The Supreme Court of Appeal (SCA) has considered the application of the Prescription Act where a claim for damages is filed by a curator on behalf of a person suffering from a mental or intellectual disability, disorder, or incapacity.
In terms of section 13(1) of the Prescription Act, if a claim prescribes while a creditor is suffering from an impediment listed in this section – such as being a minor, mentally impaired or under curatorship – the creditor will have one year from the date on which the impediment falls away to institute action, to interrupt prescription.
The issue before the SCA was whether the impediment referred to in section 13(1)(a) ceased when a curator was appointed.
According to the judgment, in October 2014, an employee of Smollan Sales & Marketing, which provides merchandising services to retail stores, was working as a packer at the Checkers Hyper in Meadowdale Shopping Mall, Edenvale. She climbed into a cage coupled to a forklift to pack merchandise on shelves. The cage was lifted about four metres from the shop floor. The cage tilted and ejected the worker, causing her to fall to the floor. The cage, which was dislodged from the forklift, came tumbling down and struck her on the head. She was severely injured and rendered permanently mentally incapacitated.
On 1 February 2017, Cecil Mafate, a practising attorney, was appointed as the employee’s curator ad litem. (It is unclear why the curator was appointed three years after the incident.)
Mafate instituted proceedings for damages against Shoprite Holdings Limited in the High Court. The action was founded in delict and based on Shoprite Holdings’ alleged wrongful and negligent conduct.
On 28 July 2017, Shoprite Holdings raised two special pleas of misjoinder and non-joinder, asserting it was not the owner of the store at the time of the incident; instead Shoprite Checkers (Pty) Ltd was.
About 11 months later, on 28 June 2018, Mafate withdrew the action against Shoprite Holdings. But he only instituted fresh proceedings against Shoprite Checkers on 15 October 2018. The summons was served on 19 October.
Shoprite Checkers filed a special plea of prescription to the curator’s October 2018 summons, asserting that the claim had prescribed.
In a judgment handed down in January 2021, the High Court in Johannesburg dismissed the special plea of prescription with costs. It subsequently granted Shoprite Checkers leave to appeal.
Shoprite Checkers’ case
Before the SCA, Shoprite Checkers contended that because Mafate was appointed as curator on 1 February 2017, the impediment preventing the claim from being filed ceased on that date. Consequently, Mafate should have instituted the action within one year after 1 February 2017. But he instituted the action in October 2018. By then, asserted Shoprite Checkers, the claim had prescribed, having prescribed on 2 February 2018.
Curatorship does not end the impediment
The SCA held it was common cause that the worker was still suffering from a debilitating mental incapacity.
It said section 13(1)(a) was explicit that apart from mental or intellectual disability, disorder or incapacity, a creditor under curatorship falls within the category of creditors who are subject to the provisions of section 13(1), which means that the relevant period of prescription would not be completed before a year has lapsed after the date on which the impediment referred to in section 13(1)(i) ceases to exist.
The court emphasised that placing a person under curatorship is in itself an impediment and does not bring about a cessation of an impediment. Therefore, in her situation, the worker’s impediment would cease to exist only when she recovered from her mental or intellectual disability, disorder or incapacity.
The SCA said the curator “inexplicably failed – at least from what is before us – to act with expedition, and his inaction for more than a year remains unexplained”. However, the court said it was not necessary to delve into this aspect in light of the conclusion reached as to the import of section 13(1).
The SCA dismissed Shoprite Checkers’ appeal with costs. However, this does not mean the claim will be paid.
