Road Accident Fund and Another v Mdeyide (CCT 10/10) [2010] ZACC 18; 2011 (1) BCLR 1 (CC) ; 2011 (2) SA 26 (CC) (30 September 2010)

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[2010] ZACC 18
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Road Accident Fund and Another v Mdeyide (CCT 10/10) [2010] ZACC 18; 2011 (1) BCLR 1 (CC) ; 2011 (2) SA 26 (CC) (30 September 2010)

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CONSTITUTIONAL COURT OF SOUTH
AFRICA
Case CCT 10/10
[2010] ZACC 18
In the
matter between:
ROAD ACCIDENT FUND
…......................................................................
First
Applicant
MINISTER
FOR TRANSPORT
…..........................................................
Second
Applicant
and
VUSUMZI MDEYIDE
…..................................................................................
Respondent
Heard on
: 11 May 2010
Decided
on : 30 September 2010
JUDGMENT
VAN DER WESTHUIZEN J:
Introduction
The fundamental right of access to courts is essential for
constitutional democracy under the rule of law.
1
In order to enforce one’s rights under the Constitution,
legislation and the common law everyone must be able to have
a
dispute that can be resolved by the application of law, decided by
a court. The right of access to courts is thus protected
in the
Constitution.
2
In
the interests of social certainty and the quality of adjudication,
it is important though that legal disputes be finalised
timeously.
The realities of time and human fallibility require that disputes
be brought before a court as soon as reasonably
possible. Claims
thus lapse, or prescribe, after a certain period of time. If a
claim is not instituted within a fixed time,
a litigant may be
barred from having a dispute decided by a court. This has been
recognised in our legal system – and
others – for
centuries.
At
present prescription is provided for by the Prescription Act
3
in general and by other Acts of Parliament regulating specific
areas. One of these is the Road Accident Fund Act
4
(RAF Act), a statute that provides for the establishment of the
Road Accident Fund (RAF or Fund) and for compensation of victims
of
motor vehicle accidents.
This
matter requires the balancing of the right of access to courts and
the need for the fair and manageable prescription of
claims. It
poses the question whether a provision of the RAF Act
5
violates the right of access to courts and is thus
unconstitutional, because it determines that claims against the RAF
prescribe
if not instituted within three years from the date the
cause of action arose, even if the claimant does not know of the
existence
of the RAF. This question has to be answered against the
background of South Africa’s socio-economic conditions,
including
a very significant degree of poverty and illiteracy, as
well as the necessity of effective management of public finances
earmarked
for the compensation of people who need it for the
restoration of some quality of life and human dignity.
Constitutional
and legal framework
It
is convenient to first set out the applicable constitutional and
legal framework and to look into the meaning of some of
the core
concepts of prescription that are central to this matter.
Thereafter the facts of this case, its litigation history
and the
submissions presented to this Court will be summarised, before the
questions posed are dealt with and a conclusion
is reached.
Section
34 of the Constitution enshrines the right of access to courts and
states that “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.”
6
The Constitution also recognises the values of human dignity and
the advancement of human rights and requires the state to
respect,
protect, promote and fulfil the rights recognised in it.
7
Rules
of prescription – providing that claims become extinct after
a period of time – are common in our legal system
and apply
to all civil claims. The Prescription Act and other Acts of
Parliament, including the RAF Act, provide for specific
periods in
respect of claims brought in terms of those Acts. The origin of
rules of prescription in our legal system dates
back to Roman
times.
8
Under the common law the prescription period was generally 30
years.
9
These rules were codified in the Prescription Act 18 of 1943, which
was replaced by the current Prescription Act 68 of 1969

(Prescription Act).
This
Court has repeatedly emphasised the vital role time limits play in
bringing certainty and stability to social and legal
affairs and
maintaining the quality of adjudication. Without prescription
periods, legal disputes would have the potential
to be drawn out
for indefinite periods of time bringing about prolonged uncertainty
to the parties to the dispute. The quality
of adjudication by
courts is likely to suffer as time passes, because evidence may
have become lost, witnesses may no longer
be available to testify,
or their recollection of events may have faded.
10
The quality of adjudication is central to the rule of law. For the
law to be respected, decisions of courts must be given as
soon as
possible after the events giving rise to disputes and must follow
from sound reasoning, based on the best available
evidence.
The
precise manner in which prescription functions is determined
through the application of a number of concepts. Some regulate
the
scope of a particular prescription clause. The manner in which
prescription begins to run may furthermore be determined
in a
number of ways, usually with reference to the scope of the
prescription clause.
The
Prescription Act deals
with prescription in general. In terms of
section 10
a debt is extinguished by prescription after the lapse
of the period which applies in respect of the prescription of the
debt.
11
A claim is thus after a certain period of time no longer actionable
and justiciable. It is a deadline which, if not met, could
deny a
plaintiff access to a court in respect of the specific claim.
Generally
under the
Prescription Act, prescription
applies to a debt. For the
purposes of this Act, the term
debt
has been given a broad
meaning to refer to an obligation to do something, be it payment or
delivery of goods or to abstain
from doing something.
12
Although it may on occasion be doubtful whether an obligation is
indeed a debt in terms of the Act,
13
there is no doubt that a claim under the RAF Act constitutes a
debt. However, the RAF Act regulates the prescription of claims

under it and some of the differences between the two statutes have
been placed at the core of this matter.
The
period of prescription is important.
Section 11
of the
Prescription
Act provides
for generic prescription periods. Generally, the
prescription period is three years.
14
Section 23(1) of the RAF Act provides for the same period in regard
to claims against the RAF.
15
When
does prescription begin to run? This question is central to the
present enquiry. Section 12(1) of the
Prescription Act stipulates
that it begins as soon as the debt is due. A
debt is due
when it is “immediately claimable or recoverable”.
16
In practice this will often coincide with the date upon which the
debt arose, although this is not necessarily always so. In
terms of
section 12(3)
of the same Act, a debt is deemed to be due when a
creditor has knowledge of the identity of the debtor and of the
facts from
which the debt arises. A creditor is deemed to have the
required knowledge if she or he could have acquired it by
exercising
reasonable care.
17
Furthermore, section 13 provides for circumstances in which the
completion of prescription is delayed, for example, when the

creditor is a minor, insane, or outside the Republic, or in certain
other circumstances.
18
The RAF Act differs from the
Prescription Act on
the starting point
of the prescription period.
Section 23(1)
provides for prescription
of claims in terms of
section 17
19
of the Act:
“
(1)
Notwithstanding anything to the contrary in any law contained, but
subject to subsections (2) and (3), the right to claim
compensation
under section 17 from the Fund or an agent in respect of loss or
damage arising from the driving of a motor vehicle
in the case where
the identity of either the driver or the owner thereof has been
established, shall become prescribed upon the
expiry of a period of
three years from the date upon which the cause of action arose.”
The
scope of section 23 is thus defined in terms of claims under the
RAF Act and not under the general rubric of
debt
. Section
23(1) of the RAF Act establishes a prescription period limited to
claims section 17 against 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.
From
the wording of sections 17 and 23(1) it appears that two situations
are envisaged by the RAF Act, namely when the identity
of the
driver or owner of the motor vehicle has been identified and when
this has not happened. This matter deals only with
the first of
these two.
The
RAF Act provides for exceptions. Prescription does not run against
a minor, anyone detained as a patient in terms of mental
health
legislation or anyone under curatorship.
20
Section
12(3)
of the
Prescription Act builds
a specific “knowledge
requirement” into the scheme of
section 12
though. As pointed
out earlier, the subsection stipulates 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.
21
In
terms of section 23(1) of the RAF Act, on the other hand,
prescription runs the date upon which thecause of action arose.
22
The term
cause of action
has been defined as “every
fact which . . . would be necessary for the plaintiff to prove, if
traversed, in order to support
his right to the judgment of the
Court.”
23
In the case of claims under the RAF Act, the elements of a cause of
action are established in terms of section 17
24
and include bodily injury or death, caused by or arising out of the
negligent driving of a motor vehicle, or a wrongful act
on behalf
of the driver or owner of the motor vehicle.
In
contrast to
section 12(3)
of the
Prescription Act, section
23(1) of
the RAF Act does not provide that prescription starts to run only
when the creditor acquires knowledge of the identity
of the debtor
and of the facts from which the claim arises. The question whether
the creditor could have reasonably acquired
this knowledge, raised
by section 12(3), therefore does not arise under section 23(1).
These differences between sections 12(3)
and 23(1) have been the
focus point of the submissions of the parties and the High Court
judgment in this case and are dealt
with below.
25
The RAF Act furthermore makes no provision for condonation of a
late claim, either based on the ignorance of the claimant,
or for
any other reason.
Factual
background
The
tragic facts of this case were canvassed in detail in an earlier
judgment by this Court.
26
The facts are revisited here only to the extent necessary for this
judgment.
The
respondent, Mr Mdeyide, has not had an easy life. Left virtually
blind after a childhood accident, he had almost no formal
education
and is illiterate. He cannot leave his home without help. He has
never held gainful employment and receives a disability
grant.
Having lived in informal settlements around East London in the
Eastern Cape, he often drifts from one to the other.
His mother and
sister help him in his daily activities. At the time of the
accident on which his claim is based he was married,
but his wife
later left him.
On 8
March 1999 Mr Mdeyide, accompanied by his wife, was walking on the
road close to his home when he was struck by a motor
vehicle. He
was rendered unconscious and transported to Frere Hospital by
ambulance, where he was treated and discharged seven
days later. He
does not have an independent recollection of the events, save for
being struck by a motor vehicle.
On
17 September 1999, upon his wife’s urging, Mr Mdeyide visited
the offices of Niehaus, McMahon and Oosthuizen in East
London and
consulted with an attorney who was to lodge a claim with the RAF on
his behalf. It would appear that this was the
first time he learnt
of his right to claim from the RAF.
Unfortunately,
however, events hereafter did not run smoothly. According to Mr
Niehaus, the attorney, he struggled to contact
his client. Only on
23 January 2002 did he manage to secure Mr Mdeyide’s
attendance at his office. He drafted an affidavit
based on a
statement taken at that meeting. Mr Mdeyide did not return to the
office to sign the affidavit. On 11 March 2002
the attorney sent
the unsigned affidavit to the RAF. This was three years and three
days after the accident.
After
some initial confusion as to the validity of the claim, as
reflected in the correspondence between the attorney and the
RAF,
it became clear that – in the Fund’s view – the
claim had prescribed and was therefore inadmissible.
The High Court and this Court
Having had his claim rejected by the RAF, Mr Mdeyide instituted
proceedings in the East London Circuit Local Division of the

