Van Zyl N.O. v Road Accident Fund

On 1 May 2010, Mr Koos Jacobs was seriously injured in a motor vehicle accident, suffering severe head injuries that impaired his mental capacity. He was unable to lodge a claim against the Road Accident Fund (RAF) himself. His mother lodged the claim on 18 January 2017, nearly seven years after the accident. On 28 November 2017, Ms Phillipa Susan van Zyl N.O. was appointed as his curatrix ad litem and instituted an action against the RAF on 8 March 2018. The RAF raised a special plea of prescription, arguing that the claim should have been filed within three years of the accident under section 23(1) of the Road Accident Fund Act 56 of 1996. Mr Jacobs did not fall within the express exceptions in section 23(2) (persons detained under mental health legislation or under curatorship) because he was mentally incapacitated but had not been formally detained or placed under curatorship within the three-year period. Both the High Court and the Supreme Court of Appeal upheld the special plea of prescription.

• Whether section 23 of the Road Accident Fund Act suspends prescription against mentally incapacitated persons who are not detained or under curatorship ('affected persons')
• Whether section 13(1) of the Prescription Act 68 of 1969 applies to claims under the Road Accident Fund Act
• Whether the common law impossibility principle (lex non cogit ad impossibilia) suspends prescription where compliance is impossible
• Whether the interpretation of section 23 must be consistent with the Convention on the Rights of Persons with Disabilities (CRPD)
• Whether section 23 of the RAF Act limits the right of access to courts under section 34 of the Constitution and whether such limitation can be saved through interpretation

The application for leave to appeal was granted. The appeal was upheld. The order of the Supreme Court of Appeal was set aside and substituted with an order dismissing the special plea of prescription with costs. The RAF was ordered to pay the applicant's costs in the High Court, Supreme Court of Appeal, and Constitutional Court, including costs of two counsel in the Constitutional Court.

The binding legal principles established are: (1) The Prescription Act does not apply to claims under the Road Accident Fund Act due to inconsistency (following Mdeyide II). (2) The common law impossibility principle (lex non cogit ad impossibilia) and incapacity principle (contra non valentem agere non currit praescriptio) apply to suspend prescription where compliance is impossible through no fault of the creditor. (3) The impossibility principle is grounded in natural justice and the rule of law, and cannot be implicitly excluded by statute; express exclusion would be required. (4) For mentally incapacitated persons who are unable to institute legal proceedings, prescription does not begin to run until such time as a curator ad litem is appointed to act on their behalf. (5) Legislation must be interpreted consistently with section 39(2) of the Constitution to promote the spirit, purport and objects of the Bill of Rights, and with international law obligations including the CRPD under section 233 of the Constitution. (6) Section 23 of the RAF Act, properly interpreted, does not deprive mentally incapacitated persons of access to courts where it was impossible for them to comply with prescription periods.

Pillay AJ made several obiter observations: that an unjust law is not a law; that the impossibility principle is more than an aid to interpretation but a fundamental principle of equity, fairness and reasonableness that infuses the Constitution; that the principle is distinguishable from 'any law' because it is right reason to which all law aspires; and that to conclude the preamble to section 23(1) implicitly excludes the impossibility principle would be a perversion of justice. The judgment also noted that questions of State liability for breach of CRPD obligations were not before the Court. Jafta J observed that holding section 23(1) excludes the operation of the maxim would lead to grave absurdity and inconsistency with section 9(1) of the Constitution (equality). Theron J's dissent provided extensive obiter on the proper boundaries between statutory interpretation under section 39(2) and frontal constitutional challenge, warning against using interpretation as a 'back door' to strike down legislation and emphasizing that courts must not ignore clear statutory language or they engage in 'divination' rather than interpretation.

This judgment is significant for establishing that the common law impossibility principle (lex non cogit ad impossibilia) applies to protect mentally incapacitated persons from prescription of claims under the Road Accident Fund Act, even when they do not fall within the express statutory exceptions in section 23(2). The Court affirmed that the impossibility principle is grounded in natural justice and the rule of law, and cannot be implicitly excluded by statute. The judgment provides important protection for vulnerable persons with disabilities who lack the capacity to institute legal proceedings on their own behalf. It also demonstrates the Court's approach to interpreting legislation consistently with international law (specifically the CRPD) and constitutional values under section 39(2), while recognizing the limits of interpretive methodology versus frontal constitutional challenge (as articulated in the dissent). The case clarifies the relationship between the RAF Act and the Prescription Act following Mdeyide II, and extends protection to 'affected persons' who are mentally incapacitated but not detained or under formal curatorship.