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The law does not require impossibilities and its effect on prescription

22 December 2021 Patrick Bracher, Norton Rose Fulbright

In finding that the Road Accident Fund Act three year extinctive prescription period (with some exceptions) did not apply to the claimant who had become a person of unsound mind because of the motor accident, the Constitutional Court applied the impossibility principle (lex non cogit ad impossibilia).  It was held that the claimant’s action had not prescribed where it was instituted more than seven years after the accident.

Even although section 23 of the RAF Act supersedes other laws on prescription, it does not exclude the operation of the impossibility maxim because that maxim does not regulate prescription.  The maxim merely relieves a person from complying with the requirements of a law in circumstances where it is impossible to comply.  The maxim is part of the rule of law which is one of the foundational values of our Constitution.

The court emphasised that where section 23 is interpreted, this must be done in a manner which is reasonably capable of a construction that is consistent with section 233 of the Constitution and in a way that is consistent with international law, in this case the Convention on the Rights of Persons with Disabilities, 2006.  Parliament could not have intended in passing section 23 of the RAF Act, to require people like the claimant to do what is impossible to perform.  If a prescription period like this fails to make provision for the protection of claimants who, for circumstances beyond their control, find it impossible to institute proceedings within the fixed period, the common law comes to their rescue. Otherwise it would lead to a grave absurdity.  It is a well-established principle of our law that even in the case of clear language of a statute, a court is entitled to depart from the language if its meaning would lead to an absurdity which could not have been intended by parliament.  Refusing to apply the maxim in these circumstances would also be inconsistent with section 9(1) of the Bill of Rights creating everyone equal before the law.  Impossibility is true impossibility.  The Constitutional Court has previously applied prescription provisions to a blind and illiterate claimant who became aware of his rights six months before the three years was up and there was no true impossibility.

There are three kinds of impossibilities in our law.  Firstly the principle dealt with in this case.  Secondly the impossibility to apply provisions in a will which are then regarded as not written (pro non scripto). Thirdly, impossibility arises in relation to a contract which is impossible to perform (impossibilium nulla obligatio est).

Van Zyl N.O. v Road Accident Fund [2021] ZACC44

First published by: Financial Institutions Legal Snapshot

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