Eastern Cape High Court. The Fund raised a special plea of
extinctive prescription in terms of section 23(1) of the RAF Act.
In
the High Court, Notshe AJ dealt with a number of issues that are
not before this Court, like whether the RAF had in fact
waived its
right to plead prescription and whether it had tacitly accepted the
claim as valid in law. He rejected the arguments
to this effect.
The
High Court noted the difference between
section 12(3)
of the
Prescription Act and
section 23(1) of the RAF Act. It considered an
argument presented on behalf of Mr Mdeyide that
section 12(3)
of
the
Prescription Act applies
to claims under the RAF Act by virtue
of
section 16
of the
Prescription Act.
27
It
held that the two provisions were inconsistent with each other
and concluded that the provisions of the
Prescription Act did
not
apply to claims under the RAF Act.
The
High Court then, on its own accord, raised the constitutional
validity of section 23(1) of the RAF Act. It invited the parties
to
make submissions on the point.
In
considering the constitutionality or otherwise of section 23(1),
the High Court asked whether the right in section 34 of
the
Constitution had been infringed or limited.
28
Thereafter it asked whether the limitation was justified in terms
of section 36 of the Constitution.
29
In
the view of the High Court, there could be no doubt that section
23(1) of the RAF Act limited the right of access to courts.
The
court found that the limitation was not justifiable under section
36. Whilst accepting that prescription periods served
a laudable
purpose and that the three year period was not offensive, the
rigidity of the provision rendered it unjustifiable.
The High Court
found that it was not the period that limits section 34 of the
Constitution, but rather the—
“
insufficient
and inadequate room that is left open in the beginning for the
exercise of that right. It does not take into account
the fact that
there might be a justifiable reason for a delay. It does not take
into account the ignorance and illiteracy of
some, if not majority,
of the people that the legislation is intended to protect.”
30
The
High Court found that section 23(1) of the RAF Act did not take
into account the purpose of prescription – to penalise

unreasonable inaction, and not inability to act – and
consequently failed to take into account the social and economic

conditions prevailing in South Africa. Thus, it was the fact that
prescription did not begin to run when the claimant acquired

knowledge of the RAF, as well as the lack of a condonation
procedure, that caused the provision to fail to pass constitutional

muster.
Accordingly,
the High Court struck section 23(1) down as unconstitutional for
its “failure to include the requirement
that prescription
should begin to run when the claimant has knowledge of the identity
of the debtor and of the facts from which
the debt arises”,
in other words for differing from the contents of
section 12(3)
of
the
Prescription Act. It
should also have had a provision allowing
for the condonation of a delay, the High Court reasoned.
The
order was referred to this Court for confirmation. The RAF appealed
against it as well. The Minister for Transport (Minister)
sought
and obtained leave to intervene to support the position of the
Fund. This Court found that the mental capacity of the
plaintiff
had been given insufficient attention,
31
as those who were deemed to be mentally ill or in need of a curator
ad litem
or curator
bonis
were excluded from the
ambit of section 23(1) of the RAF Act by virtue of section 23(2) of
the Act.
32
Thus, this Court referred the matter back to the High Court for a
finding on this issue.
After
an additional inquiry, the High Court found that the plaintiff was
of sound mind. Consequently, the court re-instated
its original
order. The matter has again been referred to this Court for
confirmation. The RAF and the Minister again appeal
against the
judgment.
The parties’ submissions
A
brief summary of the parties’ arguments may provide an
overview of the issues raised. A more detailed consideration
of
particular points appears below.
In
their attack on the finding that section 23(1) of the RAF Act is
unconstitutional, the RAF and the Minister make two main

submissions. The first is directed at the High Court’s view
that the right protected in section 34 of the Constitution
was
limited. The RAF and the Minister submit that the High Court
applied an incorrect test as to whether a prescription period

limits the right of access to courts. They submit that section
23(1) of the RAF Act grants claimants a real and fair opportunity

to lodge a claim and therefore does not infringe or limit the
right, in view of this Court’s jurisprudence.
33
The section also applies to a relatively narrow ambit of claimants
who are aware of the circumstances surrounding their accident
and
who are given three years to lodge their claim. Claimants like the
respondent are practically no worse off under section
23(1), than
they would have been in terms of the
Prescription Act, so
they
argue.
Alternatively,
they submit that if the right is found to be limited, this
limitation is reasonable and justifiable under section
36 of the
Constitution. In this regard they rely on the extensive adverse
administrative and financial impact on the Fund and
its
beneficiaries, if the term of prescription were to be relaxed.
On
behalf of Mr Mdeyide two main submissions were made. First, it is
argued that it is not necessary to reach the constitutional
issue.
By virtue of
section 16
of the
Prescription Act, section
12(3) of
the Act applies also to cases falling under the RAF Act and delays
the commencement of prescription, until the creditor
acquires
knowledge of the identity of the debtor. Consequently, prescription
would only have begun to run when Mr Mdeyide found
out about the
RAF during his first consultation with his attorney. Thus, his
claim would not have prescribed when he filed
it. Alternatively, it
is submitted that the High Court was correct in its reasoning and
conclusion that section 23(1) of the
RAF Act is unconstitutional.
Counsel for both sides presented submissions as to the appropriate
remedy and order, should section 23(1) be found to be
unconstitutional.
The
issues
The
issues before this Court, emanating from the judgment of the High
Court and submissions by the parties, are the following:
Does
section 12(3)
of the
Prescription Act apply
to claims under the RAF
Act, by virtue of
section 16
of the
Prescription Act? In
other
words, should or could the knowledge requirement of the
Prescription Act be
read into the RAF Act? This depends on whether
sections 12(3) and 23(1) are consistent or inconsistent and
requires an analysis
of the differences between them.
If
section 12(3)
of the
Prescription Act does
not apply to the RAF
Act, does section 23(1) of the RAF Act limit
34
the right of access to courts?
If so, is the limitation reasonable and justifiable?
What would the appropriate remedy be, if any?
What
is the difference between the two Acts, are they consistent and does
section 12(3)
of the
Prescription Act apply
to claims under the RAF
Act?
As
indicated above, it was argued on behalf of Mr Mdeyide that the
provisions of the
Prescription Act apply
to claims under the RAF
Act. If so, a debt is not deemed to be due until the creditor has
knowledge of the identity of the
debtor and of the facts from which
the debt arises, as required by
section 12(3)
of the
Prescription
Act. Prescription
will thus not commence until the creditor is
aware not only of the accident, but also of the existence of the
RAF as a public
body created by statute responsible for
compensation in the event of road accident injuries. Mr Mdeyide’s
claim would
therefore have been filed in time.
Whether
the provisions of the
Prescription Act apply
is determined by
section 16 of the Act. It states that the provisions apply in so
far as they are inconsistent with the provisions
of any Act of
Parliament, which in this case would be the RAF Act.
35
A
consistency evaluation is thus necessary.
36
The test has been formulated as “in every case in which a
plaintiff relies upon a [certain provision], the cardinal question

is whether that provision is inconsistent with [another
provision]”.
37
Inconsistency may arise as the result of a different time period
being stipulated, but also on other points, for example, with

regard to mental capacity.
38
However, where provisions have been found to deal with a similar
subject matter, yet without being identical, it has on occasion

been held that there was no inconsistency.
39
Before
considering whether the provisions are inconsistent, it should be
noted that section 23(1) of the RAF Act purports to
apply
“[n]otwithstanding anything to the contrary in any law”.
40
This seems to indicate that the RAF Act was drafted with the
knowledge that other provisions on prescription might exist on
the
statute book and in common law and that the purpose of the Act is
to regulate a specific and separate area, namely claims
for
compensation against the RAF, regardless of any other legal rule.
This may well be sufficient to oust the provisions of
the
Prescription Act. But
there are further reasons why the provisions
of the
Prescription Act cannot
apply to claims under the RAF Act.
Section
12(3)
of the
Prescription Act and
section 23(1) of the RAF Act
differ with regard to the central topic in the two provisions,
namely the point when prescription
starts to run. Section 23(1)
simply relies on the date on which the cause of action arose,
provided that the requirements of
section 17 are met. It does not
require knowledge of the identity of the debtor and of the facts
from which the debt arises,
as section 12(3) does.
As
to the requirement of knowledge of
the
facts from which
the debt arises
, the difference between the two provisions is
probably not very relevant for the present enquiry. Most conscious
and mentally
able victims of an accident
41
would certainly know about the accident in which they were injured.
As
to knowledge of the
identity of the debtor
, the RAF as the
debtor against whom claims are lodged, differs from the debtors
whose identity is referred to in the
Prescription Act. The
reason
why knowledge of the identity of the debtor is required in the
event of prescription of claims in general is obvious.
One may
often know that money is being owed to you, for example in terms of
a delictual claim for damage to property, but one
may not know who
caused the damage and thus who to claim from, until this knowledge
is gained from some investigation or the
emergence of evidence
otherwise. In contrast, the RAF does not have an “identity”
in the same sense that debtors
in general have. It is not one of
several or numerous possible wrongdoers. It was never an actor in
the facts making up the
cause of action. As indicated earlier,
knowledge of the identity of the driver or owner of the vehicle is
in any event required
by
section 17.
The RAF is a statutory body
specifically created for the purpose of compensating the victims of
road accidents. Knowledge of
the identity of the debtor thus means
knowledge of the law, that is that a victim of a motor vehicle
accident has a claim against
a public fund, namely the RAF.
There
is therefore a clear reason for the difference between the
Prescription Act and
the RAF Act. The
Prescription Act regulates
the prescription of claims in general and the RAF Act is tailored
for the specific area it deals with, namely claims for compensation

against the Fund for those injured in road accidents. The
legislature enacted the RAF Act – and included provisions
dealing with prescription in it – for the very reason that
the
Prescription Act was
not regarded as appropriate for this area.
Looking for consistency in this context, is a quest bound to fail.
To
argue that the
Prescription Act and
the RAF Act are not
inconsistent, because the RAF Act says nothing about the issue of
knowledge, and that knowledge of the
identity of the debtor could
thus be read into the RAF Act, would amount to circular reasoning.
The argument would ignore the
essential difference between the two
Acts. Practically the meaning of the two different provisions would
be the same. Section
23(1) of the RAF Act would be rendered
meaningless. This is not logically tenable.
Furthermore,
while section 12(3) stipulates prescription to begin to run as soon
as the debt is due, in other words in terms
of a claimable debt,
section 23(1) states that prescription is to start running as soon
as the cause of action has arisen,
which generally refers to the
date of the accident.
42
The very fact that sections 12(3) and 23(1) define the point at
which prescription begins to run in different terms gives rise
to
an inconsistency.
The
Prescription Act and
RAF Act are thus inconsistent.
Section 12(3)
of the
Prescription Act cannot
apply to claims under the RAF Act.
The finding of the High Court in this regard was correct.
It
is consequently necessary to address the constitutional validity of
section 23(1) of the RAF Act. This has to be done on
its wording as
it stands.
Does
section 23(1) of the RAF Act limit the right of access to courts?
This
Court has addressed the constitutionality of prescription periods
and similar time bars on a number of occasions. In this
case,
though the attack is directed at the time bar, the complaint is not
the three-year period, but the lack of flexibility
in its
initiation.
Because
the Constitution recognises specific rights in Chapter 2 and
provides for the limitation of rights by way of a general

limitation clause, a two-stage enquiry is necessary. The process of
interpreting a right is different from that of considering
the
limitation of the right. Two questions have to be asked. The first
is whether the right is limited and, if it is, the second
is
whether the limitation is constitutionally permissible.
43
If the answer to the first question is that the right is not
limited, the second question does not arise.
This
approach has been followed by this Court, also in respect of the
right of access to courts. In
Mohlomi v Minister of Defence
44
this Court considered the constitutional validity of a time bar
clause in the Defence Act.
45
The provision imposed an obligation on claimants pursuing an action
against the state, to institute the action within six months
and to
give notice of one month to the defendant before instituting the
claim. Mr Mohlomi claimed compensation for injuries
allegedly
sustained when a soldier shot him intentionally. The defence of the
Minister was that the dual requirements of the
six-month period and
the notice had not been met.
Writing
for a unanimous Court, Didcott J recognised the laudable purpose
that prescription periods serve
46
but held that “[i]t does not follow, however, that all
limitations . . . are constitutionally sound”.
47
Each prescription period must be scrutinised in order to determine
whether its “particular range and terms are compatible
with
the right which section 22 bestows on everyone”.
48
He recognised that while there may be instances in which the right
is denied altogether if a claim prescribes, this is a possibility

