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Phillipa Susan Van Zyl v The Road Accident Fund: A Shift in the Law?
By Feziwe Phungula, a director at MNS Attorneys
On March 2, 2021, the Constitutional Court heard argument in a matter between Phillipa Susan Van Zyl N.O. v The Road Accident Fund, which could clarify a critical question of law.
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The brief facts of the matter are that the Applicant was involved in a motor vehicle accident which led to his mental impairment. He was not detained as patient in terms of mental health care legislation, nor placed under curatorship. He lodged a claim seven years after the motor vehicle accident occurred and as a result, the Road Accident Fund (“RAF”) repudiated the claim on the basis of prescription.
The Constitutional Court has to determine whether:
• there should be a conjoint reading of the provisions regulating prescription in the RAF Act and in the Prescription Act;
• the RAF Act limits the constitutional right to access to courts, and if so, if such limitation is reasonable;
• the RAF Act discriminates against persons who are mentally impaired and are not detained as patients in terms of mental health care legislation and/or are not under curatorship.
This matter concerns the applicability of: section 23 (2)(b) and (c) of the Road Accident Fund Act 56 of 1996; and section 13(1)(a) of the Prescription Act 68 of 1969. 2.
The time in which the claim was instituted, ousted the claimant from the reliance on section 23 (2)(b) and (c) of the Road Accident Fund Act 56 of 1996 (“RAF Act”). In terms of the RAF Act, prescription of a claim for compensation does not run against persons who are: minors; detained as patients in terms of mental health care legislation; and under curatorship.
The Applicant sought protection from the running of prescription by relying on section 13(1)(a) of the Prescription Act 68 of 1969 (“the Prescription Act”), which state that completion of prescription is delayed if the creditor is an insane person.
The High Court agreed with the contentions of the RAF by upholding the special plea of prescription.
The Supreme Court of Appeal (“SCA”) upheld the High Court’s judgement. It held that the Prescription Act did not afford the Applicant protection against the running of prescription and that the prevailing provision regulating motor vehicle accident claims is the RAF Act. As a result, the SCA held that the Applicant’s claim against the RAF had prescribed.
In reaching its decision, the SCA, relied on the judgement of Road Accident Fund v Mdeyide 2011 (2) SA 26 (CC) (“Mdeyide II”), which held that the provisions of the Prescription Act and the RAF Act are inconsistent, in that the prescription of third-party claims against the RAF are exclusively governed by the RAF Act.
Despite the fact that the Constitutional Court has not handed down judgment, the enquiry during the proceedings point to the unconstitutionality of RAF Act.
* MNS was instructed on behalf of the RAF to defend the matter.
