THE SUPREME COURT OF APPEAL
OF SOUTH AFRICA

Reportable
Case no:
111/2002

In the matter between:

THE ROAD ACCIDENT FUND
Appellant

and

RHESIA SCHOLTZ
Respondent

_______________________________________________________

Coram:
Streicher, Navsa JJA and Jones AJA

Date of hearing: 20 May 2003

Date of delivery: 3 June 2003

Summary:
Interpretation of articles 55, 56 and 57 of Multilateral Motor Vehicle
Accidents Fund Act 93 of 1989   five-year prescription period in
article 57 does not run against a minor.

_______________________________________________________

JUDGMENT
_______________________________________________________

NAVSA JA:
[1] The appellant ('the Fund') is a statutory insurer established in
terms of section 2 of the Road Accident Fund Act 56 of 1996 and is
the successor to the Multilateral Motor Vehicle Accidents Fund, which
was established in terms of the Multilateral Motor Vehicle Accidents
Fund Act 93 of 1989 ('the Act').
[2] The respondent was allegedly injured in a motor vehicle
collision where the identity of the driver who allegedly caused the
collision was established. The respondent instituted a claim for
compensation in the Transvaal Provincial Division of the High Court
against the Fund in terms of the Act, which at the time of the collision
was the applicable legislation. At the commencement of proceedings
in that court the parties agreed that the issue of prescription raised in
the Fund's special plea should be separated from the merits and
quantum and should be heard first, against the backdrop of a stated
case.
[3] Swart J, who heard the matter, decided the issue of prescription
against the Fund, dismissing the special plea with costs. The present
appeal with the leave of this Court is against that decision.
[4] The stated case as recorded by the Court below is set out
hereunder:

‘1.
The collision occurred on 3 June 1994.

2.
The plaintiff was born on 24 March 1976.
3.
The plaintiff’s claim was to be adjudicated on in accordance with the
provisions of the Multilateral Motor Vehicle Accident Fund Act, Act 93
of 1989.
4.
The plaintiff’s claim was timeously lodged with the defendant on 29
February 2000.
5.
The summons was served on the defendant on 20 July 2000.
6.
It is the plaintiff’s contention that the summons was served timeously.
7.
The defendant contends that the summons was served at the time
when the plaintiff’s claim had already become prescribed.’
[5] The question in this appeal is which of the two contentions set
out in paras 6 and 7 of the stated case is correct. Chapter XVIII of the
Agreement which has the force of law in terms of the Act is entitled
Prescription of Claim and contains the applicable provisions, the
interpretation of which provides the answer. The three applicable
articles are set out in the following three paragraphs.
[6] Article 55 provides:

‘Notwithstanding the provisions of any other law relating to prescription,
but subject to the provisions of Articles 56 and 57, the right to claim
compensation under Chapter XII from the MMF or an appointed agent in respect
of claims arising from the driving of a motor vehicle in the case where the identity
of either the owner or driver thereof has been established, shall become
prescribed upon the expiry of a period of three years from the date upon which
the claim arose.’

[7] Article 56 reads as follows:

‘Prescription of a claim for compensation referred to in Article 55 shall not
run against
(a)
a minor;
(b)
any person detained as a patient in terms of the provisions of mental
health legislation applicable within the area of jurisdiction of a Member; or
(c)
a person under curatorship.’
[8] Article 57 provides:

‘Notwithstanding the provisions of Article 55, no claim which has been
lodged under article 62 shall prescribe before the expiry of a period of five years
from the date on which the claim arose.’
[9] As can be seen from the stated case the respondent was a
minor at the time of the collision. It was correctly accepted by the
Fund that the three-year prescription period set out in article 55 would
in terms of article 56 (a) only start running from the time that she
became a major. The respondent’s claim was lodged with the Fund
on 29 February 2000 in terms of article 62 of the Act by the
completion of the prescribed forms and the submission of the
necessary information. In terms of article 55 read with article 56 the
claim was therefore lodged within a three-year period after the
plaintiff became a major.
[10] The summons as can be seen from the stated case was issued
on 20 July 2000, more than five years after the collision but less than

five years from the time the respondent attained the age of majority.
It was contended by the respondent that, as was the case with the
three-year period referred to in article 55, the five-year period referred
to in article 57 only starts running after a minor becomes a major and
that consequently the summons was issued timeously.
[11] The Fund contended that in terms of article 57 the five-year
prescription period starts running from the time of the event which
gave rise to the claim, namely, the collision, and unlike the three-year
prescription period in article 55 prescription in respect of the former is
not suspended in the case of a minor, and consequently the plaintiff's
claim had become prescribed.
[12] The following are the submissions on behalf of the Fund in
support of the aforesaid contention:
(i)
Article 57 has not been made subject to article 56 with the
result that the suspension of prescription that operates in
favour of minors and others with legal disabilities provided
for in article 56 does not extend to article 57.
(ii)
Article 57 does not itself provide for the prescription of a
claim and is therefore not qualified by the provisions of
article 56.
(iii)
Article 56 expressly states that the prescriptive period set
out in article 55 does not run against minors and others with