in every case in which prescription periods exist. What matters, he
said, is “the sufficiency or insufficiency, the adequacy
or
inadequacy, of the room which the limitation leaves open in the
beginning for the exercise of the right” and “the

availability of an initial opportunity to exercise the right”.
49
He found that claimants were not afforded “an adequate and
fair opportunity to seek judicial redress for wrongs allegedly
done
to them” and that the limitation of the right of access to
courts had not been shown to be reasonable and justifiable.
50
A
two-step analysis was undertaken in
Mohlomi.
The meaning and
scope of the right of access to courts were discussed and the right
was found to be limited. Thereafter the
question whether the
limitation was reasonable and justifiable in terms of the
limitation clause was dealt with.
51
However, some of the considerations taken into account during the
first phase of the enquiry, could have been relevant in the
second
as well. The finding that the claimant was not afforded an adequate
and fair opportunity to seek judicial redress, could
have been made
at the end of the second stage of the enquiry, as it was at the end
of the first.
52
In
other cases this Court broadly followed the approach laid down in
Mohlomi
. In
Moise
,
53
Potgieter
54
and
Engelbrecht
55
this Court struck down periods of 90 days, three months and 14
days, respectively, as unconstitutional. In each case the time

period – with reference to the six months in
Mohlomi
–
was held to be too short. The right was found to have been limited
and the limitation to be unreasonable and unjustifiable.
It
is quite possible that the legislature may limit the right of
access to courts in a way that is reasonable and justifiable
and
thus passes muster under section 36. In
Beinash
56
this Court considered the constitutionality of a provision of the
Vexatious Proceedings Act,
57
imposing certain restrictions on the ability of persons identified
as having abused their right to bring legal actions. The
applicant
challenged the provision as a violation of the right of access to
courts. The Court found that the right was indeed
limited by the
section. However, the limitation was reasonable and justifiable in
terms of section 36, because it served an
important purpose namely
protection of the judicial process.
58
In
my view the right of access to courts is indeed limited by section
23(1) of the RAF Act. A time limit is imposed with regard
to claims
for compensation against the RAF. As stated in
Brümmer
,
59
time bars limit the right to seek justifiable redress. The starting
point for the time period is fixed and in some respects
inflexible
and no knowledge of the existence of the RAF is required. This
impacts on the exercise of a claimant’s right
to approach a
court.
Is the
limitation reasonable and justifiable?
Consequently,
we have to consider whether this limitation of the right of access
to courts meets the requirements of section
36 of the Constitution.
Section 36(1) provides that the rights in the Bill of Rights may be
limited in terms of law of general
application, to the extent that
the limitation is reasonable and justifiable in an open and
democratic society based on human
dignity, equality and freedom. It
requires taking into account all relevant factors, including the
nature of the right, the
importance of the purpose of the
limitation, the nature and extent of the limitation, the relation
between the limitation and
its purpose and less restrictive means
to achieve that purpose.
60
Section
23(1) of the RAF Act is law of general application. The question is
therefore whether the limitation is reasonable and
justifiable in
an open and democratic society based on human dignity, equality and
freedom, in view of all relevant factors,
including those mentioned
in section 36(1).
Not
much needs to be said about the nature of the right of access to
courts. It is clearly an important right. As stated earlier,
it is
essential in a constitutional democracy under the rule of law. It
implies a degree of awareness, or knowledge, on the
part of the
bearer of the right.
But, like other rights, it
can be limited.
The
central issue is one of proportionality. All the factors are to be
considered and weighed together; not one of them is conclusive
on
its own. In this process, the devastatingly final effect of
prescription on a claim, the inflexibility of the starting point
of
the prescription period in section 23(1), the absence of a
knowledge requirement and provision for condonation and the
difficult situation in which some claimants might be placed, must
be considered, especially against the backdrop of poverty
and
illiteracy in our society. These must be weighed against the
generosity of the time period of three years, the need for
the
proper administration of public funds and the potential harmful
effects of a more flexible or open dispensation.
The
state – in this case the RAF and the Minister – has to
demonstrate that the limitation is reasonable and justifiable.
This
duty is not the same as the evidentiary onus of proof.
61
In
Brümmer
62
Ngcobo J summarised the principles emerging from this Court’s
prior jurisprudence on time bars as follows:
“
The
principles that emerge from these cases are these: time-bars limit
the right to seek judicial redress. However, they serve
an important
purpose in that they prevent inordinate delays which may be
detrimental to the interests of justice. But not all
time limits are
consistent with the Constitution. There is no hard-and-fast rule for
determining the degree of limitation that
is consistent with the
Constitution.
‘enquiry turns wholly on estimations of degree’. a
time-bar provision is consistent with the right of access to court

depends upon the availability of the opportunity to exercise the
right to judicial redress. pass constitutional muster, a time-bar

provision must afford a potential litigant an adequate and fair
opportunity to seek judicial redress for a wrong allegedly

committed. must allow sufficient or adequate time between the cause
of action coming to the knowledge of the claimant and the time

during which litigation may be launched. And finally, the existence
of the power to condone non-compliance with the time-bar
is not
necessarily decisive.”
63
(Footnotes omitted.)
There
are thus no hard and fast rules, each case must be judged on its
own circumstances and it is a matter of degree. Adequate
time must
be given to institute a claim and the practical possibility and
genuine opportunity to do so is important.
Mohlomi
started
to define this approach. In the cases between
Mohlomi
and
Brümmer
, the periods were so short that this Court
barely needed to consider the specific circumstances surrounding
the individual
cases to conclude that no litigation to enforce
rights was reasonably possible within those time limits. In
Brümmer
this Court went further and also considered the general steps one
needs to take to lodge an application.
64
Socio-economic
conditions in South Africa are of course highly relevant in
considering the reasonableness and justifiability
of a limitation
of the present kind. In a society where the workings of the legal
system remain largely unfamiliar to many
citizens, due care must be
taken that rights are adequately protected as far as possible. In
Mohlomi
reference was made to—
“
.
. . the background depicted by the state of affairs prevailing in
South Africa, a land where poverty and illiteracy abound and

differences of culture and language are pronounced, where such
conditions isolate the people whom they handicap from the mainstream

of the law, where most persons who have been injured are either
unaware of or poorly informed about their legal rights and what
they
should do in order to enforce those, and where access to the
professional advice and assistance that they need so sorely
is often
difficult for financial or geographical reasons.”
65
It
is true, despite the progress that has been made in many areas
since the time when
Mohlomi
was decided, that poverty and
illiteracy are still widely prevalent in our country. But these
considerations are not the sole
ones deserving attention in this
case. The purpose of the analysis is to determine whether the
limitation of the right of access
to courts is reasonable and
justifiable in view of all relevant considerations and within the
context of the facts of the case
before us.
Mr
Mdeyide’s submissions rely heavily on the considerations
regarding poverty and illiteracy. His counsel contends that
the
infringement of the right of access to courts cannot be justified
in these circumstances. , there would be no prejudice
to the RAF if
his claim were to be entertained. In fact, the claimant promptly
informed the Fund that the claim was being launched
outside of the
three-year period and the Fund seemed to have been amenable to it,
as the correspondence between the parties
illustrates, according to
counsel for Mr Mdeyide.
The
RAF and the Minister seek to justify the infringement by pointing
out the serious adverse financial and operational effects
that
changes to the strict prescription period would have. In essence
they submit that the operations of the RAF depend heavily
on the
fixed prescription period.
More
specifically, they rely on three direct effects of deviating from a
strict time bar. First, thefixed commencement date
allows the RAF
to process claims efficiently and expeditiously. Mr Abrahams, the
Acting Chief Operations Manager of the RAF,
states under oath that
the Fund receives on average about 18 800 claims per month and that
a backlog of approximately 250 000
unfinalised cases existed in
December 2009. If a condonation procedure or a knowledge
requirement were to be brought into section
23(1), it would have a
far-reaching impact on how new cases would have to be dealt with.
According to an affidavit by Mr Karberg,
the Senior Manager of
Legal Services at the Fund, RAF officials would have to investigate
whether a case for condonation has
indeed been made out in each
case. Not only is this a highly individualised and laborious task,
but the Fund is also at a particular
disadvantage as it does not
have a way of anticipating such claims. This would require them to
change fundamentally the way
in which they deal with claims. It is
also likely to increase the RAF’s backlog of cases.
The
RAF and the Ministerfurthermore submit that changing the time bar
would have a significant impact on the way in which the
Fund
evaluates claims, that is to say whether they settle a claim or
litigate to oppose it. In order to evaluate claims, the
RAF
requires sets of documents from the police and hospitals, details
relating to non-hospital medical treatment, witnesses’
and
drivers’ contact details and other related information. In
addition, inspections
in loco
are required. As time passes,
the possibility of these documents becoming unavailable, being
discarded, or going missing, increases.
The same goes with even
greater force for statements which witnesses must make from memory.
All of this would pose a serious
threat to the ability of the RAF
to evaluate claims properly and, consequently, raise the
possibility of the Fund being forced
to litigate against claims
because it was not satisfied a claim is valid as a consequence of
it not being able to evaluate
a claim properly. In essence, the
Fund contends that it is particularly dependent on the quality of
claims that it receives,
magnifying the need for prescription
periods that is present in every case before a court.
The
Fund argues that the proposed changes to section 23(1) would make
it impossible for the RAF to accurately predict its future

expenditure. It bases its predictions on past patterns. Were the
system to be changed fundamentally, these patterns would no
longer
hold true and the RAF would be unable to budget accurately for a
number of years into the future. Thus, at the very
least, a
declaration of invalidity of section 23(1) of the RAF Act would
cause great uncertainty to the finances of the RAF,
in addition to
any additional expenditure.
In
my view the exact nature and full extent of the practical
consequences of a more open prescription period for the RAF –

