Road Accident Fund v Mdeyide (CCT70/06) [2007] ZACC 7; 2007 (7) BCLR 805 (CC); 2008 (1) SA 535 (CC) (4 April 2007)

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[2007] ZACC 7
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Road Accident Fund v Mdeyide (CCT70/06) [2007] ZACC 7; 2007 (7) BCLR 805 (CC); 2008 (1) SA 535 (CC) (4 April 2007)

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CONSTITUTIONAL
COURT OF SOUTH AFRICA
Case CCT
70/06
THE ROAD ACCIDENT
FUND Appellant
versus
VUSUMZI
MDEYIDE Respondent
MINISTER OF
TRANSPORT Intervening Party
Heard on : 27 February
2007
Decided on : 4 April
2007
JUDGMENT
NAVSA AJ:
Introduction
This matter
comes before this Court on several bases. First, on 3 October
2006, the High Court, sitting in East London, declared
section
23(1) of the Road Accident Fund Act 56 of 1996 (the Act) to be
inconsistent with the Constitution and invalid. It referred
the
declaration to this Court for confirmation in terms of section
167(5) of the Constitution.
1
Second, the Road Accident Fund, a statutory insurer established in
terms of the Act and the defendant in the court below, appealed
against the High Court decision in terms of section 172(2)(d) of
the Constitution.
2
Third, Notshe AJ, who issued the declaratory order in the court
below, did so without notice to the Minister of Transport, the
responsible Minister in terms of the Act. As a result, we are
called upon to consider an application by the Minister of Transport
to intervene in this appeal. That application is coupled with an
application for condonation.
On 1 November
2006 the Chief Justice directed the Registrar of this Court to
serve copies of all the necessary documentation in
this matter on
the Minister of Transport and afforded the Minister an opportunity
until 15 November 2006 to file a notice indicating
whether he
wished to intervene. In the event of the Minister intending to do
so, he was to file an affidavit on or before 24
November 2006
setting out the facts, if any, he wished to draw to this Court’s
attention. On 15 November 2006 the State Attorney
wrote to the
Registrar, stating that the Minister was out of the country and
seeking an indulgence until 22 November 2006 to
indicate whether
the Minister intended to intervene. This resulted in amended
directions dated 29 November 2006 which, although
retaining the
time for the notice to intervene as 15 November 2006, provided an
opportunity for the affidavits setting out the
necessary facts to
be filed by 22 December 2006. The affidavits were filed on 6
December 2006. On the same date the Minister
applied to intervene
and simultaneously applied for condonation for the late filing of
the application. Both applications were
heard as part of this
appeal.
On 20 November
2006 the Road Accident Fund applied to this Court for leave to lead
evidence on the constitutional validity of
section 23(1) of the
Act. The application was granted and the Road Accident Fund filed
further evidence on affidavit, as did
the Minister of Transport.
For
convenience I refer to the respondent in this matter, Mr Vusumzi
Mdeyide, as the plaintiff
.
The Road
Accident Fund will be referred to as the RAF and the Minister of
Transport as the Minister
.
As will
become apparent in due course, the central issue in this case is
the plaintiff’s capacity to litigate and manage his
own affairs.
The background is set out hereafter.
Background
Life has not
been kind to the plaintiff. His fortunes did not improve when he
encountered the judicial system for the first time.
He was born on
15 March 1968 and for all practical purposes has been blind since
childhood. He is illiterate, innumerate and
has never been in
gainful employment. On 8 March 1999, the plaintiff, accompanied
and assisted by his wife, was walking on a
road
near East London when he was struck by a motor vehicle and
apparently rendered unconscious. He was transported by ambulance
from
the scene of the collision to the Frere Hospital where he was
admitted and treated until his discharge on 15 March 1999. The

plaintiff has no independent recall of the collision other than the
memory of being struck by a motor vehicle. The duration of
the
plaintiff’s state of consciousness during his stay in hospital
and his cognitive and mental abilities at material times
thereafter
are aspects to which I will return in due course.
On 17
September 1999, approximately six months after his discharge from
hospital, the plaintiff, at his wife’s urging and accompanied
by
her, visited the offices of attorneys Niehaus McMahon and
Oosthuizen to obtain advice and assistance. There he met his

present attorney, Mr Bernardus Niehaus, who consulted with him and
his wife in preparation for submitting a claim for compensation
against the RAF in terms of section 17 of the Act. Statements were
taken from them and a subsequent consultation was contemplated.

