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8
to what the legal position would be if Sibiya were detained under mental health legislation some time after the collision and was released some years later should impel one to a conclusion different from that stated above. Persons are detained under mental health legislation because they are already suffering from mental illness and the degree of such illness is such that they should be committed to an institution. Parliament must accordingly have been aware that in all cases where insane persons are detained under mental health legislation the delayed completion of prescription enjoyed by such persons under s 13(1) (a) and (i) of the Prescription Act will be overridden by Article 56 of the Agreement, with consequences sometimes more favourable to them (because they will have more than a year after their recovery and discharge to bring their claims) and sometimes less favourable (because they will have less than a year to bring their claims). But it is reasonably clear in my view that once Article 56 takes the place of s 13(l)(a) the legal position set out in the Agreement prevails. However, the exact resolution of these admittedly untidy problems will have to await resolution on another day. In the meantime there is an urgent need that Parliament should make quite clear exactly how it wishes that
9
the potential conflicts between the Prescription Act and the third party legislation should be resolved. This is an old problem that daily affects many people.
Be that as it may, I cannot accept that merely because these conundrums can arise, Parliament is to be taken to have legislated with the unjust intent contended for by the appellant.
The appeal is dismissed with costs, such costs to include those occasioned by the employment of two counsel.
FARLAM AJA
Concur
Schutz JA Melunsky AJA
Case no: 555/96 IN THE SUPREME COURT OF APPEAL
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:
4 of prescription under the 1989 Act to the exclusion of the Prescription Act
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
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"13(1) If—
(a) the creditor is a minor or is insane or is a person under curatorship or is prevented by superior force including any law or any order of court from interrupting the running of prescription . .. ; or
(h) The creditor or the debtor is deceased and an executor
of the estate in question has not yet been appointed; and
(i) the relevant period of prescription would, but for the
provisions of this subsection, be completed before or
on, or within one year after, the day on which the
relevant impediment referred to in paragraph (a)... or
(h) has ceased to exist,
the period of prescription shall not be completed before a year has
elapsed after the day referred to in paragraph (i)."
Three observations are apposite. First, unlike Article 56 of the
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
8
of prescription is delayed whether or not he is detained in terms of mental
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,
save in so far as they are inconsistent with the provisions of any Act of Parliament which prescribes a specified period within which a claim is to be made or an action is to be instituted in respect of a debt or imposes conditions on the institution of an action for the recovery of a debt, apply to any debt arising after the commencement of this Act."
In parenthesis I should mention that the Agreement is stricto jure not
an Act of Parliament. In terms of s 2(1) of the 1989 Act it does, however,
Parliament.
Prior to its amendment by Act 69 of 1978, The Compulsory Motor Vehicle Insurance Act 56 of 1972 ("the 1972 Act") did not provide for suspension of prescription. Nor did the Motor Vehicle Insurance Act 29 of 1942 ("the 1942 Act"). Subsequent to the amendment, however, s 24(l)(b) of the 1972 Act contained provisions virtually identical to those of Article 56 of the Agreement. So did s 14(l)(b) of the Motor Vehicle Accidents Act 84 of 1986 ("the 1986 Act").
The question whether the amended s 24(1) of the 1972 Act precluded the application of common law rules relating to the suspension of prescription of claims under the 1972 Act, was considered in Terblanche v South African Eagle Insurance Co Ltd 1983 (2) SA 501 (N). In that case
10 the court was asked to assume that for an uninterrupted period of 30 days
following upon a collision the plaintiff was non compos mentis, and that
this was a condition which, at common law, would suspend the running of
prescription against the creditor concerned. The question for decision was
formulated as follows by Friedman J (at 502 F): "whether the category of
persons referred to in s 24(1)(b) of the MVA Act [the 1972 Act] is
exhaustive of those against whom prescription in terms of the Act does not
run or whether the common law relating to the suspension of prescription
applies to claims for compensation under the MVA Act."
Friedman J decided that the categories of persons mentioned in the amended s 24(1)(b) of the 1972 Act were exhaustive in the above sense. The main thrust of his reasoning may be thus summarised:
(1) The amended s 24(1) had about it every appearance of being
11
self-contained and exhaustive in so far as the prescription of claims for compensation under the 1972 Act was concerned (at 502 H).
(2)
The listing in the amended s 24(1)(b) of specified persons against whom prescription would not run afforded an indication of an intention to exclude all others from such protection (at 503 E).
