THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Reportable
Case no: 586/2017
In the matter between:

ROAD ACCIDENT FUND
APPELLANT

and

KHATHUTSHELO GLADYS MASINDI
RESPONDENT

Neutral citation: Road Accident Fund v Masindi (586/2017) [2018] ZASCA 94 (1 June
2018)

Bench:
Shongwe ADP, Majiedt, Swain and Mocumie JJA and Rogers AJA

Heard:
18 May 2018
Delivered:        1 June 2018

Summary: Road Accident Fund Act 56 of 1996 as amended by the Road Accident
Fund Amendment Act 19 of 2005 – s 23(3) of the RAF Act – statutory
interpretation – s 4 of the Interpretation Act 33 of 1957 – regulation 1 under the
RAF Act – whether a claim that was due to be served on the last day of the five

year prescription period which last day fell on a public holiday had prescribed –
application of s 34 and s 39 of the Constitution – consideration of foreign law.

__________________________________________________________________

ORDER
__________________________________________________________________

On appeal from: Gauteng Local Division of the High Court, Johannesburg
(Mbongwe AJ sitting as court of first instance):

The appeal is dismissed with costs.
__________________________________________________________________

JUDGMENT
__________________________________________________________________

Mocumie JA (Shongwe ADP, Majiedt, Swain, JJA and Rogers AJA
concurring):
[1] This appeal concerns the question of how the five year prescription period
applicable to the respondent’s claim should be computed, in circumstances where
the last day of the five year period, strictly calculated, falls on a day when the court
is closed so that summons cannot be issued and served. In the present case, the last
day fell on Monday, 16 June 2014, a public holiday, so the court was closed. The
court was also closed on the preceding Saturday and Sunday. The last day on
which the court was open during the five-year period, strictly computed, was
Friday, 13 June 2014.

[2] Before I proceed to deal with the merits there is one preliminary issue that
requires attention first: the application for the late filing of the notice of appeal by

the appellant. On 12 June 2015, the high court dismissed the special plea of the
appellant with costs. On 31 July 2015, the high court granted leave to appeal. On
19 April 2017 (21 months later), the one month prescribed by rule 7 of the Rules
Regulating the Conduct of the Proceedings of the Supreme Court of Appeal for
lodging/filing the notice of appeal, the appellant filed its notice of appeal and
application for condonation citing numerous unsatisfactory reasons. The
respondent was unhappy about this lateness. However, because of the importance
of the issues in this matter and the fact that this court is not in agreement with the
reasoning of the high court – although in agreement with the order granted – the
application for condonation is granted.

[3] The factual background is as follows. On 17 June 2009, the respondent, Ms
Khathutshelo Gladys Masindi, had her minor daughter on her back when she was
hit by the insured vehicle. As a consequence of the negligence of the insured
driver, she and her minor child suffered severe bodily injuries. Subsequently, in
June 2014, the respondent (as plaintiff) instituted an action against the appellant in
the high Court for compensation arising out of the accident in terms of s 17(1) of
the Road Accident Fund Act 56 of 1996 (the RAF Act). It was alleged in her
particulars of claim that she had suffered severe bodily injuries and consequently
suffered damages estimated at R 1 950 000. Initially the appellant filed a plea to
the respondent’s particulars of claim. But it subsequently added a special plea of
prescription. The appellant conceded the merits and reached a settlement on both
the merits and quantum, slightly adjusted to one million rand. Thereafter, the high
court only adjudicated upon the special plea of prescription. On 12 June 2015, the
special plea came before the high court for determination. The high court
dismissed the appellant’s special plea with costs. It found that the strict and literal
interpretation of s 23(3) of the RAF Act propounded by the appellant did not

accord with justice; that it could not have been the intention of the legislature to
deprive the plaintiff of her full prescription period of five years. It applied s 4 of
the Interpretation Act 33 of 1957 (the Interpretation Act) citing in support of its
approach this court’s judgment in Nedcor Bank Ltd v The Master of the High Court
(Pretoria) & others.1
Aggrieved by the dismissal of its special plea, the appellant appeals with leave of
the high court.