The plaintiff’s wife appeared to have made the arrangements for
the first consultation. Until this meeting with Mr Niehaus,
the
plaintiff had never had any dealings with attorneys and had not
known that he had the right to claim compensation for the
injuries
he had sustained in the collision.
It is at this
stage necessary to note that section
17
of the Act provides that the RAF is obliged to compensate any
person for any loss or damage suffered as a result of any bodily
injury caused to him or her by the driving of a motor vehicle by
any other person at any place within the Republic of South Africa,
if the injury was due to the negligence or other wrongful act of
the driver or owner of the vehicle or of the employee of either,
acting in the performance of his or her duties. Section 17 covers
claims where the identity of the driver or owner is known
as well
as claims where the identity of neither the driver nor owner has
been established.
3
In the present case the identity of the driver of the vehicle that
struck the plaintiff is known.
The
plaintiff’s woes continued. Soon after the visit to Mr
Niehaus the plaintiff’s wife deserted him and left for
Cape Town. He has not heard from her since then. Mr Niehaus
struggled
to make contact with the plaintiff who at that time was
living in informal settlements and drifting from place to place.
When
the plaintiff did receive letters from Mr
Niehaus and was able to get someone to read them to him, he
was unable to make contact with the attorney. He has never used a

telephone in his life and is dependent on others for assistance in
travelling from place to place.
Mr
Niehaus managed to secure the plaintiff’s attendance at his
offices on 23 January 2002 for a further consultation. Another
statement was taken and arrangements were made for him to return to
sign an affidavit for submission to the RAF. He failed to
keep the
appointment. On 11 March 2002, more than three years from the date
of the collision, Mr Niehaus decided, despite not
having been able
to contact the plaintiff, to lodge a claim for compensation on the
plaintiff’s behalf. He did so by registered
post, sending the
necessary documentation, to the RAF, including unsigned affidavits
by both the plaintiff and his wife.
In the
accompanying letter Mr Niehaus stated, inter alia, the following:
“
3. It must be understood
that Mr Mdeyide is totally illiterate and because of his blindness,
he has no perception of date and time.
Although a MMF1 claim form
was signed at a time when we took instructions, it has not been
possible to attend to the other formal
requirements such as
affidavits because of the reasons set out above.
4. We however believe that it
is in our client’s interest that we lodge the claim, although
the
three year period
has prescribed within which to do so.
5. We believe that this will be
the perfect case wherein we are to seek an application for
condonation. It would appear that this
is not a very serious
injury, but certainly one [for] which client is entitled to
reasonable compensation.
6. It will be appreciated if
you could advise whether you will be prepared to entertain our
client’s claim and to offer an amount
in settlement or whether we
should proceed to court to bring a formal application for
condonation.” (Emphasis added.)
The
reference to a three-year period necessitates a consideration of the
provisions of section 23(1) of the Act.
Section 23(1),
which is of importance in this case, provides:
“
Notwithstanding anything to
the contrary in any law contained, but subject to subsections (2)
and (3), the right to claim compensation
under section 17 from the
Fund or an agent in respect of loss or damage arising from the
driving of a motor vehicle in the case
where the identity of either
the driver or the owner thereof has been established, shall become
prescribed upon the expiry of a
period of three years from the date
upon which the cause of action arose.”
Subsection
(2) provides that prescription shall not run against minors, persons
detained as patients in terms of mental health legislation
and
persons under curatorship. Subsection (3) provides that once a
claim has been lodged in terms of the relatively informal procedure
provided for in section 24 of the Act, namely by delivering the
prescribed documentation to the RAF by hand or sending it by
registered
post, a claimant gains an additional two years before the
claim finally prescribes. Put differently, a claimant who lodges a
section
17 claim with the RAF in terms of the procedure prescribed
by section
24 before the expiry of
three years from the date on which the cause of action arose,
effectively has a total period of five years
from the date on which
the cause of action arose within which to institute an action for
compensation against the RAF.
Mr Niehaus has
not explained why he did not submit the plaintiff’s claim within
the three-year period – it was submitted three
years and three
days after the date of the collision. After all,
Mr Niehaus had no more information at the time he sent the
letter to the RAF than he had immediately before the termination of

the three-year prescription period. There is nothing to suggest
that Mr Niehaus could not have submitted the claim timeously.
