In South Africa, generally, prescription is regulated by the Prescription Act 68 of 1969 and in delictual, contractual (or any other liability), the prescription period is three years. The Prescription Act also delineates when prescription commences and how can it be interrupted. Sometimes, particularly in medical malpractice matters, the lines may be blurred as to when prescription commences. In RAF matters, the Road Accident Fund Act regulates its own prescription periods and the pertinent provision in this regard is Section 23. In terms of the provision, the claim “shall prescribe upon the expiry of a period of three years from the date upon which the cause of action arose”. Section 23(3) provides that “[N]o claim which has been lodged in terms of section 17(4)(a) or 24 shall prescribe before the expiry of a period of five years from the date on which the cause of action arose.” The SCA, in the matter of Masindi vs RAF, and, subsequently, the Pretoria High Court, in the matter of Gabuza vs RAF, the courts were faced with an intricate situation where, plainly put, they had to decide whether to deprive claimants few days (from the prescribed three years) or grant an extra day, in favour of the claimants.
In Masindi, the claimant, and her minor child, had suffered injuries as a result of a motor vehicle collision which occurred on 17 June 2009 and she, subsequently, instituted an action against the RAF in June 2014. The last day to issue summons fell on a Monday, 16 June 2014 which is a public holiday and, thus, the court was closed. The main issue for determination was how the five-year prescription period was to be computed where the last day of the five-year period fell on the day when the court is closed, so the summons could not be issued and served. The high court had dismissed the Special Plea of prescription, as raised by the RAF. It held that a strict and literal application of Section 23 would lead to injustice and, that, would not have been the consequence purported by the legislature. The SCA upheld the high court’s decision and developed the law, in accordance with the dictation of the Constitution of the Republic of South Africa, 1996, Section 39.
Almost three months after the SCA’s decision in Masindi, the Pretoria High Court heard and delivered a judgement in an almost similar case, in the matter of Gabuza vs RAF. The difference between Masindi and Gabuza is that, with the latter case, the issue was about the alleged late lodging of the claim with the RAF and not with issuing and service. In Gabuza, the collision occurred on 22 March 2012 and was lodged on 23 March 2015. Thus, the last day for lodging would have been 21 March 2015, which fell on a Saturday. Even more interesting, Section 24 of the RAF Act stipulates two alternative methods of lodging i.e. via registered post and by hand. It was argued on behalf of the RAF that the claimant could still have lodged via registered post on a Saturday, 21 March 2015. The court, albeit accepting that the three-year period of lodging lapsed on 21 March 2019, it considered the practical reality that in South Africa, Post Offices close at 13h00 on Saturdays and the ensuing impossibility to lodge a claim for the remainder of the day that would equal the normal hours of an ordinary work-day. Against this background, the court adopted the Masindi case principle i.e. the next working day is the last day to lodge.
From the two abovementioned cases, it seems as though the courts are inclined to grant claimants a further day or days than depriving them a day or few days. In the matter of Masindi, had the court held that the last day for issuing and serving was Friday, 13 June 2014, the claimant would have been deprived of at least three days and, thus, her matter would have prescribed before a “complete lapse” of five years. A similar result would have ensued in Gabuza, had the high court held otherwise – though the claimant had some hours to lodge the claim on the exact last day.
It may, correctly so, be argued that the courts’ decisions disregard the purpose of the prescribed prescription periods. In the matter of RAF and Another vs Mdeyide, the Constitutional Court elaborated, in detail, the functions of statutory time limits (prescription periods) and held that, inter alia, the prescription periods bring about certainty and stability to social and legal affairs and helps maintain quality of adjudication. Further, the fact of the matter is, in these two cases, when the claimant issued and served (in Masindi) and lodged (in Gabuza), the statutory time periods had lapsed and yet, they had three and five years, respectively, to attend to the necessary, in order to comply with the statutory time limits. Furthermore, the approach adopted in these matters has the effect, particularly in South Africa where there are so many public holidays, of affording claimants almost a further week to lodge or issue and serve and, thus, there is a solid ground upon which the stance adopted by the courts in the these two matters may be opposed.
On the other hand, the courts raised pressing justifications for their respective decisions. In Masindi, the court took cognisance of the purpose of statutory time limits and balanced that with the constitutional right, access to courts, in terms of Section 34. It also highlighted the absurd ramification of deciding otherwise i.e. the potential claimant could not be able to claim from the Fund. It further explained that the RAF Act is a social legislation and, against this fact, adopted a purposive approach. In line with Section 39 of the Constitution, the SCA had regard to foreign law, English law. It proceeded to mention that the aim should be to protect the right afforded to the claimants in terms of Section 34 and that, failure to issue summons was a question of impossibility to perform and the impossibility was not of the claimant’s own doing nor created by her, but the law. To hold otherwise, so the court proceeded, would lead to injustice. Many would probably be more inclined to accept the courts’ decisions because, firstly, to deprive the claimants a day or few days would not be in accordance with the prescription provisions of the RAF Act and, the Constitution. Secondly, the claimant cannot be penalised for the court’s closure – that is not within his/her power. Thus, the courts’ decisions may be applauded for these reasons.
In light of these matters, it seems trite that, in such matters, justice would get preference over an interpretation that would lead to absurd result. In doing so, the courts are giving true effect to the spirit, purpose and objective of the Constitution. The courts’ decisions are even more plausible, specifically, in RAF matters, considering the nature of the claims – it sometimes takes a while before a potential claimant can get legal assistance. Interestingly, the court, in Masindi, emphasised that each matter will be decided on its own merits. This then permeates further matters of similar nature to be adjudicated upon in future. Of importance, however, from Masindi and Gabuza matters, the courts provided direction and certainty in matters where the last day for lodging or issuing and serving falls on dies non.
Mthokozisi Maphumulo | Associate