Shoprite Checkers (Pty) Ltd v Cecil Tshepo Mokopane Mafate

On 15 October 2014, Ms Nolunga Mkhwanazi was employed as a packer working at a Checkers Hyper store in Meadowdale Shopping Mall, Edenvale. While on duty, she climbed into a cage attached to a forklift to pack merchandise on shelves approximately four metres above the floor. The cage unexpectedly tilted, ejecting her to the ground, and then fell on her head, causing severe brain injuries resulting in permanent mental incapacity. On 1 February 2017, Mr Cecil Mafate (the respondent), a practicing attorney, was appointed as curator ad litem for Ms Mkhwanazi. On 22 February 2017, the curator instituted delictual proceedings against Shoprite Holdings Limited. On 28 July 2017, Shoprite Holdings raised special pleas of misjoinder and non-joinder, asserting that Shoprite Checkers (Pty) Ltd (the appellant) was the correct defendant. The curator withdrew that action on 28 June 2018. On 15 October 2018, the curator issued fresh summons against Shoprite Checkers, served on 19 October 2018. Shoprite Checkers filed a special plea of prescription, arguing the claim had prescribed. The curator filed an amended replication arguing that Ms Mkhwanazi's mental incapacity prevented her from knowing the debtor's identity, and that prescription only began running once the curator was appointed or, alternatively, when the true debtor's identity became known on 28 July 2017.

• Whether the appointment of a curator ad litem for a person suffering from mental incapacity has the effect that the relevant impediment referred to in section 13(1)(a) of the Prescription Act 68 of 1969 ceases to exist
• Whether sections 12 and 13 of the Prescription Act are mutually exclusive
• Whether a curator appointed on behalf of a person suffering from permanent mental incapacity is precluded from invoking section 12 of the Prescription Act read with section 13
• When prescription begins to run in circumstances where a creditor suffers permanent mental incapacity and a curator ad litem is subsequently appointed

The appeal was dismissed with costs.

The appointment of a curator ad litem for a person suffering from permanent mental or intellectual disability, disorder or incapacity does not cause the impediment referred to in section 13(1)(a) of the Prescription Act 68 of 1969 to cease to exist. The impediment of mental incapacity continues for as long as the creditor remains mentally incapacitated. The word 'creditor' in section 13(1)(a) refers to the person in whom the right to enforce the claim vests (the mentally incapacitated person), not the curator. The impediment would only cease to exist when the creditor recovers from their mental or intellectual disability, disorder or incapacity. Placing a person under curatorship is itself an impediment and does not bring about cessation of an impediment. The completion of the relevant period of prescription would not occur for as long as the mental incapacity impediment persists.

The Court noted but did not decide whether sections 12 and 13 of the Prescription Act are mutually exclusive, and whether a curator is precluded from invoking section 12 in addition to section 13. The Court stated it was not necessary to make a definitive pronouncement on this question in light of its conclusion regarding section 13(1), and left this question open for determination in a future case when it is squarely raised and necessary for the decision. The Court also noted, without deciding the point, that the curator appeared to have failed to act with expedition after learning the identity of the correct debtor on 28 July 2017, but found it unnecessary to delve into this aspect. The Court emphasized that prescription legislation must be interpreted in accordance with section 39(2) of the Constitution to promote the spirit, purport and objects of the Bill of Rights, including the right of access to courts under section 34.

This judgment provides important clarification on the interpretation of sections 12 and 13 of the Prescription Act 68 of 1969, particularly regarding when the impediment of mental incapacity 'ceases to exist' for purposes of prescription. The case has significant implications for persons suffering permanent mental incapacity and their ability to bring claims through curators ad litem. It clarifies that the appointment of a curator does not automatically trigger the running of the one-year period under section 13(1)(i), as the underlying mental incapacity impediment continues to exist. The judgment protects the rights of mentally incapacitated persons to access courts and enforces a constitutional interpretation of prescription legislation. It provides guidance on the relationship between sections 12 and 13 of the Prescription Act, though it leaves open for future determination whether these provisions are mutually exclusive. The case demonstrates the application of constitutional interpretation principles to prescription legislation, balancing the interests of creditors and debtors while ensuring access to justice for vulnerable litigants.