Key Constitutional Court Ruling: Prescription Period Does Not Begin Upon Curator Appointment

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In a recent judgment, the Constitutional Court considered an application for leave to appeal from the Supreme Court of Appeal ("SCA"). The application was instituted by Shoprite Checkers (Pty) Ltd
South Africa Litigation, Mediation & Arbitration

In a recent judgment, the Constitutional Court considered an application for leave to appeal from the Supreme Court of Appeal ("SCA"). The application was instituted by Shoprite Checkers (Pty) Ltd ("Shoprite") against Cecil Tshepo Mokopane Mafate N.O ("Mr Mafate"). Mr Mafate was the court appointed curator ad litem of Ms Nolunga Mkhwanazi ("Ms Mkhwanazi")

Ms Mkhwanazi worked as a packer for Smollan Sales and Marketing which offers merchandising services at retail stores. On 15 October 2014, Ms Mkhwanazi was doing merchandising work at Checkers Hyper at the Meadowdale Mall in Edenvale. Her job entailed being lifted high up in a cage that was attached to a forklift to enable her to pack merchandise on high-up shelves. Whilst a few metres up, the cage tilted resulting in Ms Mkhwanazi falling off and landing on the floor. As she lay on the floor, the cage fell on her, hitting her on her head. The severe head injury sustained by her resulted in permanent mental incapacity.

On 1 February 2017, Mr Mafate was appointed as curator ad litem to prosecute a damages claim on behalf of Ms Mkhwanazi. Mr Mafate instituted a delictual claim against Shoprite Holdings Limited on 22 February 2017 in the Johannesburg High Court. On 28 July 2017, Shoprite Holdings Limited delivered a special plea which raised misjoinder and non-joinder. Shoprite Holdings Limited pleaded that the Checkers Hyper at the Meadowdale Mall in Edenvale did not belong to it, but to Shoprite Checkers. In the special plea, Shoprite Holdings Limited explained that Shoprite Checkers was its wholly owned subsidiary. Subsequently, on 28 June 2018, Mr Mafate withdrew the action against Shoprite Holdings Limited and on 19 October 2018, he served a new summons on Shoprite Checkers.

Shoprite Checkers, by way of a special plea, raised a defence that the claim had prescribed on the basis that a year had elapsed since the appointment of Mr Mafate as curator ad litem. In this regard, Shoprite Checkers relied on paragraph (i) read with paragraph (a) of section 13(1) of the Prescription Act, 1969. Section 13(1)(a)(i) of the Prescription Act provides that for as long as a person falls under the categories set out in paragraphs (a) to (h) (which deal with impediments and which include, in paragraph (a), affliction with mental incapacity and being a person under curatorship), their claim will not prescribe because the period of prescription will not be completed. The period of prescription will be completed only upon the expiry of a period stipulated in section 13(1). The stipulated period is reckoned from the date of cessation of the relevant impediment.

Shoprite Checkers argued that the appointment of Mr Mafate as curator ad litem constituted a cessation of the impediment of mental incapacity. This is because a curator ad litem made it possible for the delictual claim to be instituted. According to Shoprite Checkers, the relevant impediment had thus ceased. Therefore Shoprite Checkers argued that the prescription period had lapsed by 15 October 2018, including the additional period of a year stipulated in section 13(1) of the Prescription Act. The result was that the claim had prescribed.

In response, Mr Mafate contended that the running of prescription was interrupted by the service of process on Shoprite Checkers on 19 October 2018, and that less than three years had lapsed since the debt became due within the meaning of section 12(3). Section 12(3) provides that "[a] debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt arises: Provided that a creditor shall be deemed to have such knowledge if he could have acquired it by exercising reasonable care." Mr Mafate contended that he acquired knowledge of the identity of the debtor only after Shoprite Holdings Limited had raised the defences of misjoinder and non-joinder.

The Constitutional Court in considering the matter considered section 13(1) of the Prescription Act which, in the relevant part, is set out below

"If—

(a) the creditor ...... 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);

(i) the relevant period of prescription would, but for the provisions of this subsection, be completed before or on, or within one year after, the day on which the relevant impediment referred to in paragraph (a) ,,,,,,,,,, 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)."

The Constitutional Court also considered sections 12(1) and 12(3) of the Prescription Act. These subsections provide that prescription begins to run as soon as the debt is due and that the debt is deemed to be due once the creditor has knowledge of the identity of the debtor and of the facts giving rise to the debt respectively. In this regard, the Court explained that where the creditor has immediate knowledge of the identity of the debtor and the facts from which the debt arises, the debt becomes due immediately. However, where that is not the case, the debt will become due at a later date, which will be when the creditor acquires actual knowledge of the two categories of mentioned factual material.

The Court went on to explain that in respect of people with mental incapacity, it was clear that paragraph (i) of section 13(1) provided a notional date of commencement of the running of prescription. This was only because paragraph (i) refers to a time when, but for an impediment referred to in paragraphs (a) the period of prescription would have been completed. According to the Constitutional Court there could not be "completion" without commencement, even if the commencement was notional.

The Constitutional Court went on to explain that if on or before the date of cessation of the impediment, the period of prescription would have been completed, the claimant has only a year – not three years – within which to institute proceedings. Even where the period of prescription would have been completed within a year after the impediment had ceased, the claimant still has a year from the date of cessation of the impediment to bring an action. If, by the date of cessation of the impediment, the period still remaining was more than a year, the claim must be instituted within that remaining period.

The Constitutional Court thereafter considered Ms Mkhwanazi's condition, which the parties had agreed fell within the provisions of section 13(1)(a) of the Prescription Act. The Constitutional Court disagreed with the interpretation advocated by Shoprite Checkers, which was that upon the appointment of the curator ad litem, Ms Mkhwanazi's impediment ceased to exist and that the curator ad litem could have instituted proceedings on her behalf. According to the Court, the interpretation suggested by Shoprite Checkers would leave the person the Act was intended to protect in a more vulnerable position. In particular the Court stated that any benefits that may be derived from the appointment of a curator ad litem is not reason enough to divest a person with mental incapacity of the continued protection that section 13(1) of the Prescription Act provides.

The application was therefore dismissed with costs.

The main purpose of the Prescription Act is to ensure debtors are protected from old claims, which debtors may not be able to defend effectively due to the effluxion of time. However, in the above judgment, the Constitutional Court highlighted that a balance needs to be struck between those debtors rights and the rights of people who are mentally incapacitated. In this regard, the Constitutional Court has interpreted section 13(1) of the Prescription Act in a manner that ensures that whilst a person is mentally incapacitated, their rights remain protected, until such a time that incapacity ceases to exist.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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