On 3 February
2003 the RAF wrote to Mr Niehaus stating that the plaintiff’s
claim had prescribed but that it was willing to
entertain the claim
provided that an application for condonation was made. On 19
December 2003, after a further exchange of
correspondence, Mr
Niehaus himself wrote to the RAF stating that he had realised that
the Act made no provision for condonation.
He pointed out that, by
contrast, prior legislation governing road accident claims had made
such provision.
4
It is clear from the letter by Mr Niehaus that he was referring to
an application to court for condonation for the late lodging
of the
plaintiff’s claim for compensation.
Proceedings
in the High Court
The
plaintiff’s action for damages flowing from the injuries
sustained in the collision was instituted on 27 February 2004.
The
plaintiff claimed an amount of R250 000 comprising medical expenses
and general damages. It is apparent that the earlier
view
concerning the seriousness of his injuries – as stated in
Mr Niehaus’s letter of 11 March 2002 – had changed. The
particulars of claim alleged, inter alia, that the plaintiff
sustained
a fracture of the base of the skull and a head injury
that resulted in a lowered Glasgow Coma score.
In response to
the plaintiff’s claim, the RAF raised prescription in terms of
section 23(1) of the Act as a defence and pleaded
over. In
response the plaintiff pleaded that he had no concept of time and
space and that his personal circumstances, as set
out above, were
relevant because
they enabled him to
rely on
section 12(3)
of the
Prescription Act 68 of 1969
. This
section provides that:
“
A debt which does not arise
from contract 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.”
On
a plain reading,
section 12(3)
of the
Prescription Act appears
less
rigid than section 23(1) of the Act. It enables a person, in
appropriate circumstances, to claim that prescription has not
commenced running until a particular date because, prior to this
date, he or she did not have knowledge of the identity of the
debtor, or of the facts from which the debt arose, or could not have
acquired it by the exercise of reasonable care.
The matter
came to trial and the parties agreed that Notshe AJ should, in
terms of Uniform Rule 33(4),
5
adjudicate the prescription issue separately. The learned judge
made the necessary order and proceeded to hear evidence on this
aspect. Only two witnesses testified, namely the plaintiff and Mr
Niehaus. A substantial part of the background sketched above
is
gleaned from Mr Niehaus’s evidence. A few facts were obtained
from the plaintiff’s evidence. Other relevant parts of
the
evidence are recorded later.
It is
necessary to examine specific parts of the plaintiff’s evidence.
The plaintiff was unable to supply his date of birth.
He gave
differing dates in rapid succession. His reason for this was the
following: “The thing that is my problem is because
since I
bumped against that car now I am affected in my mind.” It became
clear very early in his testimony that the plaintiff
had no concept
of time and space. He was unable to tell the length of a week or a
month and was unaware of how long had passed
since his wife had
deserted him.
When asked
about his condition during his stay in hospital, the plaintiff
replied that he had been unconscious. He was unable
to say for how
long. The plaintiff’s evidence-in-chief was extremely brief –
it comprises just under seven pages of the
record. This was
probably due to the difficulty counsel was experiencing in
extracting information from him. Mr Niehaus testified
that he had
experienced great difficulty in obtaining information from the
plaintiff when he consulted with him in preparation
for submitting
a claim in terms of section 17 of the Act.
When the
plaintiff testified an important part of his hospital records
indicating that he was in a state of confusion was mentioned
in
passing. Notshe AJ intervened and attempted to explore whether the
plaintiff had been comatose for the greater part of
his stay in hospital. Both the court’s inquiry and the
interventions by counsel on this aspect were ineffectual.
Another
important part of the plaintiff’s hospital records, dated 18
March 1999, not explored during oral testimony reads as
follows:
“Head injury MVA re-admission with alleged confusion, brought
back by relatives.”
During his
stay in hospital the plaintiff’s wife visited him daily. She
spoke to him about visiting an “office” but did
not specify
which office. She told him that, prior to the visit to the office
they had to obtain some or other document from
the police station.
She also told him that he would get “something” from the office
but he did not understand what this
meant.
After hearing
the evidence and submissions by the parties, Notshe AJ reserved
judgment. Some time thereafter he asked the parties
to submit
argument
regarding the following:
“
12.1 whether the obligation
imposed by s.39(2) of the Constitution entitles me to consider,
mero
motu
, the question of whether the provisions of s.23(1) of the
Road Accident Fund Act, 1996 (Act no.56 of 1996) are consistent with

the Constitution; and,
12.2 what course of action to
be taken if I find that they are inconsistent with the
Constitution.”
