The treacherous landscape of prescription

Ayanda Nondwana

Sive Dukada

In Bisschoff NO obo Reyners v Passenger Rail Agency of South Africa (727/2022) [2023] ZASCA 160 (28 November 2023), the Supreme Court of Appeal was once again called upon to interpret section 12(1), (2) and 13(1)(a) of the Prescription Act 68 of 1968 pertaining to a claim involving a head injury nine months after having decided this issue. The facts of the case are as follows:

Mr. Reyners fell from a moving train which was operated by PRASA in 2001, and as a result, he sustained head injuries and underwent surgery on his head. Mr. Reyners was diagnosed with a traumatic brain injury which resulted in temporal lobe epilepsy, memory loss, aggression, a change of personality, and permanent loss of cognitive abilities and executive functioning. In June 2010, more than nine years after the train incident, Mr. Reyners instructed his attorneys to file a claim against PRASA. On 7 February 2013, the curator ad litem was appointed to help Mr. Reyners with his legal affairs. On 23 August 2013, the curator caused to be issued summons against PRASA.

PRASA then raised a special plea of prescription, contending that Mr. Reyners’ claim had prescribed insofar as prescription commenced from the date of the incident in accordance with section 12(1) of the Prescription Act. The trial court held that the prescription period did not start to run while Mr. Reyners was under a disability or impairment. As such, the trial court dismissed the special plea of prescription.

An appeal was made to the Full court, and majority of the Full court upheld the appeal and substituted the order with one where the special plea of prescription succeeded and dismissed the curator’s claim. Accordingly, the curator appealed to the SCA, and the SCA overturned the decision of the majority of the Full court. The SCA held that the majority of the Full court misdirected itself by assuming that in the face of uncontested expert evidence to the contrary, Mr. Reyners had the same cognitive abilities as a person without brain damage or disability. The SCA continued to say, in doing so, the majority failed to acknowledge that while Mr Reyners had some residual capacity to engage with society, his complex attention and memory deficits made it difficult for him to utilise his intellectual ability effectively. Interestingly, the SCA held that:

“Mr Reyners’ capability to continue with some form of life after the fall could not possibly mean that he must have obtained knowledge of all the material facts from which the debt arose or which he needed in order to institute an action. Given his physical and mental condition, pain, memory function, and social environment, his failure to acquire such knowledge can hardly be regarded as unreasonable.

It is clear that Mr. Reyners has been under a disability or impediment since the incident, which prevented the interruption of the running of prescription as contemplated in the Act. Even though a curator was appointed approximately 12 years later, it was clear that Mr Reyners needed a curator after the incident. Prescription began to run from the date of the appointment of the curator ad litem. For all of these reasons, the appeal must succeed”.

Firstly, the precedential effect of this judgement is that a person who has suffered a brain injury with residual functioning does not mean that such a person has knowledge of the material facts giving rise to a claim, and as such, prescription is suspended during the subsistence of such impediment.

Secondly, the precedential effect of this judgement is that, prescription in the case of a mentally incapacitated person begins run from the date of the appointment of the curator ad litem. Notably, this is in conflict with the SCA’s earlier decision in Shoprite Checkers (Pty) Ltd v Mafate 2023 (4) SA 534 (SCA) (17 February 2023), which held that, placing a claimant under curatorship is in itself an impediment, and does not bring about a cessation of the mental incapacity impediment in terms of section 13(1) of the Prescription Act. In essence, a precedent that was created by the Mafate judgement was that, prescription does not run against a mentally incapacitated claimant despite having a curator. However, in the present case, the SCA appears to have overruled itself by holding that prescription began to run from the date of the appointment of the curator ad litem and no reference was made to the Mafate’s judgement.

We have had on good authority that Shoprite Checkers has appealed its judgement to the Constitutional Court. Resultantly, the Constitutional Court will have a final say on this issue.