and by extension the public – are necessarily subject to some
speculation at this stage. However, it seems reasonably
safe to say
that they are potentially costly at best and calamitous at worst.
The Fund is financially burdened as it is, and
significant further
expenditure will inevitably lead to an increased budget deficit. To
what extent the operations of the RAF
would be affected may not be
absolutely certain; however, given the backlog of cases it could be
accepted that the RAF will
suffer in its efficiency. To some extent
this further burden would be borne by the public, as road accident
claims would be
processed slower and everybody would be worse off.
The worst case scenario is that the Fund might collapse and road
accidents
would go uncompensated, leaving thousands of claimants
without the possibility of receiving compensation for their
injuries
and losses.
In
spite of the lack of absolute certainty regarding the effects of
scrapping the strict cut-off point of section 23(1), or
the
introduction of a general condonation clause on the viability of
the RAF, the risk must not be underestimated. The evidence
and
arguments put forward by the Fund are uncontradicted and
compellingly persuasive and cannot be ignored or taken lightly.
The
fact that the Fund does not show exactly how many people are
affected by the prescription period as currently formulated,
cannot
be decisive. The risk that claimants may explain their lateness by
relying on their ignorance of the law is real. It
would not be easy
for the RAF to prove their reliance to be incorrect, or to show
that they could reasonably have acquired
the knowledge, as provided
for in
section 12(3)
of the
Prescription Act. And
it would
certainly be costly.
The
limitation of the right in this case is clearly connected to a
legitimate purpose of high public importance, namely the
continued
existence and maximum efficiency of a fund for the compensation of
people injured in road accidents. Relaxing the
system of
prescription for claims under the RAF Act might at the very least
lead to a significant increase in the Fund’s
expenditure. It
is, however, not only about increased administrative and other
costs, but also about the functioning and financial
sustainability
of a hugely important public body which renders an indispensible
service to vulnerable members of society.
It
is of course not easy to square the limitation of a fundamental
right with what on its face may appear to be administrative
work
and financial costs. But our Constitution – like most or all
modern Constitutions – recognises that rights
can be limited
in an open democratic society and requires us to consider the
limitation by taking a range of factors related
to practical
realities into account. In this case we have to balance the
limitation of a fundamental right with the potentially
calamitous
consequences for the RAF, a body designed to help those who
suffered as a result of road accidents, which may well
otherwise
follow.
It
is a reality that interests – and rights – compete.
Section 36 allows for the limitation of rights necessitated
by the
competition and provides a formula to weigh competing interests and
rights. The legislature has a duty to respect and
protect the
constitutional right of access to courts, but also the right to
human dignity of the victims of road accidents,
by providing for
them to be compensated by a properly administered public fund. To
regard as crucially important the need for
a fund like the RAF to
remain viable in order for it to serve its purpose, is in line with
the constitutional values of human
dignity, the achievement of
equality and the advancement of human rights and freedoms.
66
In
considering the proportionality of the limitation and its purpose,
we have to return for a to the length of the prescription
period.
The generosity of the time period of three years within which to
institute a claim weighs heavily in the balancing
process. The time
bars previously struck down by this Court as unconstitutional were
much shorter, ranging between 14 days
and six months.
67
People
who are injured in road accidents are likely to of the RAF during
the three years following the event. Although poor
and illiterate
people are in very many respects less empowered than those with
significant means and education, knowledge of
the existence of a
claim is not only related to the degree of formal education one has
undergone, or to one’s wealth.
It is the kind of information
not normally acquired from books, but rather through word of mouth
and day-to-day interaction,
not unlike questions of how to use
public transport, or where to get medical help, or how to claim
state benefits.
Only
the very first step in the process of claiming compensation needs
to be taken within the three-year period. The process
of claiming
under the RAF Act is relatively simple compared to more complex
legislation. No written notice, linked to the time
bar of six
months, is required, as was the case in
Mohlomi
.
68
Next,
the perceived inflexibility of section 23(1) requires closer
scrutiny.
Section 12(3)
of the
Prescription Act cannot
necessarily
be elevated to a benchmark, as far as the knowledge requirement is
concerned, as was done by the High Court. As
indicated earlier, the
Prescription Act and
the RAF Act are different pieces of
legislation, with very different purposes. Knowledge of the
identity of the debtor, required
by
section 12(3)
of the
Prescription Act, plays
no role in the scheme of section 23(1) of
the RAF Act.
69
In
Mohlomi
70
the
Prescription Act was
used as a “handy yardstick”
against which to measure the limitation imposed by section 113(1)
of the Defence Act.
Didcott J mentioned that the period of
prescription under the
Prescription Act was
three years, in
contrast to the six months in terms of the Defence Act. He also
referred to the knowledge requirement. The
Prescription Act was
far
more comparable to the Defence Act than to the RAF Act, though.
Didcott J furthermore referred to the then section 57 of
the South
African Police Service Act,
71
a very comparable provision, allowing for 12 months after the
claimant became aware of the act or omission giving rise to the

claim.
In
Brümmer
72
Ngcobo J said that sufficient or adequate time must be allowed
between “the cause of action coming to the knowledge of
the
claimant” and the launching of litigation. This does not mean
that knowledge as referred to in the
Prescription Act is
always
required though. As stated in
Brümmer
,
73
there are no hard and fast rules, each enquiry turns on estimates
of degree and each provision must be scrutinised to see whether
it
is compatible with the right of access to courts.
The
absence of provision for condonation has been raised as a part of
the concern about the inflexibility of
section 23(1).
In
Brümmer
74
this Court made clear that the power to condone non-compliance with
a time bar is a relevant consideration, but not necessarily

decisive. Furthermore, the
Prescription Act also
does not provide
for condonation.
75
In this matter the RAF has put forward persuasive arguments as to
the negative effects condonation would have on its functioning.
The
length of the period of prescription must necessarily be considered
together with and balanced against the rigidity of its
starting
point, the absence of the requirement of knowledge and the absence
of provision for condonation. The shorter the period,
the more one
would look for flexibility and scope for exceptions. A very
generous prescription period – like the three-year
period in
this case – in itself provides considerable flexibility and
space for people experiencing difficulties. If,
for example, the
RAF Act provided for a period of two instead of three years, but
required knowledge of the RAF for it to commence,
Mr Mdeyide would
have been worse off. He would have had two-and-a-half years to
submit his claim instead of three years.
The
prescription period does not disregard the plight of the poor and
the illiterate. The facts of this case provide a telling
example.
Because of his disability and socio-economic status Mr Mdeyide
certainly falls into the category of very disempowered
and
marginalised people. Yet, he found out about the RAF within
approximately six months after his accident. His ignorance
was not
the main problem. After first approaching an attorney,
two-and-a-half years passed during which his claim could have
been
submitted. Eventually the claim was three days late. A knowledge
requirement would of course have benefited him in that
the
prescription period would have started later and his claim would
have been filed in time. But this would have been coincidental.
His
lack of knowledge for six months was not the primary cause of the
lateness of his claim. It is not insignificant that –
when
confronted with the special plea of prescription – Mr
Mdeyide’s legal representatives did not raise the

unconstitutionality of section 23(1) on the basis that he was not
aware that he could sue the Fund and that the provision does
not
require knowledge for prescription to start running. The High Court
did so.
The
poverty, illiteracy and lack of access to transport, modern
communication facilities and proper legal advice, which continue
to
plague and marginalise many in South Africa, have diverse causes,
run deep and are widespread. The Constitution and the
courts
applying it have a role to play in advancing dignity and other
human rights, but one must guard against over-simplification.
Froneman
J rightly draws attention to and emphasises the criterion of less
restrictive means. Could the legislature have enacted
a less
drastic dispensation? According to the RAF and the Minister, it
could not have done so. Even if they are incorrect,
this is not the
only consideration. The exercise is one of in which all the factors
are weighed against one another. The mere
possibility of less
restrictive means is therefore not decisive.
76
Bearing
this in mind, the potential harm to the viability and functioning
of the RAF, a knowledge requirement or provision for
condonation be
imported into the scheme of section 23(1), outweighs the possible
negative impact of the provision in its present
form on people who
might not come to know about the Fund for three years after the
accident in which they sustained injuries.
The RAF Act was
legislated for a specific area and purpose. It limits the right of
access to courts, but the importance of
the purpose, the nature and
extent of the limitation and the relation between the limitation
and its purpose render the limitation
proportional to its purpose
and thus reasonable and justifiable.
Conclusion
Accordingly,
the limitation of the right of access to courts by section 23(1) of
the RAF Act is reasonable and justifiable under
section 36 of the
Constitution. Taking all relevant considerations into account,
claimants are – in the words used in
Mohlomi
77
and in
Brümmer
78
– afforded an adequate and fair opportunity to seek judicial
redress. Section 23(1) is not unconstitutional.
The
order of the High Court cannot be confirmed. The appeal must
succeed. No further consideration of a remedy based on the

unconstitutionality of the provision is necessary.
It
inevitably follows from this finding and the nature of the
proceedings before the High Court that Mr Mdeyide’s claim
has
reached the end of the road. was raised by way of a special plea.
The court found section 23(1) unconstitutional and dismissed
the
special plea. The matter is before us as confirmation proceedings
and also on appeal. The High Court is
functus officio
. If
section 23(1) is not unconstitutional, the special plea should have
been upheld, which would mean that the claim had to
be dismissed.
Mr
Mdeyide’s situation is extremely regrettable, but not because
section 23(1) is for not permitting him to bring his
claim later.
There are other possibilities. One was mentioned in this Court’s
previous judgment in this matter:
79
“
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.”
Costs
There
is no reason to deviate from the ordinary rules on costs in this
Court.
80
Mr Mdeyide approached the High Court in terms of his constitutional
right of access to courts, in order to enforce his right
to
compensation under the RAF Act. The constitutional validity of a
statute limiting his right of access was under scrutiny.
He is
ultimately unsuccessful. It is appropriate that each party be
responsible for their own costs in this Court, as well
as in the
High Court.
Order
The
following order is made:
The
appeal is upheld.
The declaration of constitutional invalidity of the Eastern Cape
High Court, East London Circuit Local Division, regarding the

constitutional validity of
section 23(1)
of the
Road Accident Fund
Act 56 of 1996
under case number EL 91/2004 is not confirmed.
The order of the High Court is set aside and replaced by the
following
order:
The
defendant’s special plea is upheld.
The plaintiff’s claim is dismissed.
There is no order as to costs.
There
is no order as to costs in this Court.
Ngcobo
CJ, Moseneke DCJ, Cameron J, Khampepe J, Mogoeng J, Nkabinde J, and
Skweyiya J concur in the judgment of Van der Westhuizen
J.
FRONEMAN J:
Introduction
100] The
right of access to court to resolve justiciable disputes is
fundamental to a society governed by the rule of law.
81
Knowledge of the facts that give rise to a justiciable claim is a
necessary precondition for the exercise of the right of access.

Without that knowledge the right of access means nothing; it remains
abstract and illusory.
101] Time
bars and prescription periods
82
limit the right to seek judicial redress. The main object of these
limitations is no doubt to create legal certainty and finality

between the parties after a lapse of time, but they should not serve
as a blunt instrument to achieve finality regardless of
the
circumstances of the parties to an obligation.
83
Even though these limitations serve an important purpose in
preventing inordinate delays which may be detrimental to the
interests
of justice, they must still be scrutinised to determine
whether they pass constitutional muster under section 36 of the
Constitution.
102]
There is no hard and fast rule for determining the degree of
limitation that is consistent with the Constitution. It depends
upon
whether the limitation affords litigants an adequate and fair
opportunity to exercise the right to judicial redress. The

limitation must allow sufficient time between the date when the
facts giving rise to the claim come to the knowledge of the claimant

and the time within which litigation may be launched.
84
103] The
Prescription Act,
85
as
the benchmark legislation for the operation of prescription,
requires knowledge, actual or reasonably deemed, as a necessary

precondition to enable someone to exercise their right of access to
court.
86
This is also evident in various other laws
87
and past decisions of this Court.
88
The object of this requirement is aimed at preventing prescription
running against a person who, by reason of the lack of knowledge
and
the inability to acquire it by the exercise of reasonable care, is
unable to institute action. Where knowledge is not expressly

recognised in this way, access to courts may also be preserved by
providing courts with powers to grant condonation in deserving

cases.
89
104] The
provisions of
section 23(1)
of the
Road Accident Fund Act
90
(RAF
Act) go against this. It has no knowledge requirement and it
does not provide courts with the power to grant condonation. Except

for the lengthier time periods, its provisions suffer from the same
defects that failed to pass constitutional muster in
Mohlomi
.
91
I therefore respectfully disagree with the majority judgment that
there is sufficient justification under section 36 of the
Constitution for it to survive. I believe that our different
assessment of the merits of its justification has its roots, first,