Notshe
AJ directed that the Department of Justice and Constitutional
Development be given notice of his request and stated that
it could,
if it so wished, apply to join the proceedings. The Department did
not take up this invitation. The parties presented
written and oral
submissions.
The following
three issues, relevant for present purposes, were identified by
Notshe AJ for deliberation and decision:
whether
section 12(3)
of the
Prescription Act was
applicable;
whether the plaintiff’s claim had prescribed; and
whether section 23(1) of the Act is inconsistent with the
Constitution.
Notshe AJ
considered the applicability of
section 12(3)
of the
Prescription
Act. He
had regard to the introductory part of
section 23(1) of the Act, and concluded that it was clear
that it was not subordinate to any other statutory provision. He
considered
the scheme of the
Prescription Act and
, in particular,
section 10
of that Act which provides:
“
(1) Subject to the
provisions of this Chapter and of Chapter IV, a debt shall be
extinguished by prescription after the lapse of
the period which in
terms of the relevant law applies in respect of the prescription of
such debt.”
He
also referred to
section 11(d)
of the
Prescription Act in
terms of
which that Act applies where there is no law applicable in relation
to the prescription of a particular debt. He reasoned
that, since
section 23(1) of the Act did cater for the debt in question, that
section applied to the exclusion of
section 12(3)
of the
Prescription Act. He
thus concluded that the plaintiff’s claim
had indeed prescribed in terms of
section 23(1).
Notshe AJ then
examined section 23(1) of the Act against the background of section
39(2) of the Constitution which provides that,
in 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. He held that
section 23(1) limited the right of access to courts by
claimants. Whilst he acknowledged that rules limiting the time
during
which claims may be lodged or litigation instituted are a
universal phenomenon, the problem with section 23(1) was that it is

a complete bar, irrespective of how worthy, unusual or exceptional
particular circumstances might be, or that a claimant may in
a
particular instance have been unaware of the basis of the claim or
the identity of the debtor. He found it offensive that
section
23(1) did not take into account the ignorance of the law and
illiteracy of the majority of citizens in South Africa.
After
comparing it to a number of other statutory provisions that
permitted condonation for late claims,
6
the court below concluded that the limitation of the right of
access to court imposed by section 23(1) was not reasonable and
justifiable in a democratic society based on human dignity,
equality and freedom. Notshe AJ declined to read into section

23(1) words that would align it with provisions such as those of
section 12(3)
of the
Prescription Act and
thus render it compatible
with constitutional values.
In the result,
the court below made the following order:
“
1. Section 23(1) of the RAF
Act, in so far as it does not make provision for the knowledge of
the debtor and of the facts from which
the debt arises, infringes
upon the rights of the plaintiff of access to Courts as enshrined in
the Constitution and is declared
inconsistent with the Constitution;
2. The defendant’s special
plea is dismissed;
3. The order made in paragraph
1 shall come into effect from the date of this order and shall have
no effect on judgments that have
already been made;
4. The defendant is directed to
pay the costs of the plaintiff; and
5. The matter is referred to
the Constitutional Court for the confirmation of the order of
invalidity.”
The
Minister’s application to intervene
Uniform Rule
10A
7
and Rule 5(1) of this Court
8
both require anybody who challenges the constitutional validity of
an Act of Parliament to join the responsible executive authority
as
a party to the proceedings. In
Van der Merwe v Road Accident
Fund and Another
(
Women’s Legal Centre Trust as
Amicus
Curiae)
9
the following appears:
“
On a number of occasions
this Court has emphasised that when the constitutional validity of
an Act of Parliament is impugned the
Minister responsible for its
administration must be a party to the proceedings inasmuch as his or
her views and evidence tendered
ought to be heard and considered.
Rudimentary fairness in litigation dictates so. There is another
important reason. When the
constitutional validity of legislation
is in issue, considerations of public interest and of separation of
powers surface. Ordinarily
courts should not pronounce on the
validity of impugned legislation without the benefit of hearing the
State organ concerned on
the purpose pursued by the legislation, its
legitimacy, the factual context, the impact of its application, and
the justification,
if any, for limiting an entrenched right. The
views of the State organ concerned are also important when
considering whether,
and on what conditions, to suspend any
declaration of invalidity.” (Footnote omitted.)
