Shoprite Checkers has lost a case at the Supreme Court of Appeal (‘the SCA’) over whether a claim filed by a curator ad litem, on behalf of a temporary worker who was left permanently mentally incapacitated at work, had prescribed.
The worker, who, on 15 October 2014, suffered a freak accident at work which left her brain damaged, had a curator appointed to look after her affairs in February 2017.
Due to her permanent mental incapacity, she could not institute proceedings in her name and the curator unfortunately only filed her claim in October 2018 – some 4 years after the accident occurred. (Initially, a summons had been served on Shoprite Holdings, but it was withdrawn after it was ascertained that the store was owned by Shoprite Checkers – a distinct legal entity.)
Shoprite accordingly raised a special plea of prescription, arguing that the worker’s claim had prescribed as it was not instituted within the three-year period provided for in section 11 of the Prescription Act (‘the Act’).
While section 12 of the Act stipulates that prescription commences as soon as ‘the debt’ is due, section 13 provides circumstances in which the completion of prescription is delayed.
One such circumstance, as listed in section 13(1)(a), is if the creditor is mentally incapacitated.
The crisp question before the SCA was whether the appointment of a curator removed the impediment in terms of section 13(1)(a), because if it did then the claim should have been submitted by February 2018. However, it was ultimately found that the appointment of a curator did not remove the barrier to laying a claim.
The court held that the worker’s impediment to file a claim will only disappear when she recovers from her mental incapacity, and because this is not possible, the impediment will not cease to exist.
According to the ruling, the time limit for prescription will not expire as long as the obstacle remains. The court emphasised that the appointment of a curator is an obstacle in itself and does not remove an existing obstacle, as argued by Shoprite. As a result, the appeal by Shoprite was rejected.
Though the judgment emphasises that creditors should not intentionally or negligently delay the pursuit of their claims without facing the consequences of prescription and acknowledges the failure on the curator’s behalf to act with expedition, the court did not delve into this aspect in light of the conclusion that it reached.
The ruling is significant because it could potentially encourage legal action and prompt creditors to pursue claims where, in the circumstance listed above, they believed had prescribed.
It is important for litigants to understand that their time for instituting legal action may not have prescribed. Equally, those who believe they are ‘off the hook’ because of prescription may have to think twice.