in divergent views on the extent to which section 23(1) limits the
right of access under section 34 of the Constitution and,
second, on
the proper social context in which this matter must be decided. I
deal with the limitation imposed by section 23(1)
and the social
context, before turning to justification under section 36 of the
Constitution.
Limitation of the right
105] As
stated above, I consider that knowledge (actual or reasonably
deemed) of the facts giving rise to a justiciable claim
is a
necessary part of the right of access to court under section 34 of
the Constitution. To recognise this seems to me to be
logical, fair
and practicable. I can discern no fundamental constitutional value
that would exclude knowledge as a necessary
definitional part of the
right of access to court under section 34 of the Constitution.
92
106] The
majority judgment alludes to the possibility that in
Mohlomi
,
93
the same kind of considerations were discussed in both stages of the
two-stage limitation and justification analysis.
94
It is equally plausible to read
Mohlomi
as including
knowledge as a requirement in the definitional first stage of the
inquiry. Secondary to that, but also a necessary
part of the right
of access, is that it must always be open to courts to scrutinise
and control the purported exclusion of any
constituent part of the
right of access. This reading of
Mohlomi
is consistent with
this Court’s insistence that it is an indispensable part of
the right of access, as underpinning the
foundational constitutional
value of the rule of law, for courts to keep control of all aspects
of the judicial process.
95
107]
Section 23(1) thus limits the right of access in three ways:
(a) By denying that an
essential part of the right of access, namely knowledge of one’s
claim, forms part of that right;
(b) By precluding the secondary
justiciable issue, whether one had sufficient time to claim after
acquiring knowledge, from being
adjudicated in court; and
(c)
By providing that one’s right to compensation becomes
prescribed after three years
.
108] The
time period of three years in section 23(1) obscures and obfuscates
the real issues in the case. On its face section
23(1) does not
provide for the time “between the cause of action coming to
the knowledge of the claimant and the time during
which litigation
may be launched”, summarised as a requirement for
constitutional validity by Ngcobo J in
Brümmer.
96
The facts of this case illustrate the potential danger of this
failure. It is common cause that the applicant, Mr Mdeyide, only

gained knowledge of the necessary facts to institute his claim six
months after the accident in which he was injured. From this
it is
temptingly easy to conclude that he nevertheless still had
two-and-a-half years in which to lodge his claim; that this
was
sufficient time to do so and that consequently, his constitutional
challenge to section 23(1) must fail. But to do that would
be wrong,
for two different but interrelated reasons.
109] The
first reason is that the constitutional validity of section 23(1) is
an objective question, not dependent on the particular
facts of Mr
Mdeyide’s case.
97
The question is
not
whether two-and-a-half years passes
constitutional scrutiny, but simply whether section 23(1)
provides for the relevant
time “between the cause of action
coming to the knowledge of the claimant and the time during which
the litigation may
be launched.” And the simple answer to that
is that it does not. Even if the section has the potential to
deprive one person
of a right of action without sufficient
justification that is enough. The question is not whether people
have actually been deprived
but whether objectively speaking the
provisions of section 23(1) have that potential.
110] The
second reason is that the question whether two-and-a-half years is
nevertheless a sufficient time after gaining the necessary
knowledge
to lodge a claim, is one which the terms of section 23(1) preclude
courts from answering. Under the provisions of section 23(1)

the courts have no power to entertain that question.
111] Upon
close analysis the threat posed by section 23(1) to the fundamental
right of access to courts thus runs deep. It seeks
to negate an
essential part of the right by precluding knowledge as a requirement
and it seeks to prevent the courts from maintaining
judicial control
over the justification of the limitation in individual cases, a
necessary corollary of that right. It does all
that in addition to
what it has in common with all other time bar and prescription
provisions; imposing a time limit beyond which
a litigant is
precluded from access to court.
112] On
its own, these limitations require strong justification. Add the
social context in which the analysis needs to be done
and the need
for a particularly compelling purpose for the limitations becomes
even more urgent.
Social
context
113]
As is apparent from the analysis of the limitation justification put
up in the papers by the Road Accident Fund (RAF) and
the Minister
for Transport (Minister) in the majority judgment, that
justification did not attempt to provide any information
on the
likely number of people who would not have the necessary knowledge
of the facts to lodge claims against the RAF under
the provisions of
the Act.
In my view the failure to do so undermines their
justification argument, but for the moment I want to restrict the
discussion
to the question whether there is any reasonable basis for
concluding that the acquisition of the necessary knowledge to lodge
a claim would most likely present a problem for poor, illiterate and
uneducated people, rather than for the more advantaged in
society.
The answer seems quite obvious to me.
114] Fourteen years ago Didcott J described South Africa as a land:
“
[W]here
poverty and illiteracy abound and differences of culture and
language are pronounced, where such conditions isolate the
people
whom they handicap from the mainstream of the law, where most
persons who have been injured are either unaware of or poorly

informed about their legal rights and what they should do in order
to enforce those, and where access to the professional advice
and
assistance that they need so sorely is often difficult for financial
or geographical reasons. The severity of s 113(1) which
then becomes
conspicuous has the effect, in my opinion, that many of the
claimants whom it hits are not afforded an adequate
and fair
opportunity to seek judicial redress for wrongs allegedly done to
them.”
98
115] It
is true that it is the commitment of our Constitution and public
authorities to alleviate and if possible eradicate that
state of
affairs, and that much has been done in that regard since then. I
believe, however, that it is unrealistic to think
that for a
substantial portion of our population things have changed that much.
116] This
is confirmed by the findings of the Satchwell Commission
(Commission) in the Report of the Road Accident Fund Commission

which investigated the workings of the RAF in 2002.
99
According to the Commission’s findings, research indicated
that general awareness of the road accident compensation scheme
was
restricted to slightly less than 50% and that awareness of the RAF
increased with household income levels and living standards.
100
Similar kinds of statistics emerged even in respect of persons who
had been involved in accidents.
101
The Commission found that “one of the main barriers to
claiming compensation from the RAF is the limited awareness of the

Fund and a lack of knowledge about the current scheme of accident
compensation.”
102
117] What
is also clear from the findings of the Commission is that there are
other reasons, beside lack of knowledge, that have
hindered people
from being able to claim from the RAF. These include the fact that
it is often difficult for people, emerging
from apartheid
bureaucracy, to produce documentation proving birth, marriage and
dependency. People participating in the informal
economy are often
unable to provide proof of employment and earnings. Even the
incompetence of legal representatives in failing
to bring timeous
claims has hindered the process.
103
The former two reasons also illustrate, even more acutely, the
social context within which this limitation operates.
118]
Further confirmation comes from Mr Mdeyide himself. As pointed out
in the majority judgment, he has not had an easy life.
The summary
of his difficulties in that judgment in my view amply illustrates
that his socio-economically deprived circumstances
caused or
contributed to his failure to acquire the necessary knowledge to
lodge his claim against the RAF. It is not difficult
to imagine that
there are still many others like him, some perhaps better off,
others possibly even much worse off.
119] I am
afraid that I need to reiterate that in my view it is not only wrong
in law to justify the workings of section 23(1)
by reference to the
fact that he still had two-and-a-half years to claim after gaining
the necessary knowledge, but that it is
also procedurally unfair.
120] Mr
Mdeyide only had to show that his own right of access has also been
infringed because of the provisions of section 23(1).
He has done
that. Because of the initial six months during which he did not have
knowledge, his claim has prescribed. As a result
of his social
disability he has had less time to lodge his claim than a socially
advantaged person. If there was a condonation
provision in section
23(1) he would have had the opportunity to try and convince the
court that the two-and-a-half year period
was still not enough. But
the provisions of section 23(1) have prevented him from being able
to do that by making his inability
to comply with section 23(1) a
non-justiciable issue between him and the RAF. This is one of his
constitutional complaints. It
is also unfounded to assume that
because he acquired knowledge in six months most people in his
position would too.
121] In
my view, the correct social context within which to evaluate the
justification of the limitations to the right of access
under
section 34 of the Constitution brought about by the provisions of
section 23(1) is that those limitations will primarily
affect poor,
illiterate and uneducated people. That probability holds important
consequences for the justification evaluation,
as do the deep and
multi-layered limitations imposed by the provisions of section 23(1)
of the Act on the exercise of the right
of access.
Justification
122] The
limitations imposed on the right of access by the provisions of
section 23(1) of the Act must be reasonable and justifiable
in an
open and democratic society based on human dignity, equality and
freedom.
104
In
Brümmer
the evaluation process was summarised as
follows:
“
In
assessing whether the limitation imposed by [the section] is
reasonable and justifiable under section 36(1), regard must be
had
to, among other factors, the nature of the right limited; the
purpose of the limitation, including its importance; the nature
and
extent of the limitation; the efficacy of the limitation, that is,
the relationship between the limitation and its purpose;
and whether
the purpose of the limitation could reasonably be achieved through
other means that are less restrictive of the right
in question. Each
of these factors must be weighed up but ultimately the exercise is
one of proportionality which involves the
assessment of competing
interests. Where justification rests on factual or policy
considerations, the party contending for justification
must put such
material before the court.”
105
(Footnotes omitted.)
123] In
their papers before this Court, the RAF and the Minister justified
the inflexibility of the limitations on three efficiency

considerations, namely that: (a) a fixed commencement date
facilitates the efficient and expeditious processing of claims, (b)

a fixed cut-off date does the same by ensuring that information on
claims is still reasonably available in order to assess the
validity
of claims and (c) the fixed time frame underlies the RAF’s
budgeting process for the future. The introduction
of flexibility by
way of a knowledge requirement would in all likelihood increase the
already existing backlogs experienced by
the RAF and also seriously
affect its financial viability.
124] The
RAF and the Minister argue that the RAF is not an ordinary debtor.
Unlike other debtors, it is dependent on the quality
of information
it receives from others which makes this consideration even more
acute. These significant burdens must be weighed
against the
relatively insignificant limitations of the right of access to
courts occasioned by section 23(1) of the RAF Act,
as evidenced by
the generous three year time period and its narrow application to
persons who are not incapacitated by mental
disabilities, age and
the like, for whom special provision is made in section 23(2).
106
No figures of the likely numbers of people excluded by the
inflexibility of section 23(1) were advanced, nor were any
projections
of the likely costs to deal with more flexible
provisions.
125] Our
Constitution has often been described as “transformative”.
107
One of the most important purposes of this transformation is to
ensure that, by the realisation of fundamental socio-economic

rights,
108
people disadvantaged by their deprived social and economic
circumstances become more capable of enjoying a life of dignity,
freedom and equality that lies at the heart of our constitutional
democracy.
109
The RAF Act fits comfortably into this aspiration. The RAF Act and
its predecessors, dating back to 1942,
110
have consistently been regarded as “social legislation”,
the primary concern of which was “to give the greatest