The High Court
overlooked Uniform Rule
10A when it
decided that it had a duty, in terms of section 39(2) of the
Constitution, to consider the constitutional validity
of section
23(1) of the Act. It failed to heed decisions of this Court which
explained why it was important that the relevant
authorities be
provided an opportunity to be heard when legislation in respect of
which they bear responsibility is challenged.
10
The Minister
undoubtedly has a right to be heard in matters such as the present.
However, as stated earlier, his application
for intervention was
made after the date provided for in the directions by the Chief
Justice and he consequently applied for
condonation. A senior
official in the Department of Transport, in seeking condonation on
behalf of the Minister explained that
when the directions were
served, the Minister was in Ireland on State business. The
Minister could only acquaint himself with
the details of this case
and take legal advice after his
return
to South Africa on 18 November 2006, three days after the deadline
set by the Chief Justice’s directions. The explanation
is
satisfactory and it is in the interests of justice that the
condonation application and the application for leave to intervene
be granted.
Evidence
on behalf of the Minister and the RAF
The Minister
and the RAF made common cause. The following is a summary of what
was contained in the affidavits filed on their
behalf. The
laudable purposes of statutory prescription periods, recognised by
courts on numerous occasions, were set out.
There would otherwise
be inordinate delays in litigation which would impact negatively on
the administration of justice. Such
delays would make it difficult
to adjudicate matters as witnesses and documentary evidence might
have disappeared.
11
In the case of the RAF, because it is unaware of the events giving
rise to claims, it is unlikely to be in a position to assess
properly its potential future liability, making financial planning
impossible. It has a present deficit of R18,37 billion including
a
provision for R21,35 billion in outstanding claims. Without the
relative certainty of time-bound claims ensured by section
23(1),
the RAF’s already strained financial and human resources would be
stretched even further by having to investigate old
claims. The
RAF submitted that, in the event of this Court confirming the
declaration of invalidity, it should not do so immediately
and
should allow a time for accumulation of proper data to enable it to
engage more accurately in future financial planning.
The
issues
The RAF
contended, at the outset, that it had been wholly unnecessary for
the High Court to have embarked on an inquiry into the
constitutionality of section 23(1) of the Act. It submitted that
Notshe AJ had failed to realise that the plaintiff was someone
who
was unable to manage his own affairs and, as such, could have
relied on the provisions of
section 13(1)(a)
of the
Prescription
Act. This
section reads as follows:
“
(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)
; or
. . .
(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
).”
According to
the RAF,
section 13
of the
Prescription Act, similarly
to the
common law,
12
protects persons under disability from the consequences of the
running of prescription, by delaying its completion until at least
a year had elapsed after the disability in question had ceased to
exist. The term “insane person” in
section 13(1)(a)
of the
Prescription Act is
not restricted to someone who is detained as a
patient in terms of mental health legislation (as contemplated in
the exceptions
to prescription in terms of section 23(2) of the
Act) and includes persons of unsound mind, who are incapable of
managing their
own affairs and who have no capacity to institute
action.
13
Section 16
of
the
Prescription Act provides
that the prescription of all debts is
covered by the provisions of the
Prescription Act save
insofar as
they are inconsistent with the provisions of any Act of Parliament
dealing with time periods within which a claim
is to be made or an
action is to be instituted.
Section 13(1)(a)
of the
Prescription
Act and
section 23(1) of the Act, so it was contended by the RAF,
do not deal with identical subject matter. There is therefore no
conflict
between their respective provisions and the former is
therefore not excluded by the latter.
There is of
course support for this view in
Smith
.
14
As pointed out on behalf of the RAF, the Supreme Court of Appeal
has on a number of occasions resorted to the construction contended
for in the preceding paragraphs to ameliorate the apparently harsh
provisions of the Act and the similar provisions of the legislation
preceding it.
15
The
plaintiff’s capacity
The
fundamental problem in the present case was the lack of proper
inquiry into the plaintiff’s capacity before and during the
trial, with the resultant paucity of information on which this
Court has been called upon to determine the rights of the parties.

The plaintiff’s attorney and the court below both failed to
address the question of the plaintiff’s capacity.