(3)
Prior to the amendment of s 24(1) of the 1972 Act there were clear judicial pronouncements to the effect that both the Prescription Act and the common law relative to interruption and suspension of prescription applied to the prescriptive provisions of the unamended section and its precursor , s 11 of the 1942 Act. Yet, when it passed the amending Act the
(2)
12
legislature categorised two classes of persons (minors and
persons under curatorship) who in any event enjoyed common
law protection against the running of prescription. The only
reason for doing so was an intention to bring about a change
in the law as previously applied in regard to the prescriptive
provisions of s 11(2) of the 1942 Act and the unamended
s 24(1) of the 1972 Act (at 504 C-H).
In (3) above Friedman J was, of course, directing his mind to the
question whether the amended s 24(1) of the 1972 Act excluded the
application of common law rules relating to suspension of prescription. It
is clear, however, that he was of the view that the amended subsection also
excluded the application of 13(1) of the Prescription Act.
In Van Rhyn N.O. v A A Onderlinge Assuransie Assosiasie Bpk
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
provision to the exclusion of the terms of the Prescription Act. Having said
that an affirmative answer found some support in a dictum in Terblanche
(encapsulated in (3) above), Goldstone AJA, with reference to s 16 of the
1969 Prescription Act, concluded that the dictum was too widely cast.
It follows that in every case in which a plaintiff under the 1989 Act relies upon a provision of s 13(1) of the Prescription Act, the cardinal question is whether that provision is inconsistent with Article 56 of the Agreement.
Before dealing with the submissions of counsel for the appellant, I revert to the effect of s 13(1) of the Prescription Act. I have already said that, unlike Article 56 of the Agreement, s 13(1) does not provide for suspension of prescription. In respect of claims of each class of creditors
16 mentioned in s 13(l)(a) to (h) prescription does run, subject to the proviso
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)
In terms of s 13(1) a minor may have only one year after attaining majority before the period of prescription is completed; under Article 56, however, that period would only begin to run after he ceases to be a minor.
(b)
Similarly, a person who was under curatorship may be better off if the completion of the period of prescription is governed by Article 56 rather than by s 13(1).
(c)
If an insane person is detained under mental health legislation and Article 56 is applicable, the running of prescription will be suspended for the full period of his detention. However, if s 13(1) were to apply, the period of prescription may be
(a)
18
completed one year after he regains sanity.
I have little doubt that there is an inconsistency between the two sets of provision as far as minors and persons under curatorship are concerned (cf Erasmus v Protea Assuransiemaatskappy Bpk 1982 (2) SA 64 (N)). As regards insane persons, it is, of course, true that they are not specifically referred to in Article 56. On the other hand, it can safely be assumed that a substantial number of insane persons are in fact detained under mental health legislation, and that by far the majority of persons so detained are in fact insane.
A submission of counsel for the respondent initially appealed to me. The argument was that since Sibiya was never detained, no inconsistency between Article 56 and s 13(1), in its application to insane creditors, could have arisen in casu. On further consideration I am of the view, however,
19
that an inconsistency exists if the provisions of s 13(1) are potentially
incompatible with those of Article 56.
Now, assume that Sibiya was detained under mental health legislation 21 months after the collision; that he was released three years later, and that he regained sanity shortly prior to his
release. If s 13(1) applied, the period of prescription would have been completed one year after he regained sanity. If, on the other hand, Article 56 governed the running of time from the date of Sibiya's detention, the prescriptive period would have terminated three months after his release.
Consider a further example. Assume that Sibiya was detained four years after the collision; that he became sane again a month or so later, but that he remained in detention for another two years. If both s 13(1) and Article 56 were to apply, how does one determine when the period of
20
prescription will be completed?
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:
"Where the Prescription Act has a voice on an aspect relating to prescription in respect of which the 'other' Act is silent there is not necessarily inconsistency between the two Acts and the voice of the Prescription Act must needs be heeded. But it is a far cry from that to say that where both Acts deal with the same topic . .. the general provisions of the Prescription Act on that aspect prevail over or affect the specific provisions of the other Act."
Article 56 is not silent on the running of prescription against an
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.
Adapting the language of Foxcroft J in Kotze (at 247 J), the
question may be asked whether Parliament could have intended an insane
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
23
submitted by counsel for the appellant, the more weighty answer is that the
legislature may well have intended to avoid, for the purposes of enforcement of "third party" claims, a difficult enquiry into the condition of a man's mind.
I would therefore have allowed the appeal.
HJO VAN HEERDEN Deputy Chief Justice
Concur:
HARMS JA
URL: http://www.saflii.org/za/cases/ZASCA/1998/86.html
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