[4] The appeal turns on the correct interpretation of s 23(3) of the RAF Act and
the essential issue in this court, as it was in the high court, is how the five year
prescription period applicable to the respondent’s claim should be computed.

[5] It is convenient to set out the relevant provisions of the RAF Act which are
contained in ss 17 and 23. It is also apposite at this stage to refer to s 4 and
regulation 1 under the RAF Act. The gateway for compensation under the
RAF Act is s 17(1) which establishes the liability of the appellant to compensate
third parties for damages arising from the driving of a motor vehicle.2 Section 23 of
the RAF Act regulates the prescription of claims under the Act. Section 4 of the
Interpretation Act sets out the reckoning or computation of a period expressed in a
number of days; contrasted to other methods.3 Regulation 1 under the RAF Act4
explains what ‘a day’ entails when interpreting s 4 of the same Act.

1 Nedcor Bank Ltd v The Master of the High Court (Pretoria) & others [2001] ZASCA 106; [2002] 2 All SA 281
(A).
2 Road Accident Fund v Abrahams (276/2017) [2018] ZASCA 49.
3 According to Joubert ed The Law of South Africa vol 27 paras 225, 227 and 229 there are generally three methods
which can be employed to determine a period expressed in a number of days:
i) the statutory method enacted by s 4 of the Interpretation Act;
ii) the civilian method; and
iii) the clear days method.3
4 Regulation 1 of the regulations promulgated in terms of the RAF Act : R770 published in Government Gazette
31249 of 21 July 2008.

[6] Section 17(1) reads:
‘ The Fund or an agent shall – (a) subject to this Act, in the case of a claim for compensation
under this section arising from the driving of a motor vehicle where the identity of the owner or
the driver thereof has been established; (b) subject to any regulation made under section 26, in
the case of a claim for compensation under this section arising from the driving of a motor
vehicle where the identity of neither the owner nor the driver thereof has been established, be
obliged to compensate any person (the third party) for any loss or damage which the third party
has suffered as a result of any bodily injury to himself or herself or the death of or any bodily
injury to any other person, caused by or arising from the driving of a motor vehicle by any
person at any place within the Republic, if the injury or death is due to the negligence or other
wrongful act of the driver or of the owner of the motor vehicle or of his or her employee in the
performance of the employee’s duties as employee: Provided that the obligation of the Fund to
compensate a third party for non-pecuniary loss shall be limited to compensation for a serious
injury as contemplated in subsection (1A) and shall be paid by way of a lump sum…’

[7] Section 23 reads:
‘(1) Notwithstanding anything to the contrary in any law contained, but subject to subsections (2)
and (3), the right to claim compensation under section 17 from the Fund or an agent in respect of
loss or damage arising from the driving of a motor vehicle in the case where the identity of either
the driver or the owner thereof has been established, shall become prescribed upon the expiry of
a period of three years from the date upon which the cause of action arose.
(2) …
(3) Notwithstanding subsection (1), no claim which has been lodged in terms of section 17(4)(a)
or 24 shall prescribe before the expiry of a period of five years from the date on which the cause
of action arose.’5

[8] Section 4 of the Interpretation Act provides:
‘When any particular number of days is prescribed for the doing of any act, or for any other
purpose, the same shall be reckoned exclusively of the first and inclusively of the last day, unless

5 Subsection (3) substituted by section 10 of Act No. 19 of 2005 with effect from 1 August 2008.

the last day happens to fall on a Sunday or on any public holiday, in which case the time shall be
reckoned exclusively of the first day and exclusively also of every such Sunday or public
holiday.’(My emphasis)

[9] Regulation 1 under the RAF Act provides that ‘a day’ means any day other
than a Saturday, Sunday or public holiday. This is the regulation which according
to counsel for the respondent, this court could invoke to interpret s 23(3) of the
RAF Amendment Act. I disagree with this submission. It is trite that regulations
are subordinate to Acts of Parliament. As a general rule, regulations cannot be used
to interpret any piece of legislation where there is ambiguity. In any event, the
regulations do not purport to regulate how ‘day’ must be interpreted in any setting
other than the regulations themselves. We are not concerned in this case with any
act performed in terms of the regulations, but with the interpretation of s 23(3) of
the RAF Act, a section which, does not even use the word day.