On Mr
Niehaus’s own evidence, it was very difficult during
consultations with the plaintiff to extract information and obtain
instructions. This ought to have sounded the first alarm bells
about the plaintiff’s capacity to litigate. From the time
that
Mr Niehaus obtained the plaintiff’s medical records he ought to
have been even more concerned about the plaintiff’s
mental
capacity and his ability to manage his own affairs. The
plaintiff’s conduct in court and the documentary evidence ought
to have suggested to all the protagonists that something was badly
amiss.
If at the time
of the trial the plaintiff had indeed been of unsound mind, he
would, without the assistance of a curator ad litem,
have lacked
locus standi with the possible consequence that the entire
proceedings in the trial court might be rendered void.
It would
also call into question his instructions to Mr Niehaus. In
Kotze
NO v Santam Insurance Ltd
,
16
a curator subsequently appointed persuaded the High Court to permit
him to ratify such steps as had already been taken. The
present
case might well, if the course set out later is followed, in the
end be similarly decided.
If the
plaintiff does not have the capacity to litigate, the law requires
the assistance of a curator ad litem. In a useful discussion
of
instances where the appointment of a curator is called for, and of
how proceedings in terms of Uniform Rule 57 should be initiated,
it
is pointed out that:
“
If it is suspected that a
person is of unsound mind and as such incapable of managing his
affairs, proceedings can be instituted
for a declaration by the
court to that effect and for the appointment of curators to his
person and his property.”
17
It
is clear that, the very least that was called for in the court
below, was an inquiry in terms of Uniform Rule 57.
18
If, after the
collision, the plaintiff had in fact been of unsound mind and in
need of a curator ad litem and/or a curator bonis,
and if one had
been appointed before the termination of the three-year period, he
would have been entitled to the protection
afforded by the
exception in section 23(2). Without having had a curator
appointed, the plaintiff might nevertheless, on the
construction
contended for by the RAF, be able to seek the protection of
section
13(1)(a)
of the
Prescription Act.
If
the
plaintiff had been unconscious for the greater part of his stay in
hospital, that fact might have impacted on the commencement
of
prescription in relation to both the provisions of
section 13(1)(a)
of the
Prescription Act and
section 23(1) of the Act, on the basis
of the doctrine that the law does not require one to do the
impossible.
19
That aspect too was inadequately explored.
Loath though
one may be to prolong the plaintiff’s agony by subjecting him to
further processes to determine his capacity, in
my view, it is
inevitable that this must be done. Counsel for the RAF did
indicate that, if an inquiry as envisaged determined
conclusively
that the plaintiff was incapacitated as contemplated by section
13(1)(a), the RAF might be prevailed upon to settle
the matter.
The answers to
the questions posed in the preceding paragraphs are essential to
determine the plaintiff’s rights and the further
conduct of the
proceedings.
In light of
the above, regrettably, it is necessary to set aside the order of
the High Court in its entirety and remit the matter.
It is open to
an appellate court, in appropriate circumstances, to remit a matter
for evidence to be obtained on matters that
have been left obscure
on the record.
20
The High Court might consider whether to call on the Bar to assist
pro amico in the inquiry into the plaintiff’s capacity.
The
plaintiff is presently assisted by his sister who might be the
ideal person to apply to court in terms of Uniform Rule 57
for the
appointment of a curator ad litem.
Counsel for
the plaintiff appeared in this Court at the instance of the Legal
Aid Board. It is hoped that assistance by the Board
will continue
so as not to further prejudice the plaintiff. The unhappy path
that this litigation has taken should be a salutary
reminder to
courts and practitioners that they should be sensitive to the needs
and circumstances of someone as vulnerable as
the plaintiff.
It is to be
hoped that remitting the matter will result in all the issues
between the parties being properly and fully ventilated.
In this
regard, in the event of the trial continuing, the parties might
have to apply to amend their pleadings. If necessary,
the Minister
and the RAF will have an opportunity to present to the trial court
such evidence as best advances their interests.
The
deliberation and adjudication of the constitutionality of section
23(1) in the High Court was, for the reasons set out above,
premature. For that reason the order of constitutional invalidity
cannot be confirmed.
After the inquiry in terms
of Uniform Rule 57 and after hearing the parties on all the issues,
the court below might nevertheless
be minded to reinstate its
order. In that event a referral to this Court in terms of section
167(5) of the Constitution would
follow. The Minister and the RAF
would then be entitled to appeal the order of the High Court. In
the event of the court below
establishing that at material times
the plaintiff was of sound mind and thereafter reinstating its
original order the RAF may
re-enrol the matter in this Court for a
decision on the merits.
