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10.25.2010

Time-bar restrictions held to be reasonable and justifiable limitation of the right of access to court

In Road Accident Fund and Another v Mdeyide (CCT 10/10) [2010] ZACC 18 (30 September 2010) the South African Constitutional Court upheld an appeal against the high court’s declaration that the time-bar provision contained in the legislation regulating the affairs of the Road Accident Fund was unconstitutional.

The time-bar clause under scrutiny stipulates that claims against the Fund (created to compensate road accident victims) must be instituted within three years of the date of the accident for which compensation is claimed. Thus prescription runs irrespective of a person’s knowledge of the existence of the Fund and the requirements for the institution of a claim. This time-bar provision is more restrictive than the general statutory prescription provision which incorporates a knowledge requirement.

The applicant before the Constitutional Court was a disabled, illiterate man who had no knowledge of the Fund until 6 months after a road accident in which he was hurt. After his initial consultation with an attorney, the applicant could not be found which resulted in his claim being filed 3 days late. In subsequent litigation the Road Accident Fund raised a plea of extinctive prescription based on the time-bar provision. The high court, of its own accord, raised the issue of the constitutionality of the time-bar provision and held that the provision constituted an unjustifiable limitation on the right of access to court by not incorporating a knowledge requirement and by not providing for possible condonation in the event of non-compliance.

The majority of the court (7 of 11 judges) confirmed the inconsistency between the general prescription provision and the time-bar provision contained in the legislation. But it held that the difference was justified by the purpose of the Road Accident Fund legislation. The time-bar provision indeed amounted to a limitation of the right of access to court which is fundamental in a constitutional state based on the rule of law but it was justified under section 36 of the Constitution – the general limitation clause. The majority engaged in a proportionality analysis, weighing up the effect of the prescription and the strict terms of the time-bar clause against the generous time period of three years within which the claim had to be instituted. It acknowledged that this analysis had to be conducted against the background the vulnerability of potential claimants who lack the knowledge and the skill to pursue claims against the Fund but concluded that the constitutionally defensible purposes served by the time-bar outweighed the impact of illiteracy and poverty on potential claimants’ ability to institute proceedings against the Fund.

The minority noted that knowledge of the facts giving rise to the claim formed part of the right. It emphasised the social context within which the legislation operates and highlighted the transformative nature of the South African Constitution and characterised the legislation regulating the Fund as social legislation contributing to transformation. The impact of the absence of the knowledge requirement in the time-bar provision on the vulnerable members of South African society is manifest, and in the view of the minority justified a conclusion that the time-bar provision was unconstitutional.

It would seem as if the minority judgment is more in keep with the spirit of transformation of the South African Constitution.

--Rosaan Kruger, African Network of Constitutional Lawyers

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