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RAF claims: Time for a more purposive approach to Prescription

RAF claims: Time for a more purposive approach to Prescription

The Road Accident Fund Act 56 of 1996 (“the RAF Act”) has been described as ‘social legislation’.

Crucially, the Act’s fundamental objective is to provide protection to a wronged party who has suffered loss through the negligence or unlawful act on the part of a driver or owner of a vehicle.

Prescription is a rule of law that is designed to bring finality to disputes. Consequently, prescription shuts the door on the claimant effectively disabling them to issue a claim once the time period has lapsed.

In terms of the RAF Act, the period of prescription of a claimant’s claim is determined in accordance with the provisions of Section 23(3) which enjoins that:

Notwithstanding subsection (1), no claim which has been lodged in terms of Section 17(4)(a) or 24 shall prescribe before the expiry of a period of five years from the date on which the cause of action arose.”

Like many other pieces of legislation, Section 23(3) of the RAF Act fails to provide for a situation where the last day of the prescription period falls on a weekend or a public holiday.

Accordingly, a strict interpretation of the RAF Act leads one to conclude that a claimant must serve summons within the prescribed five year period, failing which, such claim will fall outside the prescribed five years.

One of the pertinent issues facing the Supreme Court of Appeal (“the Court”) recently in the matter of Road Accident Fund v Masindi (586/2017) [2018] ZASCA 94 (1 June 2018) (“the Masindi case”) was the interpretation of the prescription period under the RAF Act.

More specifically, the question (as alluded to above) facing the Court was what happens if the last day of the prescribed period was to fall on a weekend or public holiday?

In the Masindi case, the last day of the five year prescription period fell on a public holiday when the court closed.  The five year prescription ended at midnight on Monday, 16 June 2014, however the 16th of June is a South African public holiday. i.e. Youth Day.

The Court, as such, was closed on the Saturday and Sunday prior (like normal) and also on the Monday.

In the circumstances, the last day on which the Court was actually open during the five-year period, strictly computed, was Friday, 13 June 2014.

Masindi would therefore have to ensure that the summons was issued by the Court and served by the Sheriff before close of business on the Friday (3 days before his claim actually prescribed) in order to ensure that he complied with a literal interpretation of Section 23(3) of the RAF Act.

Faced with deciding whether Masindi’s claim had prescribed, the Court unanimously decided to move away from a literalist approach of interpretation of Section 23(3) of the Act.

Despite arguments having been proffered that the Court should take into account the Interpretation Act to come to deciding the matter, Mocumie JA concluded that is a matter of interpretation and that instead of a literal approach to interpretation, a good place to start is with the Constitution.

The right of access to courts is a constitutional protected right that every person is entitled to. Section 34 enshrines that ‘everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.’

The Court further considered international law in light of engaging in an exercise of interpreting the Bill of Rights, as provided under Section 39 of the Constitution.

The Court held that effect must be given a constitutional interpretation which firstly guarantees that no rights are limited, and secondly promotes the rights enshrined therein. To this end, the Court held that it was enjoined to give a more purposive interpretation than a literalist approach.

Mocumie JA acutely sums up the situation as follows at paragraph 20 of the judgment:

On a proper interpretation of s 23(3) of the RAF Act where the five year period for bringing a claim ends on a day when the court is closed, so that summons cannot be issued and served on that day, the five year period should end on the next working day. To hold otherwise would deprive the respondent of her right to claim which is an absurdity which the legislature could not have contemplated.

Although the Court cautioned that this approach and exercise must be embarked upon on a case by case basis, its interpretation must certainly be applauded. To say otherwise, and thus endorse a more literalist approach, would only lead to a too hard an outcome to a possible claimant’s claim against the RAF.

The Court has once again shown that interpretation of statutes ought to continue with its move beyond the literalist approach of the past to an approach in line with our constitutional epoch – one which guarantees the promotion of rights.

By Ryan M Lin

Ryan is an admitted attorney, notary public, and conveyancing attorney. He has a keen interest in Property Law, Conveyancing, Consumer Protection Law, Liquor Law, Labour Law, Property Law and Commercial Law. Ryan is determined and passionate for any challenge.