Costs
In all of the
circumstances of the case the best course to follow, in my view, is
to make no order as to costs.
The
order
The following
order is made:
The Minister’s application for condonation and for leave to
intervene is granted.
The High Court’s order of constitutional invalidity is not
confirmed.
The appeal by the RAF succeeds only to the extent set out
hereafter. The entire order of the High Court is set aside and the
matter is remitted to the High Court for an inquiry in terms of
Uniform Rule 57 and, if necessary, for the further conduct of
proceedings.
In
the event of the court below establishing that at material times
the plaintiff was of sound mind and thereafter reinstating
its
original order the RAF may re-enrol the matter in this Court for a
decision on the merits.
No order is made as to costs.
Moseneke DCJ, Madala J, Mokgoro J, Ngcobo J, Nkabinde J, O’Regan
J, Sachs J, Skweyiya J and Van der Westhuizen J concur in the
judgment of Navsa AJ.
For the Applicant: Advocate W Trengove SC and Advocate S Budlender
instructed by Hart & Beyers
For the Respondent: Advocate V Soni SC and Advocate SSW Louw
instructed by Niehaus McMahon & Oosthuizen.
For the Intervening Party Advocate W Trengrove SC and Advocate S
Budlender instructed by The State Attorney.
1
Section 167(5) of the Constitution provides:
“
The Constitutional Court makes the final decision
whether an Act of Parliament, a provincial Act or conduct of the
President is
constitutional, and must confirm any order of
invalidity made by the Supreme Court of Appeal, a High Court, or a
court of similar
status, before that order has any force.”
2
Section 172(2)(d) of the Constitution provides:
“Any person or organ of State with a sufficient interest may
appeal, or apply,
directly to the Constitutional Court to confirm or
vary an order of constitutional invalidity by a court in terms of
this subsection.”
3
Section 17(1)
of the
Road Accident
Fund Act provides
:
“
The Fund or agent shall –
(a)
subject to this Act, in
the case of a claim for compensation under this section arising from
the driving of a motor vehicle where
the identity of the owner or
the driver thereof has been established;
(b)
subject to any regulation
made under section 26, in the case of a claim for compensation under
this section arising from the driving
of a motor vehicle where the
identity of neither the owner nor the driver thereof has been
established,
be obliged to compensate any person
(the third party) for any loss or damage which the third party has
suffered as a result of any
bodily injury to himself or herself or
the death of or any bodily injury to any other person, caused by or
arising from the driving
of a motor vehicle by any person at any
place within the Republic, if the injury or death is due to the
negligence or other wrongful
act of the driver or of the owner of
the motor vehicle or of his or her employee in the performance of
the employee’s duties
as employee.”
4
Mr
Niehaus was apparently referring to
sections 14(3) and (4) of the Motor Vehicle Accidents Act 84 of
1986.
5
Uniform Rule 33(4) provides:
“
If, in any pending action, it
appears to the court
mero motu
that there is a question of
law or fact which may conveniently be decided either before any
evidence is led or separately from
any other question, the court may
make an order directing the disposal of such question in such manner
as it may deem fit and may
order that all further proceedings be
stayed until such question has been disposed of, and the court shall
on the application of
any party make such order unless it appears
that the questions cannot conveniently be decided separately.”
6
The following statutory provisions were referred to:
sections
3(4)(a)
and (b) of the
Institution of Legal Proceedings Against
Certain Organs of State Act 40 of 2002
;
section
130(5)
of the
Correctional Services Act 111 of 1998
(now repealed by
section 2(1)
of Act 40 of 2002);
section 57(5)
of the
South African
Police Service Act 68 of 1995
(now repealed by
section 2(1)
of Act
40 of 2002); section 39(3) of the Public Service Act of 1994
(Proclamation 103 of 1994, the section is now repealed by section
2(1) of Act 40 of 2002); section 344(3) of
the
Merchant
Shipping Act 57 of 1951.
7
Uniform Rule 10A provides:
“
If
in any proceedings before the court, the constitutional validity of
a law is challenged, the party challenging the validity of
the law
shall join the provincial or national executive authorities
responsible for the administration of the law in the proceedings.”
