(N) and that of LC Steyn J in Van Rhyn NO v AA
(Onderlinge Assuransie Assosiasie Bpk, 1986(3) SA 460(0).
I do not think that the problems posed in my learned colleague's judgment as
8
to what the legal position would be if Sibiya were detained under mental health
legislation some time after the collision and was released some years later should
impel one to a conclusion different from that stated above. Persons are detained
under mental health legislation because they are already suffering from mental
illness and the degree of such illness is such that they should be committed to an
institution. Parliament must accordingly have been aware that in all cases where
insane persons are detained under mental health legislation the delayed completion
of prescription enjoyed by such persons under s 13(1) (a) and (i) of the Prescription
Act will be overridden by Article 56 of the Agreement, with consequences
sometimes more favourable to them (because they will have more than a year after
their recovery and discharge to bring their claims) and sometimes less favourable
(because they will have less than a year to bring their claims). But it is reasonably
clear in my view that once Article 56 takes the place of s 13(l)(a) the legal position
set out in the Agreement prevails. However, the exact resolution of these admittedly
untidy problems will have to await resolution on another day. In the meantime there
is an urgent need that Parliament should make quite clear exactly how it wishes that
9
the potential conflicts between the Prescription Act and the third party legislation
should be resolved. This is an old problem that daily affects many people.
Be that as it may, I cannot accept that merely because these conundrums can
arise, Parliament is to be taken to have legislated with the unjust intent contended
for by the appellant.
The appeal is dismissed with costs, such costs to include those occasioned by
the employment of two counsel.
FARLAM AJA
Concur
Schutz JA
Melunsky AJA
Case no: 555/96 IN THE SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
In the appeal of
Road Accident Fund
Appellant
and
R Smith N.O.
Respondent
COURT:
Van Heerden DCJ, Harms, Schutz JJA and Melunsky,
Farlam AJJA
Heard:
7 September 1998
Delivered:
28 September 1998
JUDGMENT
2
VAN HEERDEN DCJ:
On 27 May 1989 Mr VN Sibiya sustained bodily injuries when two
motor vehicles collided in
Soweto
. Some five years later the respondent
was, in terms of an order of court dated 14 June 1994, appointed as
curator
ad
litem
to Sibiya by reason of his mental derangement. Shortly thereafter
the respondent, on behalf of 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"). This
claim was lodged with the Multilateral Motor Vehicle Accidents Fund ("the
Fund") whose rights and obligations subsequently devolved upon the
present appellant under
s 2(2)(a)
of the
Road Accident Fund Act 56 of
1996
.
During September 1995 the respondent instituted action against the
2
VAN HEERDEN DCJ:
On 27 May 1989 Mr VN Sibiya sustained bodily injuries when two
motor vehicles collided in
Soweto
. Some five years later the respondent
was in terms of an order of court dated 14 June 1994, appointed as
curator
ad
litem
to Sibiya by reason of his mental derangement. Shortly thereafter
the respondent, on behalf of 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"). This
claim was lodged with the Multilateral Motor Vehicle Accidents Fund ("the
Fund") whose rights and obligations subsequently devolved upon the
present appellant under
s 2(2)(a)
of the
Road Accident Fund Act 56 of
1996
.
During September 1995 the respondent instituted action against the
3
Fund in the
Witwatersrand
Local Division. On behalf of Sibiya he claimed
damages in respect of the aforesaid injuries. In a special plea the Fund
averred that the claim had become prescribed on 26 May 1991, i.e. two
years after the date of the collision. To this plea the respondent replicated
as follows:
"2.1 By virtue of the provisions of the
Prescription Act No. 68 of
1969
prescription does not run against an insane person or a
person under curatorship and Sibiya is both insane and a
person under curatorship as contemplated in the aforesaid Act;
2.2 Furthermore, Article 56 of the Multilateral Motor Vehicle
Accidents Fund Act provides that prescription shall not run
against a person under curatorship and Sibiya is a person
under curatorship as contemplated."
The replication evoked an exception by the Fund. Its bases were that
Article 56 of the Agreement, which does not provide for suspension of
prescription in respect of a claim of an insane person, regulates the running
4
of prescription under the 1989 Act to the exclusion of the Prescription Act
68 of 1969 ("the
Prescription Act"
;), and that at the time of the respondent's
appointment as
curator ad litem
the claim had already become prescribed.
The matter came before Schabort J who found that because Sibiya was insane the period of prescription prescribed by Article 55 of
the
Agreement had not been completed when action was instituted by the respondent. Consequently he dismissed the exception with costs
but
subsequently granted the Fund leave to appeal to this court. Still later the
Road Accident Fund was substituted as the appellant in the appeal.