possible protection . . . to persons who have suffered loss through
a negligent or unlawful act on the part of the driver or
owner of a
motor vehicle.”
111
126]
Hence, one would expect this kind of “social”
legislation to endeavour to include all segments of society and
pay
particular heed to the socially and economically disadvantaged in
doing so. To the extent that it does not, this would have
to be
considered as a relevant factor in evaluating whether their
exclusion is reasonable in an open democratic society based
on human
dignity, equality and freedom.
127] In assessing the reasonableness of measures taken for the
progressive realisation of the right to have access to housing
under
section 26(1) of the Constitution in
Grootboom
,
112
Yacoob J remarked that:
“
A
programme that excludes a significant segment of society cannot be
said to be reasonable.”
113
and, further:
“
To
be reasonable, measures cannot leave out of account the degree and
extent of the denial of the right they endeavour to realise.
Those
whose needs are the most urgent and whose ability to enjoy all
rights therefore is most in peril, must not be ignored by
the
measures aimed at achieving realisation of the right. It may not be
sufficient to meet the test of reasonableness to show
that the
measures are capable of achieving a statistical advance in the
realisation of the right. Furthermore, the Constitution
requires
that everyone must be treated with care and concern. If the
measures, though statistically successful, fail to respond
to the
needs of the most desperate, they may not pass the test.”
114
128]
Similar considerations have been taken into account in other
decisions of this Court.
115
They are relevant to the present matter in evaluating what an open
democratic society based on dignity, equality and freedom
regards as
justifiable and reasonable when fundamental rights are limited.
116
129] The
RAF and the Minister provided no figures to indicate what segment of
the population would most likely be affected by
dispensing with the
knowledge requirement and what the extent of their exclusion would
be. That is a puzzling omission. The purpose
of the exclusion of the
knowledge requirement is said to be the enhancement of efficiency,
both administratively and financially,
in the assessment,
investigation and payment of claims. Section 23(1) of the RAF Act
was introduced in 1996. Before its introduction
road accident
compensation legislation had, for approximately half a century,
contained condonation provisions for late claims.
This position
changed under the Multilateral Motor Accidents Vehicle Accident Fund
Act
117
where, as a result of Proclamation 102 of 1991,
118
the provisions that allowed for an application to court for
condonation, if the claim was filed outside the stipulated three

year period, were deleted. The RAF Act followed the amended
formulation in section 23(1).
130]
There is no evidence before us that those provisions materially
contributed to the inefficiency of previous legislation and
led to
the exclusion of the knowledge requirement. What one can deduce from
the dire warnings of financial and administrative
collapse put
before this Court, is that if it is the purpose of the change to
enhance administrative and financial efficiency
in dealing with
claims, it has had little effect in the twenty years since its
introduction, there are still backlogs and there
are financial
difficulties. Their cause has not been explained. Had the causes
been explained it might have been possible to
assess the
reasonableness of the limitations in section 23(1) as one of a
number of measures that could have been taken to alleviate
the
backlogs. As things stand, there is no rational explanation before
us why the change was necessary. In my judgment, the justification

already fails at this juncture. But there are further reasons to
reject it.
131] As
indicated earlier, however, it should be abundantly clear that the
dispensing of the knowledge requirement would primarily
have an
effect on the socio-economically disadvantaged segment of the
population. There is no recognition or reference to this
in the
facts and policies advanced in justification of the limitation. I
find this failure disappointing and disquieting in public

authorities responsible for social legislation such as the RAF Act.
Justification for the exclusion of a knowledge requirement
would
perhaps be rational and reasonable if the benefits of the Act
accrued only to literate, educated people who could be expected
to
be aware of the facts which entitle them to claim from the RAF. But
the bulk of people who stand to benefit from the RAF Act’s

provisions are not in that privileged position. The RAF and the
Minister must have been aware of that situation.
132] If
the change in the legislation (dispensing with the knowledge
requirement and not allowing condonation) was initiated because
of
an assessment that it would materially relieve administrative and
financial burdens, it implies that a significant and
socio-economically
disadvantaged segment of the population were late
in lodging their claims under the previous dispensation. An
exclusion based
on that premise “cannot be said to be
reasonable” in the words of Yacoob J,
119
stated in a different but nevertheless analogous context. If, on the
other hand, there was nothing material to fear from late
claims as
far as administrative and financial burdens were concerned, there is
and was no rational reason for the legislative
change. In my
judgment this is the fundamental conundrum created by the RAF and
Minister’s attempted justification. I see
no escape from it.
133] In
argument counsel for the RAF and the Minister took the route that
dispensing with the knowledge requirement was justified
because
realistically the three year period meant that anyone would be able
to gain the necessary knowledge within that generous
period. That
argument, as explained earlier, begs the real question: what is the
acceptable time period within which someone
who gains the necessary
knowledge must lodge the claim? Mr Mdeyide had six months less time
to do so than someone would have
had who knew the law well when the
accident happened. I do not find it inconceivable that others, worse
off in terms of education,
literacy and access to advice, in more
remote areas, would take longer than he did to acquire the necessary
knowledge, or even
that in exceptional cases knowledge may only be
acquired after the claim has prescribed. Different facts might show
that the
acquisition of the necessary knowledge to enable the
lodging of a claim means that different time periods will be
available to
lodge the claim: two-and-a-half years for Mr Mdeyide;
or two years, or one-and-a-half years, or one year, or six months,
for
others; perhaps even no time at all for the exceptional cases.
134] I
think that it is difficult to justify on non-discriminatory grounds
why Mr Mdeyide should have six months less time to
lodge his claim
after he gains knowledge that he is capable of doing so, than a
person who has better access to education and
means to gain that
knowledge. This difficulty will simply increase as less time might
be available in other cases. The provisions
of section 23(1) of the
RAF Act not only allow the Fund to escape from having to face up to
these difficult questions, they prevent
affected persons like Mr
Mdeyide from approaching the courts to decide these eminently
justiciable issues.
135] The
RAF and the Minister paint a grim picture of how difficult it would
be, administratively and financially, if each case
that comes before
the RAF has to be investigated in order to check when the claimant
gained knowledge. A fixed start and end
to the period within which
the claim is lodged is said to be necessary to obviate these
difficulties and would also help to preclude
false claims of lack of
knowledge. The justification advanced is not sufficiently cogent to
warrant a limitation of the right
of access to courts in a
fundamental way. Even if I were persuaded that the difficulties
adverted to are of sufficient substance
(which I am not), there is
little in the papers setting out why the retention of the fixed
period within which to lodge the claim
from the date when the cause
of action arose (the date of the accident) together with an
exceptional condonation procedure for
an applicant who alleges lack
of knowledge, is impracticable.
136] That
approach may reduce the administrative difficulties and costs
associated with a delay at the start of proceedings. Condonation

requirements may legitimately be formulated and structured to ensure
that only factors relating to individual lack of knowledge
may
justify condonation (and not any dilatory conduct on the part of
legal representatives) to prevent the possibility of fraud.
I do not
think the right of access to courts can legitimately be denied on
the ground that the judicial process is unable to
detect fraud and
false claims. I do not think the practice in our courts remotely
justifies that kind of assertion.
137] In
short, I consider that there are other less restrictive means
available to alleviate the perceived administrative and
financial
burdens that the RAF and the Minister rely on to justify the
limitations imposed upon the right of access to court.
This
consideration, on its own, is not conclusive, but it is nevertheless
one of the factors to be considered in the justification
analysis.
120
Summary
and conclusion
138] The
right of access to court under section 34 of the Constitution is of
fundamental importance to ensure that concrete expression
is given
to the foundational value of the rule of law. Section 23(1) of the
RAF Act limits this fundamental right as follows:
By
negating an essential part necessary for the exercise of the right
of access, namely knowledge of the facts grounding a justiciable

claim;
To the extent that it does not fully negate knowledge as part of the
right of access, by preventing access to courts on the issue
whether
sufficient time is granted to lodge a claim after such knowledge has
been acquired; and
By precluding enforcement of the claim after three years from the
date upon which the cause of action arose.
139] The
stated purpose of the limitations is to relieve the administrative
and financial burdens of the RAF, thereby curbing
spending of social
resources. However, on the justification offered in the papers and
argument, there is no rational relation
between the limitations and
their stated purpose. If the limitations were necessitated by the
cost of a substantial number of
late claims under condonation
provisions of previous legislation, it would mean that the
limitations sought to exclude a significant
segment of society from
the benefits of social legislation and that the most likely segment
of the population so excluded would
be socio-economically
disadvantaged people. That would not be reasonable and justified in
an open democracy based on human dignity,
equality and freedom. If
the limitations were or are not necessitated by the potential cost
of a large number of late claims
there is no need for them.
140] To
the extent that the limitations do serve their purpose by ensuring
that only a potentially small number of people may
not be able to
acquire the necessary knowledge during the three year prescription
period, they are overbroad in effect by excluding
judicial control
over exceptional cases completely. Less restrictive means are able
to achieve the purpose.
141] The
difficulty with the provision is the absence of a knowledge
requirement, combined with the absence of a condonation provision.