8
Constitutional Court Rule 5(1) provides:
“
In
any matter, including any appeal, where there is a dispute over the
constitutionality of any executive or administrative act
or conduct
or threatened executive or administrative act or conduct, or in any
inquiry into the constitutionality of any law, including
any Act of
Parliament or that of a provincial legislature, and the authority
responsible for the executive or administrative act
or conduct or
the threatening thereof or for the administration of any such law is
not cited as a party to the case, the party
challenging the
constitutionality of such act or conduct or law shall, within five
days of lodging with the Registrar a document
in which such
contention is raised for the first time in the proceedings before
the Court, take steps to join the authority concerned
as a party to
the proceedings.”
9
[2006] ZACC 4
;
2006 (4) SA 230
(CC);
2006 (6) BCLR 682
(CC) at
para 7.
10
See
Id
at para 7;
Ex parte Omar
2006 (2) SA
284
(CC);
2003 (10) BCLR 1087
(CC) at para 5;
Mabaso v Law
Society, Northern Provinces, and Another
[2004] ZACC 8
;
2005 (2) SA 117
(CC);
2005 (2) BCLR 129
(CC) at paras 13-14;
Phillips and Another v
Director of Public Prosecutions, Witwatersrand Local Division,
and Others
[2003] ZACC 1
;
2003 (3) SA 345
(CC);
2003 (4) BCLR 357
(CC) at
para 11;
Dawood and Another v Minister of Home Affairs and
Others, Shalabi and Another v Minister of Home Affairs and Others,
Thomas and
Another v Minister of Home Affairs and Others
[2000] ZACC 8
;
2000
(3) SA 936
(CC);
2000 (8) BCLR 837
(CC) at paras 15-17;
Beinash
and Another v Ernst & Young
and Others
1999 (2) SA
116
(CC);
1999 (2) BCLR 125
(CC) at para 27;
Jooste v Score
Supermarket Trading (Pty) Ltd
(
Minister of Labour
Intervening
)
1999 (2) SA 1
(CC) at paras 7-9
[1998] ZACC 18
; ;
1999 (2) BCLR 139
(CC) at paras 6-8;
Parbhoo and Others v Getz NO and Another
1997
(4) SA 1095
(CC);
1997 (10) BCLR 1337
(CC) at para 5.
11
See for example
Potgieter v Lid van die
Uitvoerende Raad: Gesondheid, Provinsiale Regering, Gauteng en
Andere
2001 (11) BCLR 1175
(CC) at para 6;
Mohlomi v Minister
of Defence
[1996] ZACC 20
;
1997 (1) SA 124
(CC);
1996 (12) BCLR 1559
(CC) at
paras 11-12.
12
President Insurance Co. Ltd v Yu Kwam
1963
(3) SA 766
(A) at 773F-G.
13
Road Accident Fund v Smith NO
1999 (1) SA 92
(SCA) at
100J-102B.
14
Id at 102B-I.
15
Moloi and Others v Road Accident Fund
[2000] ZASCA 144
;
2001
(3) SA 546
(SCA) at 552-3;
Road Accident Fund v Mothupi
2000
(4) SA 38
(SCA) at para 32;
Standard General Insurance Co Ltd v
Verdun Estates (Pty) Ltd and Another
[1990] ZASCA 27
;
1990 (2) SA 693
(A) at
697-8;
SA Mutual Fire & General Insurance Co Ltd v Eyberg
1981 (4) SA 318
(A) at 327B-328C;
Santam Versekeringsmaatskappy
Bpk v Roux
1978 (2) SA 856
(A) at 863G;
Yu Kwam
above n
12 at 777D-E.
16
1994 (1) SA 237
(C) at 248F-J.
17
Van Winsen et al
The Civil Practice of the Supreme Court of South
Africa
4
ed (Juta & Co, Ltd, Kenwyn 1997) 1126.
18
Rule 57(1) reads as follows:
“
Any person desirous of making application to the
court for an order declaring another person (hereinafter referred to
as ‘the
patient’) to be of unsound mind and as such incapable of
managing his affairs, and appointing a curator to the person or
property
of such patient shall in the first instance apply to the
court for the appointment of a curator
ad litem
to such
patient.”
The remainder of
the rule sets out how an application is to be substantiated,
requiring, inter alia, affidavits by two medical practitioners
who
have conducted recent examinations of the patient with a view to
ascertaining and reporting on his medical condition.
19
Montsisi v Minister van Polisie
1984 (1)
SA 619
(A).
20
See Van Winsen et al above n 17 at 909.