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[1998] ZASCA 86
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Road Accident Fund v Smith NO (555/96) [1998] ZASCA 86; 1999 (1) SA 92 (SCA); [1998] 4 All SA 429 (A) (28 September 1998)
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IN THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
In the matter between
ROAD ACCIDENT FUND Appellant
and
RAPHAEL SMITH NO Respondent
Coram : Van Heerden DCJ, Harms, Schutz JJA, Melunsky et
Farlam AJJA
Date of hearing : 7 September 1998 Date of delivery : 28 September 1998
If Parliament in enacting the 1989 Act, with the Agreement as a schedule,
Concur
Schutz JA Melunsky AJA
Case no: 555/96 IN THE SUPREME COURT OF APPEAL
Road Accident Fund Appellant
and
R Smith N.O. Respondent
COURT: Van Heerden DCJ, Harms, Schutz JJA and Melunsky, Farlam AJJA
Heard: 7 September 1998 Delivered: 28 September 1998
2 VAN HEERDEN DCJ:
3 Fund in the Witwatersrand Local Division. On behalf of Sibiya he claimed
damages in respect of the aforesaid injuries. In a special plea the Fund
averred that the claim had become prescribed on 26 May 1991, i.e. two
years after the date of the collision. To this plea the respondent replicated
as follows:
Article 56 of the Agreement, which does not provide for suspension of
prescription in respect of a claim of an insane person, regulates the running
4 of prescription under the 1989 Act to the exclusion of the Prescription Act
and
relative to insane persons, did not apply, Sibiya's claim would have become
prescribed on 26 May 1991.
"Prescription of a claim for compensation ... shall not run against:
(a) a minor;
(b) any person detained as a patient in terms of the provisions of mental health legislation ...
(c) a person under curatorship."
9 have the force of law and falls to be applied as if it were an Act of 13 1986 (3) SA 460 (O) 461 I, LC Steyn J expressed agreement with the view 14 instituted, apply to any debt arising after the commencement of the Act. 15 whether the amended s 24(1) of the 1972 Act was a self-contained 17 persons mentioned in that Article. In support of this submission counsel for 21 The history of Article 56 furthermore affords an indication that the 22 legislature in para (b) deliberately included only the first and third
Agreement, s 13(1) of the Prescription Act does not provide for a
suspension of prescription properly so called. It does, however, provide for
an extension of the period of prescription. (I shall revert to this at a later
stage). Second, in the case of inter alia an insane creditor the completion
health legislation. Third, if s 13(1) governed the running of prescription in
respect of Sibiya's claim, it could not have become prescribed by 26 May
1991.
Before dealing with the precursors of the 1989 Act it is convenient
to draw attention to s 16(1) of the 1969 Prescription Act. Subject to a
proviso which is not material to this appeal, it provides that:
"(1)
the provisions of this chapter [which includes s 13] shall,
an Act of Parliament. In terms of s 2(1) of the 1989 Act it does, however,
Parliament.
(2)
(3)
(2)
in the law as previously applied in regard to the prescriptive
question whether the amended s 24(1) of the 1972 Act excluded the
is clear, however, that he was of the view that the amended subsection also
of Friedman J "dat art 24 van Wet 56 van 1972 nou die uitsluitlike kenbron
is ten opsigte van verjaring van else gegrond op daardie Wet." However,
that view was not shared in Kotze NO v Santam Insurance Ltd 1994(1) SA
237 (C) 246-7. Foxcroft J, in whose judgment Conradie J concurred, held
(at 248E) that since s 14 of the 1986 Act did not specifically deal with
insane persons, it did not preclude the application of s 13(1) of the
Prescription Act in respect of claims of such persons under the former Act.
In Terblanche Friedman J made no reference to s 16(1) of the 1969
Prescription Act. It will be recalled that in terms of that subsection the
provisions of inter alia s 13 of the Act shall, save in so far as they are
inconsistent with the provisions of any Act of Parliament which prescribes
a specified period within which an action in respect of a debt is to be
The subsection therefore calls for what may conveniently be termed a
consistency evaluation. Because he did not make such an evaluation,
Friedman J failed to consider whether the provisions of s 13(1) of the
Prescription Act in respect of e.g. deceased creditors and creditors who are
prevented by superior force from interrupting the running of prescription,
were inconsistent with the provisions of the amended s 24(1) of the 1972
Act. His conclusion that that subsection was intended to be fully
comprehensive on the subject of prescription of claims under the 1972 Act
must therefore be open to doubt.
What has been said above, is to some extent borne out by a finding
in Standard General Insurance Co Ltd v Verdun Estates (Pty) Ltd 1990(2)
SA 693(A) 697. In that case Goldstone AJA considered the question
that if the period of prescription would otherwise be completed before, or
on, within one year, after the day on which the impediment has ceased to
exist, that period shall not be completed before a year has elapsed after that
day. Hence, a three year period of prescription does run against a 17 year
old minor but is not completed before the lapse of one year from the day on
which he attains majority. The three year period thus in effect becomes a
five year period. Had s 13(1) suspended the running of prescription, the
period of prescription would, of course, have come to an end only when the
erstwhile minor became 24 years of age.
The main submission of counsel for the appellant was that there is an
inconsistency between the provisions of s 13(1) of the 1969 Prescription
Act and Article 56 of the agreement; at least as regards the three classes of
the appellant postulated the following examples.
(a)
(b)
(c)
(a)
incompatible with those of Article 56.
In the result I am of the view that there is indeed a potential
inconsistency between the provisions under consideration. In this regard it
is pertinent to bear in mind a dictum of Miller J in Apalamah v Santam
Insurance Co Ltd 1975(2) SA 229 (D) 234 A-B, which was quoted in SA
Mutual Fire and General Insurance Co Ltd v Eyberg 1981 (4) SA 318 (A)
327 D-G. It reads thus:
insane person. If he is detained the Article finds application.
legislature did not intend article 13(1) of the Prescription Act to govern the
running of prescription in respect of insane creditors. As was pointed out
by Friedman J in Terblanche (see (3) above), prior to the amendment of s
24(1) of the 1972 Act clear judicial pronouncements were to the effect that
the Prescription Act, relative to inter alia suspension of prescription,
applied to the prescriptive provisions of the unamended s 24(1) and its
precursor. As amended s 24(1) (b) - which, as said, is virtually identical
to Article 56 - provided that prescription would not run against a minor, a
detained person and a person under curatorship. At the time of the
amendment the first three distinct categories of creditors mentioned in
s 13(l)(a) of the Prescription Act comprised (i) minors, (ii) insane persons
and (iii) persons under curatorship. Yet, when amending s 24(1) the
categories. In place of the second category it substituted a somewhat
different category, i.e. persons detained under mental health legislation,
who would usually be insane persons. It would therefore appear that the
legislature intended s 24(1)(b) to apply to the exclusion of the provisions
of s 13(1) of the Prescription Act in relation to claims of at least the above
three categories of creditors.
person to be in a position where prescription would not run against him
once he was detained, but would run against him prior to his detention. Of
course, should s 13(1) of the Prescription Act be applicable, prescription
would run against an insane person, whether detained or not. However, as
HARMS JA