It is this that renders the provision too inflexible to be
justified.
142] In
the result I would hold that the provisions of section 23(1) are
unconstitutional.
Jafta J
and Yacoob J concur in the judgment of Froneman J.
Counsel for the First Applicant:
Advocate Beyleveld SC and Advocate S Budlender iby Bell Dewar Inc.
Counsel for the Second Applicant: Advocate Beyleveld SC and Advocate
S Budlender instructed
by the State Attorney,
Johannesburg.
Counsel for the Respondent: Advocate V Soni SC and Advocate S Louw
instructed by Niehaus, McMahon & Oosthuizen.
1
According
to section 1(c) of the Constitution, the Republic of South Africa is
a sovereign democratic state founded on the values
of, inter alia,
supremacy of the Constitution and the rule of law.
2
Section
34 of the Constitution 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.”
3
68
of 1969.
4
56
of 1996.
5
See
section 23(1), quoted in [14] below.
6
See
above n 2.
7
See
sections 1(a) and 7(2) of the Constitution. The right to human
dignity is furthermore protected in section 10.
8
On
the evolution of prescription in South African law, see Saner
Prescription
in South African Law
(Butterworths,
Durban 1996) 3-3
et
seq
.
On prescription in general, see Loubser
Extinctive
Prescription
(Juta,
Kenwyn 1996) (
Extinctive
Prescription)
as
well as “Towards a Theory of Extinctive Prescription”
(1988) 105
SALJ
34.
9
See,
for example,
Standard
Bank of S.A. Ltd v Neethling, NO
1958
(2) SA 25
(CPD) at 30A.
10
See
Mohlomi
v Minister of Defence
[1996]
ZACC 20
;
1997 (1) SA 124
(CC);
1996 (12) BCLR 1559
(CC) at para 11.
See also
Engelbrecht
v Road Accident Fund and Another
[2007]
ZACC 1
;
2007 (6) SA 96
(CC);
2007 (5) BCLR 457
(CC)
at
para 29 and
Brümmer
v Minister for Social Development and Others
[2009]
ZACC 21
;
2009 (6) SA 323
(CC);
2009 (11) BCLR 1075
(CC)
at
paras 64-7.
11
Section
10(1)
of the
Prescription Act states
:
“
. . . 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.”
12
See
Barnett
and Others v Minister of Land Affairs
and
Others
2007
(6) SA 313
(SCA);
2007 (11) BCLR 1214
(SCA) at para 19 and
Desai
NO v Desai
and
Others
[1995] ZASCA 113
;
1996
(1) SA 141
(SCA) at 146H. Further see
section 1
of the
Institution
of Legal Proceedings Against Certain Organs of State Act 40 of 2002
for a similarly broad definition of debt, with the additional
requirement that the debt must be owed by an organ of state:
“‘
debt’ means any
debt arising from any cause of action—
which arises from delictual, contractual or any other
liability, including a cause of action which relates to or arises
from
any—
(i) act performed under or in terms of any law; or
(ii) omission to do anything which should have been
done under or in terms of any law; and
(b) for which an organ of state is liable for payment
of damages . . . .”
13
This
issue was raised for instance in
Njongi
v MEC, Department of Welfare, Eastern Cape
[2008]
ZACC 4
;
2008 (4) SA 237
(CC);
2008 (6) BCLR 571
(CC), where this
Court raised but ultimately left open the question of whether a
constitutional obligation could be considered
a debt. In
Boundary
Financing Ltd
v
Protea Property Holdings (Pty) Ltd
2009
(3) SA 447
(SCA) at para 13, it was held that a claim for
rectification of a contract was not a debt in terms of the
Prescription Act.
14
The
relevant part of
section 11
of the
Prescription Act provides
:
“
The periods of prescription
of debts shall be the following:
. . . .
(d) save where an Act of Parliament provides otherwise,
three years in respect of any other debt.”
15
For
the wording of section 23(1), see [14] below.
16
Deloitte
Haskins & Sells Consultants (Pty) Ltd v Bowthorpe Hellerman
Deutsch (Pty) Ltd
[1990] ZASCA 136
;
1991
(1) SA 525
(SCA) at 532G.
17
The
relevant subsections of section 12 of the Prescription Act provide:
“
(1) Subject to the provisions
of subsections (2), (3), and (4), prescription shall commence to run
as soon as the debt is due.
. . . .
(3) 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.”
18
Section
13 of the Prescription Act states:
“
(1) If—
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
the
debtor is outside the Republic; or
the
creditor and debtor are married to each other; or
the
creditor and debtor are partners and the debt is a debt which arose
out of the partnership relationship; or
the
creditor is a juristic person and the debtor is a member of the
governing body of such juristic person; or
the
debt is the object of a dispute subjected to arbitration; or
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
the
creditor or the debtor is deceased and an executor of the estate in
question has not yet been appointed; and
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).”
19
Section
17 of the RAF Act establishes the liability of the Fund and the
relevant parts provide:
“
(1) The Fund or an agent
shall—
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;
. . . .
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: Provided that the obligation of the Fund to
compensate a third party for non-pecuniary loss shall be limited
to
compensation for a serious injury as contemplated in subsection (1A)
and shall be paid by way of a lump sum.”
20
Subsection
23(2) of the RAF Act states:
“
Prescription of a claim for
compensation referred to in subsection (1) shall not run against—
a minor;
any person detained as a patient in terms of any mental
health legislation; or
a person under curatorship.”
In
this regard, see
Road Accident Fund v Smith NO
[1998] ZASCA 86
;
1999
(1) SA 92
(SCA);
[1998] 4 All SA 429
(A) at 102A-B.
21
See
above n 17 for the wording of this section.
22
See
[14] above for the wording of section 23(1).
23
See,
for example,
McKenzie
v Farmers’ Co-operative Meat Industries Ltd
1922
AD 16
at
23, confirmed in
Truter
and Another v Deysel
[2006] ZASCA 16
;
2006
(4) SA 168
(SCA) at para 19.
24
See
above n 19 for the wording of section 17 of the RAF Act.
25
Vusumzi
Mdeyide v The Road Accident Fund Case No. EL 91/2004, 3 October
2006, unreported.
26
Road
Accident Fund v Mdeyide (Minister of Transport, Intervening)
[2007]
ZACC 7
;
2008 (1) SA 535
(CC);
2007 (7) BCLR 805
(CC) at paras 5-23.
27
Section
16(1) defines the ambit of the provisions of the
Prescription Act:
“
Subject to the provisions of
subsection (2)(b), the provisions of this chapter shall, save in so
far as they are inconsistent
with the provisions of any Act of
Parliament which prescribes a specified period within which a claim
is to be made or an action
is to be instituted in respect of a debt
or imposes conditions on the institution of an action for the
recovery of a debt, apply
to any debt arising after the commencement
of this Act.”
28
The
High Court used both the terms “infringed” and
“limited”.
29
Section
36(1) states:
“
The rights in the Bill of
Rights may be limited only in terms of law of general application to
the extent that the limitation
is reasonable and justifiable in an
open and democratic society based on human dignity, equality and
freedom, taking into account
all relevant factors, including—
the
nature of the right;
the
importance of the purpose of the limitation;
the
nature and extent of the limitation;
the
relation between the limitation and its purpose; and
less
restrictive means to achieve the purpose.”
30
See
above n 25 at para 52.
31
See
Road
Accident Fund v
Mdeyide
above
n 26 at paras 35-46.
32
For
the wording of section 23(1) and (2) see [14] and n 20 above.
33
They
rely especially on
Mohlomi
v Minister of Defence
n
10 above.
34
The
term “limitation” is used in this judgment. In its
previous jurisprudence this Court has employed a form of the
verb
“to limit” when referring to the manner in which section
34 (or its equivalent in the interim Constitution)
is affected. See
for example
Mohlomi
above
n 10 at
paras
12-3;
Moise
v Greater Germiston Transitional Local Council: Minister of Justice
and Constitutional Development Intervening (Women’s
Legal
Centre as
Amicus
Curiae
)
[2001]
ZACC 21
;
2001 (4) SA 491
(CC);
2001 (8) BCLR 765
(CC) at paras 15-6;
Engelbrecht
above
n 10 at para 39;
Brümmer
above
n
10 at paras 48 and 56. This is also the language of section 36 of
the Constitution above n 29, which regulates the justifiability
of
limitations to the Bill of Rights. However, in
Mohlomi
terms
like “infringement”, “invasion” and
“encroachment” were also used. See also the use
of
noun-based constructions indicating that section 34 is affected,
such as for a regulation to amount to “an unconstitutional

fetter upon the access to courts for which section 34 . . . makes
provision” by the Supreme Court of Appeal, cited in
Engelbrecht
at
para 32. Academic commentators, for example Friedman and Brickhill
“Access to Courts” in Woolman et al (eds)
Constitutional
Law of South Africa
2
ed (Juta, Cape Town 2008) at 59-37 to 59-48 and Currie and De Waal
The
Bill of Rights Handbook
5
ed
(Juta, Cape Town 2005) (
Bill
of Rights Handbook
)
at 715-7 further employ terms like “infringement” and
“violation”, in addition to “limitation”.
35
See
above n 27.
36
See
Road
Accident Fund
v
Smith NO
above
n
20
at
98C.
37
Id
at 98F.
38
Terblanche
v South African Eagle Insurance Co Ltd
1983
(2) SA 501
(N).
39
Kotze
NO v Santam Insurance Ltd
1994
(1) SA 237
(C) at 246F-247J.
40
See
[14] above for the wording of section 23(1).
41
Section
23(2) provides protection for minors, persons detained on the
grounds of their mental health and persons under curatorship.
See
above n 20.
42
In
a fatal accident the cause of action arises upon the death of the
victim.
43
See
for example
Bill
of Rights Handbook
above
n 34 at 164-8 and the cases referred to therein. See above n 29 for
the wording of section 36(1). As to the use of “limitation”

and other terminology, see above n 34.
44
See
above n 10.
45
Section
113(1) of the Defence Act 44 of 1957.
46
Mohlomi
above
n 10 at para 11. Most of the reasoning in connection with the
purpose and value of prescription appears in [8] above.
47
Id
at
para 12.
48
Id.
Section 22 was the equivalent in the interim Constitution of section
34 of the Constitution.
49
Above
n 46.
50
Id
at paras 14 and 21.
51
Id
at paras 11-20.
52
In
Mohlomi
at
para 14 it appears that the conclusion that a “fair and
adequate opportunity” was not afforded was reached at the
end
of the first enquiry. In
Brümmer
above
n 10 at para 51 this test is mentioned as a part of the limitation
analysis, in other words the second enquiry. It is also
clear from
the judgments of this Court that although a two-step approach is
appropriate, the questions raised and the standards
applied may
sometimes overlap and be applicable to both. It is not always
practical to rigidly separate the two stages of the
enquiry. In
Christian
Education South Africa
v
Minister of Education
[2000]
ZACC 11
;
2000 (4) SA 757
;
2000 (10) BCLR 1051
(CC) this Court
departed from a strictly separated two-stage approach. It assumed
that rights regarding religion were limited
by a prohibition on
corporal punishment, proceeded directly to the limitation analysis
and found the limitation to be justified.
53
Moise
above
n 34.
54
Potgieter
v Lid van die Uitvoerende Raad: Gesondheid, Provinsiale Regering,
Gauteng en
Andere
[2001]
ZACC 4; 2001 (11) BCLR 1175 (CC).
55
See
above n 10.
56
Beinash
and Another v Ernst & Young and Others
[1998]
ZACC 19
;
1999 (2) SA 116
;
1999 (2) BCLR 125
(CC).
57
Section
2(1)(b) of Act 3 of 1956.
58
Above
n 56 at paras 16-9.
59
Above
n
10
at
para 51, also quoted in [68] below.
60
For
the wording of section 36(1), see above n 29.
61
See
for example
Moise
above
n
34
at
para 19. In
Minister
of Home Affairs v National Institute for Crime Prevention and the
Re-integration of Offenders (NICRO) and Others
[2004]
ZACC 10
;
2005 (3) SA 280
(CC);
2004
(5) BCLR 445
(CC) at para 34 this Court described the obligation as
“an onus of a special type.”
62
Brümmer
above
n 10 at para 51.
63
Id
at para 51.
64
In
Barkhuizen
v Napier
[2007]
ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC), in
evaluating
whether the time period was adequate, this Court considered the
applicability of the principles established in cases
relating to
statutory prescription periods to contracts between private
individuals. Ngcobo J
applied
the principles enunciated in
Mohlomi
in
enquiring whether the prescription provision of a contract satisfied
the requirements of public policy. It found the provision

stipulating a 90-day period to be constitutionally acceptable. This
case must of course be viewed in its proper context of the

short-term insurance market, the additional considerations that play
a role regarding private contracts (including the fact that
the
applicant had freely and voluntarily entered into the contract) and
the background of persons entering into those types of
contract. The
dissenting judgments by Moseneke DCJ and Sachs J are also noteworthy
for the different emphasis they lay on the
various considerations in
the matter.
65
Above
n 10 at para 14.
66
See
section 1(a) of the Constitution. To weigh competing rights and
governmental duties is not the same as the purely utilitarian

sacrificing of rights in the interest of the greater (administrative
or financial) good. It is a constitutionally mandated exercise,

