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A claim by a woman left mentally incapacitated by a freak accident may go ahead after Supreme Court of Appeal (SCA) holds that the appointment of a curator doesn’t end her “impediment”.

A tragic workplace accident has left a woman who worked as a packer in a hyper store permanently mentally incapacitated. The question in this case was whether the curator, appointed to act for her in bringing a claim for damages, had acted too late. If the litigation had been brought out of time, it would have left her with no further recourse and no access to financial help in her plight. It’s an important case that highlights the importance of observing “prescription” – the time limit for bringing civil claims of this kind.

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One of the most critical tasks for any attorney’s firm is to make sure court deadlines are met.

Among these deadlines is “prescription.” This refers to the period of time that a client would have to bring a claim for contractual or civil “debts.”

The length of prescription differs according to different kinds of “debts” or claims, and so when a client wants to bring a claim, it’s critically important to make sure that the papers related to the claim are complete and served on the opposing party in time.

The law reports are full of stories about claims lodged too late and that therefore “prescribe”, meaning that the client has reached the end of the road and can’t go ahead with the claim. Ever.

Poignant story

There’s a particularly poignant story playing out in the courts at the moment that shows how the issue of prescription could affect even what seems to be an open-and-shut case.

It concerns Nolunga Mkhwanazi, who worked as a packer with a company that provides merchandising services to retail stores. On 15 October 2014, while she was on duty at the Checkers Hyper in Edenvale, she climbed into a cage coupled to a forklift so that she could pack merchandise on shelves.

According to the details that would later be given in a judgment by the SCA, Mkhwanazi was lifted by the forklift some four metres from the shop floor. While she was in the air, the cage tilted and tipped her out onto the floor. Then the cage itself, which had dislodged from the forklift, toppled to the ground, hitting Mkhwanazi on the head as she lay on the floor. She was severely injured and is now permanently mentally incapacitated.

Curator appointed

Mkhwanazi obviously has a claim against Checkers Hyper. But how could she pursue it, given her condition? The law provides for the appointment of a special curator to litigate on behalf of a client in cases like this where the person herself can’t act. On 1 February 2017, attorney Cecil Mafate got the nod to act as curator for Mkhwanazi and to bring legal action for her.

Mafate assumed that Shoprite Holdings Ltd was the legal entity against which he should bring action on Mkhwanazi’s behalf and duly launched action. But Shoprite Holdings said it was not the owner of the store at the time; Mafate should have brought the action against Shoprite Checkers.

It took Mafate 11 months to withdraw the original action and another four months to begin fresh proceedings, this time against Shoprite Checkers. Lawyers for the company responded, however, by saying that the claim against it had been prescribed. If that was correct, it would have meant that the claim could not be argued and that, no matter how negligent the company might have been, Mkhwanazi’s claim had come to a dead end. There would be no compensation for her.

High Court

The prescription question was the subject of a fully argued case before the high court. A detailed judgment followed in January 2021, dismissing the plea by Shoprite. But the company then challenged the outcome at the SCA. That court has now given its decision, with the five appeal judges who heard the case holding that the claim had not been prescribed.

Settlement of the prescription question means that the actual claim may now be argued at last, and the facts seem to indicate that Mkhwanazi has a good chance of winning compensation to help maintain her in her present state.

But just what have the courts decided? And will the decision affect anyone else?

Exercising reasonable care

Shoprite had made two main arguments for why the claim had been made.

One argument relates to which section of the Prescription Act applies in a matter where a curator handles a case and not the “creditor” (the person directly affected).

According to Shoprite, section 13 of the Act is the part that deals with the running of prescription when a curator is involved. Section 12, by contrast, deals with prescription when no curator is involved.

Section 12 is, however, the section that says prescription only start to run after the creditor, exercising reasonable care, discovers the identity of the debtor. Mkhwanazi’s case would normally slot in here: the attorney brought the action against the party he believed to be the debtor (Shoprite Holdings), but then discovered it was another party and had to bring new proceedings against the correct debtor (Shoprite Checkers). Normally, prescription would only begin to run once he made this discovery.

Tougher time limits

But Shoprite argued that Mafate was not allowed to rely on section 12 and the extra time he would have gained from that section since, according to Shoprite, matters where curators were involved were governed by section 13. And while section 13 talks about cases involving curators, it doesn’t provide that the prescription will only start to run after the identity of the debtor is established. In other words, according to Shoprite, the time limits are much tougher when a curator is involved.

Shoprite also argued that, according to section 13, where a curator is acting for a litigant with a mental “incapacity,” the relevant period of prescription is a year “after the relevant impediment… has ceased to exist.” In Shoprite’s view, Mkhwanazi’s impediment “ceased to exist” once the curator was appointed, and so the prescription began to run from the date of his appointment.

Was that correct? “I think not,” said Judge Xola Petse, who wrote the decision with the unanimous agreement of the rest of the five-member bench. He said Mkhwanazi’s incapacity “persists to this very day” and that placing someone under curatorship “is in itself an impediment and does not bring about a cessation of an impediment as Shoprite… would have it.” Her impediment would “cease to exist only when she recovers from her mental incapacity.”

The court’s finding on the meaning of “impediment” meant Shoprite had lost its appeal and that the claim had not been prescribed. According to Judge Petse, it was therefore not necessary to deal with the question of whether a curator could act under section 12 of the Prescription Act. That was a dispute for “another day,” he said.

Double-edged sword

Prescription is a double-edged sword. In this case, it would be easy to feel sympathy for Mkhwanazi and to feel it would be “right” that she had extra time to bring her case. But many judgments have stressed how important it is for litigation to come to an end and for the parties to have certainty about their affairs. If matters are unreasonably delayed, there could be problems with witnesses not remembering facts or documents getting lost, for example, and so the courts have repeatedly stressed that a time limit is the fairest system.

What happened in this case, however, is that Shoprite was arguing for an interpretation of the law in which the time limit for Mkhwanazi’s claim would be even shorter than the law has apparently provided up to now. If Shoprite had been found correct, it would have affected all future claims involving curators acting for mentally incapacitated clients.

The appeal court’s decision, however, clarifies the law and means that Mkhwanazi’s claim can go ahead, something that most readers will feel is fair. At the same time, however, the court did not, out of a sense of sympathy, for example, extend the prescription in her case beyond what the law provided. Instead, it reached its conclusion by closely analysing the law to establish what the words meant.

In other words, the principle that there must be clearly defined time limits to bring claims has been maintained, and the court has re-established certainty about the length of prescription.