[10] In this court, counsel for the appellant contended that the respondent’s claim
was based on an accident that occurred on 17 June 2009. She had to serve the
summons prior to midnight on 16 June 2014 to interrupt prescription. The high
court was wrong, so the argument went, when it relied on s 4 of the Interpretation
Act because that section only applies to periods expressed in days whereas s 23(3)
expresses a period in years. Flowing from that, counsel contended further that
because s 23(3) of the RAF Act stipulates that ‘no claim which has been lodged in
terms of s 17(4)(a) or s 24 shall prescribe before the expiry of a period of five years
from the date on which the cause of action arose;’ this meant that the claim
prescribed on the last day of the period of five years from the date on which the
cause of action arose. For that reason, he argued that the respondent had to do
everything that had to be done, such as issuing and serving the summons, on or
before the last day of the five years ie 16 June 2014; if necessary by ensuring that

the summons was served by not later than 13 June 2014. He contended, that the
clear and unambiguous language of the legislature could not be departed from
unless the plain meaning would result in an absurdity not intended by the
legislature.6 He submitted further, that the mere issuing of a summons has no effect
on the prescription period as prescription can only be interrupted by service of the
summons. He submitted further that the respondent could have effected service of
the summons on Monday regardless of the fact that Monday was a public holiday.
This is so because service in the high courts in South Africa is provided for in
terms of rule 4 of the Uniform Rules of Court. The rule provides that service can
be effected in different ways, including affixing to the principal door of the place
of the business of the appellant. The appellant’s offices need not have been open
on the public holiday in order for service to have been effected, provided the
respondent had by then procured the issue of summons, if she issued same on any
other day including 13 June 2014 to beat the deadline of the five year prescription
period.

[11] I agree with counsel for the appellant that the high court should not have
invoked s 4 the Interpretation Act to come to the rescue of the respondent. Nor
should it have used the definition of ‘a day’ as defined in regulation 1 to come to
the conclusion that even though s 23(3) of the RAF Act specifically refers to years,
to avoid any injustice to the respondent, this section can be interpreted to include
Sundays and public holidays. The high court also erred in relying on the analogy
which this court drew between s 23(3) of the RAF Act and s 40(2) of the
Insolvency Act in Nedcor for reasons not relevant for purposes of this matter.

6 See Kleynhans v Yorkshire Insurance Co Ltd 1957 (3) SA 544 (A) at 549F.

[12] I however do not agree with the approach and construction of s 23(3) of the
RAF Act which is propounded by counsel for the appellant. In considering the
proper interpretation of s 23(3) of the RAF Act, this case requires this court by
means of statutory interpretation to strike a balance between an infringement of the
guaranteed right of access to courts7 and the objective of statutory time limits
whose function is ‘bringing certainty and stability to social and legal affairs and
maintaining the quality of adjudication’.8 A good place to start is the Constitution.
Section 34 enshrines the right of access to courts and states that ‘everyone has the
right to have any dispute that can be resolved by the application of law decided in a
fair public hearing before a court or, where appropriate, another independent and
impartial tribunal or forum.’ Section 39(1)(b) of the Constitution provides that
when interpreting the Bill of Rights, a court must consider international law.
Section s 39(1)(c) provides that a court may consider foreign law when engaged in
the interpretation of the Bill of Rights.

[13] On the facts of this matter, the crucial date is the date of the service of the
summons on the appellant (17 June 2014). Viewed in isolation, there is a plausible
basis in the argument of counsel for the appellant that the clear and unambiguous
language of s 3(3) dictates that the last day of the five year period fell on 16 June
2014. This approach may well be consistent with the language of the section and
the concern to ensure certainty9 but such a strict and literalist approach may defeat
the very protection afforded by s 34 of the Constitution to the respondent. The
RAF Act is social legislation, the primary concern of which is to give the greatest
possible protection to persons who have suffered loss through negligence or
unlawful act(s) on the part of a driver or owner of a motor vehicle. In Mtokonya v

7 Section 34 of the Constitution.
8 Road Accident Fund and another v Mdeyide [2010] ZACC 18; 2011 (1) BCLR 1 (CC); 2011 (2) SA 26 (CC) para
8.
9 Mdeyide above para 8.