which is well in accordance with the ideal of transformative
constitutionalism. On the last-mentioned, see the cases cited in
n
27 of the judgment by Froneman J, as well as Van der Westhuizen “A
Few Reflections on the Role of Courts, Government,
the Legal
Profession, Universities, the Media and Civil Society in a
Constitutional Democracy” (2008) 8
African
Human Rights Law Journal
251
at 256-7, with reference to the works of Klare, Liebenberg, Langa
and others.
67
See
Mohlomi
and
Engelbrecht
above
n
10
;
Moise
above
n
34
;
Potgieter
above
n
54
.
68
See
section 24(1) of the RAF Act for the procedure. As to
Mohlomi
,
see above n
10
.
The report of the Satchwell Commission, or Road Accident Fund
Commission, referred to in the judgment of Froneman J was not
placed
before this Court and no argument on it was presented.
69
See
[18]-[20] and [47]-[50] above, as to the differences between the
Prescription Act and
the RAF Act.
70
See
above n 10
at
para 13.
71
68
of 1995.
72
Above
n
10
at
para 51.
73
Id
at paras 51-2.
74
Id
at para 51.
75
See
Act 68 of 1969 as a whole. The common law does not provide for
condonation as such. See
Extinctive
Prescription
above
n 8.
76
As
to section 1 of the Canadian Charter of Rights and Freedoms,
containing some similar wording as section 36 on the limitation
of
rights, see Hogg
Constitutional
Law of Canada
5
ed Supplemented (Thomson/Carswell, Toronto 2007) 38-17 at 38.8(b).
See also
Illinois
Elections BD v Socialist Workers’ Party
[1979] USSC 27
;
440
US 173
, 188-9 (1979). This was quoted by O’Regan J and Cameron
AJ in their dissent in
S
v Manamela and Another (Director-General of Justice Intervening)
[2000]
ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC) at para 94 and
not disavowed by the majority.
77
Above
n 10 at para 14. Also quoted in [70] above.
78
Above
n 10 at para 51.
79
Above
n 26 at para 11.
80
Biowatch
Trust v Registrar, Genetic Resources, and Others
[2009]
ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC).
81
Brümmer
v Minister for Social Development and Others
[2009]
ZACC 21
;
2009 (6) SA 323
(CC);
2009 (11) BCLR 1075
(CC) at para 61
and
Chief
Lesapo v North West Agricultural Bank and Another
[1999]
ZACC 16
;
2000 (1) SA 409
(CC);
1999 (12) BCLR 1420
(CC) at para 16.
82
For
the difference see
Hartman
v Minister van Polisie
1983
(2) SA 489
(A) at 492C-493A.
83
Loubser
“Towards a Theory of Extinctive Prescription”
(1988) 105
SALJ
34
at 52-3.
84
Brümmer
above n 1 at para 51 and
Mohlomi
v Minister of Defence
[1996]
ZACC 20
;
1997 (1) SA 124
(CC);
1996 (12) BCLR 1559
(CC) at paras 12
and 14. See also
Engelbrecht
v Road Accident Fund and Another
[2007]
ZACC 1
;
2007 (6) SA 96
(CC);
2007 (5) BCLR 457
(CC);
Barkhuizen
v Napier
[2007]
ZACC 5
;
2007 (5) SA 323
(CC);
2007 (7) BCLR 691
(CC) and
Moise
v Greater Germiston Transitional Local Council
:
Minister
of Justice and Constitutional Development Intervening (Women’s
Legal Centre as
Amicus
Curiae
)
[2001]
ZACC 21
;
2001 (4) SA 491
(CC);
2001 (8) BCLR 765
(CC)
.
85
68
of 1969.
86
Section
12 in relevant part provides:
“
(1) Subject to the provisions
of subsections (2), (3), and (4), prescription shall commence to run
as soon as the debt is due.
. . . .
(3) 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.”
87
Section
3(3)(a)
of the
Institution of Legal Proceedings Against Certain
Organs of State Act 40 of 2002
;
section 27(3)(a)(ii)
of the
Financial Advisory and Intermediary Services Act 37 of 2002
; section
7(1)(b) of the Promotion of Administrative Justice Act 3 of 2000
(PAJA) and
section 34(2)
of the
National Nuclear Regulator Act 47 of
1999
.
88
Brümmer
above
n 1
at
para 52 and
Mohlomi
above
n 4
at
para 19.
89
Section
3(4)
of the
Institution of Legal Proceedings Against Certain Organs
of State Act; section
9(2) of the PAJA;
section 191(2)
of the
Labour
Relations Act 66 of 1995
; section 96(1)(c)(ii) of the Customs and
Excise Act 91 of 1964 and section 344(3) of the Merchant Shipping
Act 57 of 1951.
90
56
of 1996. Section 23(1) provides that:
“
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.”
91
Mohlomi
above
n 4 at para 19.
92
Woolman
and Botha “Limitations” in Woolman
et
al (eds)
Constitutional
Law of South Africa
vol
2 at 34-17.
93
Above
n 4.
94
Above
[59]. On the two-stage analysis see
S
v Makwanyane and Another
[1995]
ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 100;
Bernstein
and Others v Bester and Others NNO
[1996]
ZACC 2
;
1996 (2) SA 751
(CC);
1996 (4) BCLR 449
(CC) at para 71;
Coetzee
v Government of the Republic of South Africa; Matiso and Others v
Commanding Officer, Port Elizabeth Prison, and Others
[1995]
ZACC 7
;
1995 (4) SA 631
(CC);
1995 (10) BCLR 1382
(CC) at para 9 and
S
v Zuma and Others
[1995]
ZACC 1
;
1995 (2) SA 642
(CC);
1995 (4) BCLR 401
(CC) at para 21.
95
See
Chief
Lesapo
above
n 1 at para 22. Compare
Jaftha
v Schoeman and Others; Van Rooyen v Stoltz and Others
[2004]
ZACC 25
;
2005 (2) SA 140
(CC);
2005 (1) BCLR 78
(CC) at para 55.
96
Above
n 1 at para 51.
97
National
Coalition for Gay and Lesbian Equality and Others v Minister of Home
Affairs and Others
[1999] ZACC 17
;
2000 (2) SA 1
(CC);
2000 (1) BCLR
39
(CC) at para 28;
Member
of the Executive Council for Development Planning and Local
Government; Gauteng v Democratic Party and Others
[1998]
ZACC 9
;
1998 (4) SA 1157
(CC);
1998 (7) BCLR 855
(CC) at para 64 and
Ferreira
v Levin NO and Others; Vryenhoek and Others v Powell NO and Others
[1995]
ZACC 13
;
1996 (1) SA 984
(CC);
1996 (1) BCLR 1
(CC) at para 26. See
also
Shaik
v Minister of Justice and Constitutional Development and Others
[2003]
ZACC 24
;
2004 (3) SA 599
(CC);
2004 (4) BCLR 333
(CC).
98
Mohlomi
above
n 4 at para 14.
99
Road
Accident Fund Commission, established in terms of the
Road Accident
Fund Commission Act 71 of 1998
, appointed 1 June 1999, Report
Published 2002. These findings do not appear to me to be
contentious.
100
Above
n 19 vol 1 at 150 para 7.53.
101
Id
at 150-1 paras 7.53-7.58 titled
Ignorance
of the Scheme
:
“
The research project
conducted by Research Surveys (Pty) Limited reveals that general
awareness of the scheme of road accident
compensation is currently
restricted to less than half (47%) of the South Africa public. The
white and Asian population groups
are the most aware and it is noted
that these figures correlate directly with car ownership statistics.
Awareness of the Fund
tends to escalate with an increase in
household income levels and Living Standards Measure (LSM). There
was greater awareness
in metropolitan and small urban areas than in
rural areas.
Road users’ own claimed understanding of the
scheme of road accident compensation was rated as "very
limited"
although those who had previously claimed compensation
rated their own understanding closer to "quite good".
Of those respondents who claimed awareness of the Fund
78% knew that the Fund was responsible for accident compensation but
only
2% knew the type of damages payable and only 5% knew that the
scheme was funded by the fuel levy.
When provided with a set of statements road users who
claimed awareness of the RAF acknowledged that compensation would be
offered
to injured passengers and pedestrians (85% and 70%); that
drivers who were injured in an accident but not at fault would be
compensated
(54%) and that the Fund would not compensate a driver
where no other motor vehicle was involved (81%). There was
significant
awareness that the Fund will not compensate a driver at
fault (81%) and that compensation is not provided to effect repairs
to
a motor vehicle (89%).
However, the researchers comment:
‘
Those who have previously
claimed do not seem to have a much greater or more correct
understanding of the Fund. Their perceptions
mirror those of the
general population who are aware of the Fund …’
It appears that one of the main barriers to claiming
compensation from the RAF is the limited awareness of the Fund and a
lack
of knowledge about the current scheme of accident compensation.
Approximately two-thirds (66%) of road users who are eligible to

have claimed for compensation in that they had been injured in a
road accident have never claimed from the Fund. Approximately

one-third of that group was unsure of how to claim.”
102
Id
at 151 para 7.58.
103
Id
at 155 para 7.78.
104
Section
36(1) of the Constitution states:
“
The rights in the Bill of
Rights may be limited only in terms of law of general application to
the extent that the limitation
is reasonable and justifiable in an
open and democratic society based on human dignity, equality and
freedom, taking into account
all relevant factors, including—
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its
purpose; and
(e) less restrictive means to achieve the purpose.”
105
Brümmer
above
n 1 at para 59. See also
S
v Manamela and Another (Director-General of Justice Intervening)
[2000]
ZACC 5
;
2000 (3) SA 1
(CC);
2000 (5) BCLR 491
(CC) at paras 33 and
65;
Mohlomi
above
n 4 at para 15;
Moise
above
n 4 at paras 18-9 and
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 paras 20-1.
106
Section
23(2) of the RAF Act provides that:
“
Prescription of a claim for compensation
referred to in subsection (1) shall not run against—
(a) a minor;
(b) any person detained as a patient in terms of any
mental health legislation; or
(c) a person under curatorship.”
107
Hassam
v Jacobs NO and Others
[2009]
ZACC 19
;
2009 (11) BCLR 1148
(CC) at para 28;
Biowatch
Trust v Registrar, Genetic Resources, and Others
[2009]
ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) at para 17;
Bato
Star Fishing (Pty) Ltd v Minister of Environmental Affairs and
Others
[2004]
ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) at paras 73-4;
Minister
of Finance and Another v Van Heerden
[2004]
ZACC 3
;
2004 (6) SA 121
(CC)
;
2004
(11) BCLR 1125
(CC)
at
para 142 and
Makwanyane
above
n 14 at para 262. See also Liebenberg
Socio-Economic
Rights: Adjudication Under a Transformative Constitution
(Juta,
Cape Town 2010) 34-42.
108
Sections
25-28 of the Constitution.
109
The
Constitution states in section 1(a):
“
The Republic of South Africa
is one, sovereign, democratic state founded on the following values:
(a) Human dignity, the achievement of equality and the
advancement of human rights and freedoms.”
Section 7(1) states:
“
This Bill of Rights is a
cornerstone of democracy in South Africa. It enshrines the rights of
all people in our country and affirms
the democratic values of human
dignity, equality and freedom.”
See
also
Government of the Republic of South Africa and Others v
Grootboom and Others
[2000] ZACC 19;
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) at para 23.
110
Starting
with the Motor Vehicle Insurance Act 29 of 1942 and then followed by
the Compulsory Motor Vehicle Insurance Act 56 of
1972; Motor Vehicle
Accident Act 84 of 1986 and the Multilateral Motor Vehicle Accidents
Fund Act 93 of 1989.
111
Engelbrecht
above
n 4 at para 23 citing
Aetna
Insurance Co. v Minister of Justice
1960
(3) SA 273
(A) at 285E-F.
112
Grootboom
above
n 29.
113
Id
at
para
43.
114
Id
at para 44.
115
Mazibuko
and Others v City of Johannesburg and Others
[2009]
ZACC 28
;
2010 (4) SA 1
(CC);
2010 (3) BCLR 239
(CC) at para 67 and
Potgieter
v Lid van die Uitvoerende Raad: Gesondheid, Provinsiale Regering,
Gauteng en Andere
[2001]
ZACC 4
;
2001 (11) BCLR 1175
(CC) at para 7.
116
Prominent
thinkers in other democratic societies regard it as just that the
advancement of a society should not come at the cost
of the most
vulnerable. See Rawls
Political
Liberalism
Expanded
Edition (Columbia, New York 2005) 282-4 and Rawls
A
Theory of Justice
Revised
Edition (Oxford University Press, New York 1999) 3-4. But
justification analysis under section 36 is not a theoretical
or
philosophical exercise seeking ideal justice. It allows so-called
‘non-commensurable’ comparisons: compare Sen
The
Idea of Justice
(Harvard
University Press, Cambridge 2009) 239-40 and 254-7.
117
93
of 1989.
118
GN
13597, 1 November 1991.
119
Grootboom
above
n 29 at para 43.
120
Section
36(e) of the Constitution expressly requires consideration of
whether less restrictive means are available. It is the
duty of this
Court to give serious and proper attention to that enquiry.