legal disabilities whilst there is no corresponding provision
in respect of article 57.
I shall deal with each of these submissions in turn.
[13] It is true that article 57 does not in terms state that it is subject
to article 56. However, article 55, including the prescriptive period
referred to therein, has been made subject to articles 56 and 57. It
follows that article 55 is qualified by what is set out in those two
articles. Its provisions must be read subject to and in conjunction with
the provisions of articles 56 and 57.
[14] There is no merit in the appellant’s submission that article 57
does not contain a prescriptive period. When articles 55, 56 and 57
are read together it is clear that the prescriptive period in respect of
claims referred to in article 55 is three years, but in the event of such
a claim having been lodged under article 62, before having become
prescribed, the prescriptive period is 5 years subject, however, to the
provisions of article 56.
[15] The opening words of article 56 read: ‘Prescription of a claim
for compensation referred to in article 55 shall not run against . . .'.
The appellant submitted that the words ‘referred to in article 55'
qualify the word 'prescription'. For that reason, so the submission
went, s 56 suspends the prescription period referred to in s 55 and
not the prescription period referred to in s 57. I do not agree. In my

view the words 'referred to in article 55' qualify the words 'a claim for
compensation' and not the word ‘prescription’.

[16] Before their amendment in 1993 by Proclamation 62 of 16 July
1993, articles 55 and 56 read as follows (article 57 remained as it
was):

’55.
Notwithstanding the provisions of any other law relating to
prescription, but subject to the provisions of Articles 56 and 57, the right to
claim compensation under Chapter XII from an appointed agent in respect
of claims referred to in Article 13 (b) shall become prescribed upon the expiry
of a period of three years from the date upon which the claim arose.
56.
Prescription of a claim for compensation under Article 13 (b) and
Chapter XII shall not run against:
(a)
a minor;
(b)
any person detained as a patient in terms of the provisions of mental
health legislation applicable within the area of jurisdiction of a Member; or
(c)
a person under curatorship.’
(emphasis added)
A ‘claim for compensation under article 13(b) and Chapter XII’ is a
claim 'contemplated in article 40 of the Agreement, arising from the
driving of a motor vehicle in the case where the identity of either the
owner or driver thereof has been established.

[17] Reading article 57 with article 56 prior to its amendment there
can be no doubt that prescription in terms of article 57 did not run
against a minor whose claim for compensation was a claim under
article 13(b) and had been lodged under article 62. Article 57 contains
a prescriptive provision and article 56 specifically states that
prescription of such a claim shall not run against a minor.

[18] In the amended article 55 the words ‘the right to claim
compensation under Chapter XII from an appointed agent in respect
of claims referred to in article 13(b)' were replaced with the words 'the
right to claim compensation under Chapter XII from the MMF or an
appointed agent in respect of claims arising from the driving of a
motor vehicle in the case where the identity of either the owner or
driver thereof has been established'. This amendment necessitated
an amendment of the description of the relevant claim in article 56. In
terms of the resultant amendment the words ‘a claim for
compensation under article 13(b) and Chapter XII' were replaced with
the words ‘a claim for compensation referred to in Article 55'. Instead
of unnecessarily repeating the long description of the relevant claim
the amended article 56 simply describes the relevant claim by
reference to the description in article 55. If the intention was that the
words 'referred to in Article 55' should qualify the word 'prescription'

that intention would, in the light of prior wording of the articles have
been made clear by simply wording the article: 'Prescription referred
to in Article 55 shall not run . . .'

[19] It follows that in terms of article 56 the running of both the
prescriptive period of 3 years and the period of 5 years provided for in
articles 55 and 57 respectively in respect of a claim referred to in
article 55 are suspended during the minority of the claimant
provided, in the case of article 57, that the claim is a claim that has
been lodged under article 62.

[20] In support of its submissions the Fund relied on an unreported
judgment of Stegmann J in the Johannesburg High Court in Toerien
and Others v Padongelukkefonds (Case no: 28030/96-WLD). In that
case the learned judge was dealing with the unusual situation of
plaintiffs who sought an amendment of the pleadings after he had
made a ruling on the merits of their claim. Stegmann J was
concerned with the question whether just cause was shown for the
amendments and found against the plaintiffs. In his judgment he dealt
briefly with articles 55, 56 and 57 and concluded that the five-year
period set out in article 57 runs against a minor. Stegmann J set out

the provisions of the three articles in question in their entirety but
supplied no reasons for this conclusion. Counsel for the plaintiffs in
the case before Stegmann J appears to have made no submissions
to the contrary. If they were made the learned judge did not record
them.  For the reasons set out earlier the conclusion reached by
Stegmann J about the meaning and effect of the three articles in
question is clearly wrong.
[21] For the reasons stated earlier the appeal must fail. The
following order is made:
1.
The appeal is dismissed with costs.

______________
M S NAVSA
JUDGE OF APPEAL
CONCUR:

STREICHER JA
JONES AJA