Minister of Police10 the Constitutional Court observed that ‘the process of
interpreting statutes was described in detail in Makate.11It entails giving a statutory
provision a meaning that does not only avoid limiting rights guaranteed by the Bill
of Rights but also prefers a meaning that promotes those rights.’ In this context, we
are bound to give a more purposive interpretation than that propounded by the
appellant.

[14] However, a search for South African precedents or even similar authorities
on this crisp issue yielded no results. Sections 39(1)(b) and (c) of the Constitution
enjoin this court to consider foreign and international law. Whereas s 39(2)
provides for the development of common law or customary law to promote the
spirit, purport and object of the Bill of Rights. Although the English law and
practices are different from ours, we can still draw some lessons from English
authorities by interpreting the law to afford the respondent a benefit of striking the
balance between the various legislations and practices. This exercise should not be
viewed as extending the period prescribed by the legislature but rather as
determining the period intended by the legislature so as to avoid an injustice which
the legislature could not have contemplated.

[15] In such exercise, two judgments of the English courts bear reference: Pritam
Kaur v S Russel & Sons12and the recent case of Nottingham City Council and
Calverton Parish Council13 in which the court surveyed the cases since Pritam
Kaur. Among the intervening cases is the decision of the House of Lords in

10 Mtokonya v Minister of Police [2017] ZACC 33; 2017 (11) BCLR 1443 (CC) para 111.
11 Makate v Vodacom (Pty) Ltd [2016] ZACC 13; 2016 (6) BCLR 709 (CC); 2016(4) SA 121 (CC) paras 87-93.
12 Pritam Kaur v S Russel & Sons Ltd [1973] 1 QB 336; [1973] 2 WLR 147; [1972] 1 ALL ER 306.
13 Nottingham City Council v Calverton Parish Council [2015] EWHC 503 (2 March 2015); [2015] WLR (D) 99
[2015] PTSR 1130.

Mucelli v Government of Albania [2009] UKHL 2; [2009] 1 WLR. 276 where Lord
Neuberger in paras 83-84 specifically endorsed Pritam Kaur.

[16] Pritam Kaur14 concerned a statutory time limit relating to a claim under the
Fatal Accidents Act 1846. In this case the plaintiff sought damages following the
death of her husband when working for the defendant. The limitation period
expired on Saturday 5th September 1970. The writ was issued on the following
Monday. The question was whether the law maker intended, in such a case, that the
period would only expire on the next day on which the court offices were open.
Lord Denning found that the arguments of both sides were evenly balanced that it
could come down either way. He concluded:
‘…I am prepared to hold that, when a time is prescribed by statute for doing any, and that act can
only be done if the court office is open on the day when the expires, then, if it turns out in any
particular case that the day is a Sunday or any other dies non, the time extended until the next
day on which the court office is open.’15
By so doing, he opined, ‘we make the law consistent in itself; and avoid confusion
to practitioners.’16

[17] In Nottingham, the City Council brought an application to strike out a claim
instituted by Calverton Parish Council in terms of s 113 of the Planning and
Compulsory Purchase Act 2004 for an order quashing a development plan
document which contains the Core Strategy adopted by the City Council. In terms
of the section, the application needed to be made within six weeks from the date of
the adoption of the plan. The central issue was whether, when the last day for
making an application falls on a date when the relevant office is closed so that the

14 Pritam Kaur above.
15 Reference is made by the court in Pritam Kaur to Hughes v Griffiths (1862) 13 CBNS at 333 and some earlier
more equivocal decisions.
16 Pritam Kaur above.