It will have been observed that in the replication it was alleged that
"Sibiya is insane" (present tense). At the hearing of the appeal we were
informed, however, that the parties had agreed (i) that Sibiya was in fact
insane from the date of the collision, and (ii) that a judgment on the
5
exception will finally dispose of the issues raised by it.
As adumbrated above, the main issue in the court a
quo
, and also
before us, was whether the running of prescription in respect of Sibiya's claim under the 1989 Act was governed solely by the provision
of Articles
55 and 56 of the Agreement, or whether s 13(1) of the 1969
Prescription
Act also
was applicable. Article 55, as originally enacted, made provision
for a period of prescription of two years "from the date upon which the
claim arose". This Article was not amended until 1 November 1991
(Proclamation 102 of 1991 published in GG 13597 of that date), i.e. more
than two years after the date of the collision.
On appeal it was rightly common cause:
(a) that originally Sibiya's claim lay against an agent appointed
under Article 13 of the Agreement;
6
(b)
that no claim for compensation was lodged prior to June 1994,
and
(c)
that, if the provisions of s 13(1) of the 1969
Prescription Act,
relative to insane persons, did not apply, Sibiya's claim would have become
prescribed on 26 May 1991.
In so far as material for present purposes Article 56 provided:
"Prescription of a claim for compensation ... shall not run against:
(a)
a minor;
(b)
any person detained as a patient in terms of the provisions of
mental health legislation ...
(c)
a person under curatorship."
It is immediately apparent that save where (b) or (c) applied, Article
56 made no provision for the suspension of the running of prescription
against an insane person.
The material provisions of
s 13(1)
of the
Prescription Act read
:
7
"13(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 . .. ; 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)... 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)."
Three observations are apposite. First, unlike Article 56 of the
Agreement,
s 13(1)
of the
Prescription Act does
not provide for a
suspension of prescription properly so called. It does, however, provide for
an extension of the period of prescription. (I shall revert to this at a later
stage). Second, in the case of
inter alia
an insane creditor the completion
8
of prescription is delayed whether or not he is detained in terms of mental
health legislation. Third, if
s 13(1)
governed the running of prescription in
respect of Sibiya's claim, it could not have become prescribed by 26 May
1991.
Before dealing with the precursors of the 1989 Act it is convenient
to draw attention to s 16(1) of the 1969
Prescription Act. Subject
to a
proviso which is not material to this appeal, it provides that:
"(1)
the provisions of this chapter [which includes
s 13]
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."
In parenthesis I should mention that the Agreement is
stricto jure
not
an Act of Parliament. In terms of s 2(1) of the 1989 Act it does, however,
9
have the force of law and falls to be applied as if it were an Act of
Parliament.
Prior to its amendment by Act 69 of 1978, The Compulsory Motor
Vehicle Insurance Act 56 of 1972 ("the 1972 Act") did not provide for
suspension of prescription. Nor did the Motor Vehicle Insurance Act 29 of
1942 ("the 1942 Act"). Subsequent to the amendment, however, s 24(l)(b)
of the 1972 Act contained provisions virtually identical to those of Article
56 of the Agreement. So did s 14(l)(b) of the Motor Vehicle Accidents Act
84 of 1986 ("the 1986 Act").
The question whether the amended s 24(1) of the 1972 Act precluded
the application of common law rules relating to the suspension of
prescription of claims under the 1972 Act, was considered in
Terblanche
v South African Eagle Insurance Co Ltd
1983 (2) SA 501
(N). In that case
10
the court was asked to assume that for an uninterrupted period of 30 days
following upon a collision the plaintiff was
non compos mentis
, and that
this was a condition which, at common law, would suspend the running of
prescription against the creditor concerned. The question for decision was
formulated as follows by Friedman J (at 502 F): "whether the category of
persons referred to in s 24(1)(b) of the MVA Act [the 1972 Act] is
exhaustive of those against whom prescription in terms of the Act does not
run or whether the common law relating to the suspension of prescription
applies to claims for compensation under the MVA Act."
Friedman J decided that the categories of persons mentioned in the
amended s 24(1)(b) of the 1972 Act were exhaustive in the above sense.
The main thrust of his reasoning may be thus summarised:
(1) The amended s 24(1) had about it every appearance of being
11
self-contained and exhaustive in so far as the prescription of
claims for compensation under the 1972 Act was concerned
(at 502 H).
(2)
The listing in the amended s 24(1)(b) of specified persons
against whom prescription would not run afforded an
indication of an intention to exclude all others from such
protection (at 503 E).
