Just prescription rulings dependent on judges’ attitude

19 Jun 2018

What should happen when a claim prescribes on a public holiday, and attempts are made to serve a summons but the court is closed? Sounds unlikely? In fact, it has actually happened in a claim involving the Road Accident Fund. Now the SCA has decided the matter in favour of the claimant, saying a strict interpretation of prescription would result in injustice. In her A Matter of Justice column on the Legalbrief website, Carmel Rickard looks at this decision, and at another recent prescription decision that has catastrophic implications for the university cleaner at the centre of the dispute.


Just last week I was bemoaning a terrible injustice, compounded by prescription, in a case where the judges who delivered the bad news to the litigant made not so much as a reference in their judgment to the iniquity of the situation before them. Since then the Supreme Court of Appeal, in an unrelated matter, has delivered a judgment also involving prescription – and the judges’ approach in this case could not have been more different.

The latter case involves an appeal by the road accident fund against a 2015 High Court decision concerning Gladys Khathutshelo Masindi, injured in an accident in 2009. The exact date of the accident, 17 June, is crucial to the subsequent legal disputes.

The parties reached a settlement on the merits and on R1m as the amount to be paid. It would only be paid, however, if the claim survived the fund’s prescription challenge: the fund said when the summons was served on 17 June 2014, it was a day too late.

The five-year prescription period applicable to road accident fund matters would normally have ended at midnight on 16 June 2014. But 16 June is an annual public holiday in SA, and in 2014 it fell on a Monday, with the court being closed on the two previous days. The issue for the court to decide was therefore whether prescription ran until the previous Friday, 13 June, or until the next day, Tuesday, 17 June.

Finding in favour of Masindi, the High Court said in the absence of any direction from the legislation itself, the court should prefer an interpretation that favoured a just outcome rather than one that deprived Masindi of the full five-year period.

On appeal, the judges were even more forthcoming about the role that a possible failure of justice played in their thinking.

Judge Baratang Constance Mocumie, with the concurrence of the other four appeal judges hearing the matter, said she disagreed with the way the High Court had reached its decision, but agreed with the outcome, namely, that Masindi could proceed with her claim even though she had filed on 17 June.

A good starting place would be the constitution which guaranteed access to court, said the judge. Interpreting the legislation strictly could result in the last day being 16 June. But though this would ‘ensure certainty’, it was a ‘strict and literalist approach’ that could defeat the protection offered by the constitution.

The road accident fund was ‘social legislation’ intended to offer the ‘greatest possible protection’ to the public and, with this in mind, the court preferred to give a more ‘purposive interpretation’ to the statute. When a search for SA precedents drew a blank, the court found two judgments of the English courts that were of help.

The conclusion to one of these cases, for example, was the following: ‘In general terms, however, where a statutory provision provides that proceedings must be brought no later than the end of a specified period, and the bringing of proceedings requires that the court office be functioning, and the last day of the prescribed period falls on a day when the court office is closed, then the statutory provision is to be interpreted as permitting the proceedings to be brought on the next day when the court office is open.’

In Masindi’s case it was a question of ‘an impossibility to perform’. ‘The impossibility was not of her own doing nor created by her, but by law; the court was closed on the public holiday.’ Interpreting the law otherwise, and in a way that resulted in her not having the benefit of the full five years, ‘would result in an injustice and prejudice to her,’ said the judge.

‘To sum up, I hold that, 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 (Masindi) of her right to claim which is an absurdity the legislature could not have contemplated.’

Having made a firm finding on how the section should be interpreted, however, the judge went on to add: ‘The approach and exercise embarked upon in this case, must be on a case by case basis’ which left me somewhat puzzled but hoping that this particular issue – how to approach a claim where prescription ends on a public holiday – would not need to be revisited in the future.

For Masindi this is good news, but the future is still bleak for Mbulelo Mtati, the man at the centre of the other case involving prescription that has been troubling me.

Mtati signed a deed of sale for a house he wanted to buy in Makana, Grahamstown, for which the full purchase price was R50 000. Under what circumstances it happened is not at this stage clear, but the sellers were paid the full price – without the remaining bond costs of about R27 000 and the outstanding rates being first deducted. Once the sellers received the money they refused to cooperate and since then have continued in possession of both the R50 000 and the house, refusing both to sign the papers necessary to transfer ownership and to return the purchase price paid.

Whitesides, the legal firm appointed by the sellers, suggested that Mtati might rescue the situation if he paid the outstanding bond amount himself, and helped him obtain a loan for that purpose from Rhodes University where Mtati works as a cleaner. The sellers, however, still refused to cooperate.

At this stage Mtati realised that the sellers would not budge, and he found an attorney who sued Whitesides, claiming negligence. At the Magistrate’s Court the two sides disputed how it happened that the funds had been paid to the sellers in full, but the issue was not resolved as Whitesides successfully claimed prescription.

On appeal, three High Court judges upheld the prescription point and awarded costs against Mtati, who has now lost his R50 000, and has apparently no chance of ever getting the house for which he has paid in full. To add insult to considerable injury, he must also pay Whitesides’ legal costs.

Obviously, the facts of the two cases are very different, with Masindi’s matter involving just one day’s delay and a statute described by the appeal court as ‘social legislation’. But there is another difference: the attitude of the courts. The appeal court spoke of its concern to find out how to interpret the statute in a way that would not cause injustice. In Mtati’s case, however, the complete absence of any expression of concern from the court – even if the judges felt their hands were tied – was startling and created the impression that the judges were not troubled about the injustice resulting from Whitesides’ successful invocation of prescription.

Since publication of the judgment, Mtati’s case has raised widespread concern on social media, and various public efforts are being planned in response.

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(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)

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