application cannot be made on that day, s 113(4) is to be interpreted so that the
period of six weeks for making an application ends on the next working day when
an application in this case would end on Monday 20 October 2014 and the claim
would be barred by s 113(4). Endorsing the judgment of Pritam Kaur, the court
held that, on a proper interpretation of s 113(4), where the six week period for
bringing a claim would end on a day when the court is closed, so that an
application to quash a development plan document cannot be made on that day, the
six week period will end on the next working day. The statutory provision is to be
interpreted as permitting the proceedings to be brought on the next day when the
court office is open…’

[18] Based on his survey of the cases, Lewis J expressed his conclusion thus
(para 33):
‘In my judgment, the approach set out in Kaur and approved and followed in other cases, sets out
a general approach to the interpretation of statutory provisions prescribing periods within which
proceedings must be brought. I recognise that the precise provisions of a particular statute may
be such that a different approach is called for in relation to that particular statute. 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.’

[19] The principle set out in these two cases provides the answer which ties in
with the protection afforded to the respondent in s 34 and in general, the
interpretation provided in ss 39(1)(b)(c) and (2) of the Constitution. Applying this
approach to the facts of this matter, the respondent could not have issued the
summons on 16 June 2014 as it was a public holiday. It was therefore 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. To interpret
the law with the result that the respondent fails to enjoy the full benefit of the five
year period – as she is entitled to – would result in an injustice and prejudice to
her.

[20] 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 the
respondent of her right to claim which is an absurdity which the legislature could
not have contemplated. 17In this case, the consequences would be too harsh to the
respondent as opposed to the appellant. The approach and exercise embarked upon
in this case, must be on a case by case basis.

[21] Unlike the English authorities, on which jurisprudence counsel for the
appellant relied, in South Africa, nothing stops one from issuing and serving
summons on the same day. Thus, had the court been open on Sunday (weekend) or
Monday (the public holiday), it would have been possible for the respondent to
have issued and served the summons on that very day without the risk of being out
of time. In conclusion, the high court was correct to dismiss the special plea of
prescription.

[22] With regards to costs, it is trite that a party that is successful is entitled to its
costs. The respondent is the successful party as the appeal is dismissed. It follows
as a matter of principle that costs should follow the result.18 In so far as the

17 See Stopforth v The Minister of Justice & others; Veenendal v The Minister of Justice & others 1999 (2) SACR
529 (SCA) at 536 D-H with reference to Venter v R 1907 TS 910 at 914-5.
18 Affordable Medicines Trust & others v Minister of Health & others 2006 (3) SA 247 (CC); 2005 (6) BCLR 529

entitlement of the amicus curiae to costs, there is no basis for such an order. First,
the facts of the matter which the amicus curiae relied upon (Munene Christina
Ntsandeni vs Road Accident Fund19) to show its interest in this matter, are
distinguishable from the facts of this matter. The interpretation this court was
bound to adopt in respect of the social legislation under discussion in this matter,
the RAF Act, had to be based on the Constitution (ss 34 and 39). The amicus
curiae did not raise any novel point. The English cases which this court has found
helpful were raised by the court itself, not by the parties or by the amicus curiae.
Therefore it is not entitled to any costs order in its favour.

[23] It is for the reasons set out above that I am of the view that, the order of the
high court should be confirmed albeit for different reasons. In the result, I grant the
following order.

Order
The appeal is dismissed with costs.

B C Mocumie
Judge of Appeal

(CC) para 138; Biowatch Trust v Registrar; Genetic Resources & another 2009 (6) SA 232 (CC) paras 21-23.
19  Munene Christina Ntsandeni v Road Accident Fund Case No 19158/2015; GJ 21738/2014 (16 March 2015).

APPEARANCES:

For Appellant:

HC Keyter

Instructed by:

Mahararaj & Associates, Johannesburg

Matsepe Inc, Bloemfontein

Amicus Curiae:

SO Ravele

Instructed by:

FN Ravele, Louis Trichardt

Phatsoane Henney Attorneys, Bloemfontein

For Respondent:

T Tshitereke with E Mmila

Instructed by:

Nemavhulani Attorneys, Johannesburg

Webbers, Bloemfontein