(3)
Prior to the amendment of s 24(1) of the 1972 Act there were
clear 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 unamended section and its precursor , s 11
of the 1942 Act. Yet, when it passed the amending Act the
(2)
12
legislature categorised two classes of persons (minors and
persons under curatorship) who in any event enjoyed common
law protection against the running of prescription. The only
reason for doing so was an intention to bring about a change
in the law as previously applied in regard to the prescriptive
provisions of s 11(2) of the 1942 Act and the unamended
s 24(1) of the 1972 Act (at 504 C-H).
In (3) above Friedman J was, of course, directing his mind to the
question whether the amended s 24(1) of the 1972 Act excluded the
application of common law rules relating to suspension of prescription. It
is clear, however, that he was of the view that the amended subsection also
excluded the application of 13(1) of the
Prescription Act.
In
Van Rhyn N.O. v A A Onderlinge Assuransie Assosiasie Bp
k
13
1986 (3) SA 460
(O) 461 I, LC Steyn J expressed agreement with the view
of Friedman J "dat art 24 van Wet 56 van 1972 nou die uitsluitlike kenbron
is ten opsigte van verjaring van else gegrond op daardie Wet." However,
that view was not shared in
Kotze NO v Santam Insurance Ltd
1994(1) SA
237 (C) 246-7. Foxcroft J, in whose judgment Conradie J concurred, held
(at 248E) that since s 14 of the 1986 Act did not specifically deal with
insane persons, it did not preclude the application of
s 13(1)
of the
Prescription Act in
respect of claims of such persons under the former Act.
In
Terblanche
Friedman J made no reference to s 16(1) of the 1969
Prescription Act. It
will be recalled that in terms of that subsection the
provisions of
inter alia
s 13 of the Act shall, save in so far as they are
inconsistent with the provisions of any Act of Parliament which prescribes
a specified period within which an action in respect of a debt is to be
14
instituted, apply to any debt arising after the commencement of the Act.
The subsection therefore calls for what may conveniently be termed a
consistency evaluation. Because he did not make such an evaluation,
Friedman J failed to consider whether the provisions of
s 13(1)
of the
Prescription Act in
respect of e.g. deceased creditors and creditors who are
prevented by superior force from interrupting the running of prescription,
were inconsistent with the provisions of the amended s 24(1) of the 1972
Act. His conclusion that that subsection was intended to be fully
comprehensive on the subject of prescription of claims under the 1972 Act
must therefore be open to doubt.
What has been said above, is to some extent borne out by a finding
in
Standard General Insurance Co Ltd v
Verdun
Estates (Pty) Ltd
1990(2)
SA 693(A) 697. In that case Goldstone AJA considered the question
15
whether the amended s 24(1) of the 1972 Act was a self-contained
provision to the exclusion of the terms of the
Prescription Act. Having
said
that an affirmative answer found some support in a
dictum
in Terblanche
(encapsulated in (3) above), Goldstone AJA, with reference to s 16 of the
1969
Prescription Act, concluded
that the
dictum
was too widely cast.
It follows that in every case in which a plaintiff under the 1989 Act
relies upon a provision of
s 13(1)
of the
Prescription Act, the
cardinal
question is whether that provision is inconsistent with Article 56 of the
Agreement.
Before dealing with the submissions of counsel for the appellant, I
revert to the effect of
s 13(1)
of the
Prescription Act. I
have already said
that, unlike Article 56 of the Agreement,
s 13(1)
does not provide for
suspension of prescription. In respect of claims of each class of creditors
16
mentioned in
s 13(l)(a)
to (h) prescription does run, subject to the proviso
that if the period of prescription would otherwise be completed before, or
on, within one year, after the day on which the impediment has ceased to
exist, that period shall not be completed before a year has elapsed after that
day. Hence, a three year period of prescription does run against a 17 year
old minor but is not completed before the lapse of one year from the day on
which he attains majority. The three year period thus in effect becomes a
five year period. Had
s 13(1)
suspended the running of prescription, the
period of prescription would, of course, have come to an end only when the
erstwhile minor became 24 years of age.
The main submission of counsel for the appellant was that there is an
inconsistency between the provisions of
s 13(1)
of the 1969 Prescription
Act and Article 56 of the agreement; at least as regards the three classes of
17
persons mentioned in that Article. In support of this submission counsel for
the appellant postulated the following examples.
(a)
In terms of s 13(1) a minor may have only one year after
attaining majority before the period of prescription is
completed; under Article 56, however, that period would only
begin to run after he ceases to be a minor.
(b)
Similarly, a person who was under curatorship may be better
off if the completion of the period of prescription is governed
by Article 56 rather than by s 13(1).
(c)
If an insane person is detained under mental health legislation
and Article 56 is applicable, the running of prescription will
be suspended for the full period of his detention. However, if
s 13(1) were to apply, the period of prescription may be
(a)
18
completed one year after he regains sanity.
I have little doubt that there is an inconsistency between the two sets
of provision as far as minors and persons under curatorship are concerned
(cf
Erasmus v Protea Assuransiemaatskappy Bpk
1982 (2) SA 64
(N)). As
regards insane persons, it is, of course, true that they are not specifically
referred to in Article 56. On the other hand, it can safely be assumed that
a substantial number of insane persons are in fact detained under mental
health legislation, and that by far the majority of persons so detained are in
fact insane.
A submission of counsel for the respondent initially appealed to me.
The argument was that since Sibiya was never detained, no inconsistency
between Article 56 and s 13(1), in its application to insane creditors, could
have arisen in
casu
. On further consideration I am of the view, however,
19
that an inconsistency exists if the provisions of s 13(1) are potentially
incompatible with those of Article 56.
Now, assume that Sibiya was detained under mental health
legislation 21 months after the collision; that he was released three years later, and that he regained sanity shortly prior to his
release. If s 13(1)
applied, the period of prescription would have been completed one year
after he regained sanity. If, on the other hand, Article 56 governed the
running of time from the date of Sibiya's detention, the prescriptive period
would have terminated three months after his release.
Consider a further example. Assume that Sibiya was detained four
years after the collision; that he became sane again a month or so later, but
that he remained in detention for another two years. If both s 13(1) and
Article 56 were to apply, how does one determine when the period of
20
prescription will be completed?
In the result I am of the view that there is indeed a potential
inconsistency between the provisions under consideration. In this regard it
is pertinent to bear in mind a
dictum
of Miller J in
Apalamah v Santam
Insurance Co Ltd
1975(2) SA 229 (D) 234 A-B, which was quoted in
SA
Mutual Fire and General Insurance Co Ltd v Eyberg
1981 (4) SA 318
(A)
327 D-G. It reads thus:
"Where the
Prescription Act has
a voice on an aspect relating to
prescription in respect of which the 'other' Act is silent there is not
necessarily inconsistency between the two Acts and the voice of the
Prescription Act must
needs be heeded. But it is a far cry from that
to say that where both Acts deal with the same topic . .. the general
provisions of the
Prescription Act on
that aspect prevail over or
affect the specific provisions of the other Act."
Article 56 is not silent on the running of prescription against an
insane person. If he is detained the Article finds application.
21
The history of Article 56 furthermore affords an indication that the
legislature did not intend article 13(1) of the
Prescription Act to
govern the
running of prescription in respect of insane creditors. As was pointed out
by Friedman J in
Terblanche
(see (3) above), prior to the amendment of s
24(1) of the 1972 Act clear judicial pronouncements were to the effect that
the
Prescription Act, relative
to
inter alia
suspension of prescription,
applied to the prescriptive provisions of the unamended
s 24(1)
and its
precursor. As amended
s 24(1)
(b) - which, as said, is virtually identical
to Article 56 - provided that prescription would not run against a minor, a
detained person and a person under curatorship. At the time of the
amendment the first three distinct categories of creditors mentioned in
s 13(l)(a) of the Prescription Act comprised (i) minors, (ii) insane persons
and (iii) persons under curatorship. Yet, when amending s 24(1) the
22
legislature in para (b) deliberately included only the first and third
categories. In place of the second category it substituted a somewhat
different category, i.e. persons detained under mental health legislation,
who would usually be insane persons. It would therefore appear that the
legislature intended s 24(1)(b) to apply to the exclusion of the provisions
of
s 13(1)
of the
Prescription Act in
relation to claims of at least the above
three categories of creditors.
Adapting the language of Foxcroft J in
Kotze
(at 247 J), the
question may be asked whether Parliament could have intended an insane
person to be in a position where prescription would not run against him
once he was detained, but would run against him prior to his detention. Of
course, should
s 13(1)
of the
Prescription Act be
applicable, prescription
would run against an insane person, whether detained or not. However, as
23
submitted by counsel for the appellant, the more weighty answer is that the
legislature may well have intended to avoid, for the purposes of
enforcement of "third party" claims, a difficult enquiry into the condition
of a man's mind.
I would therefore have allowed the appeal.
HJO VAN HEERDEN
Deputy Chief Justice
Concur:
HARMS JA