APDOL V ROAD ACCIDENT FUND 2013(2) SA 287 (GNP)
This case had presented itself before Prinsloo J at the North Gauteng High Court, Pretoria. This case is of importance because it concerned itself with the effect of the reduction of the age of majority from 21 to 18 in terms of the Children’s Act 38 of 2005 and the effect that this would have on a minor’s damages claim in terms of the Road Accident Fund Act 56 of 1996 and in particular Prescription.
Prescription, simply put, is the time period allowed within which an individual may institute an action or submit his or her claim. The Road Accident Fund Act 56 of 1996 provides that an individual would have a period of 3 years, from the date of accident, within which to submit his or her claim if the details of the negligent party are known alternatively, 2 years from the date of accident if the details of the negligent party are “unknown”. In respect of minors, Prescription will only commence once that minor has attained the age of majority unless the details of the negligent party are “unknown” in which case Prescription will commence from the date of the accident.
The facts in the above mentioned case are as follows:
- Apdol had instituted a claim to be compensated for Loss of Support against the Road Accident Fund on the 25th August 2010 as a result of the death of her breadwinner in a motor vehicle accident that occurred on the 19th June 2004. She was approximately 16 years old at the time of death of her breadwinner and approximately 22 years old when she had instituted her claim for compensation;
- Summons had been instituted on the 27th January 2011 which had been served on the Road Accident Fund on the 7th February 2011. The Road Accident Fund subsequently raised a Special Plea of Prescription;
- The Road Accident Fund had argued that Apdol had attained the age of majority on the 01st July 2007 with the commencement of the Children’s Act 38 of 2005. Section 17 of the Children’s Act states “ A child, whether male or female, becomes a major upon reaching the age of 18 years”. Therefore she should have instituted her claim on or before the 30th June 2010 and Apdol’s claim is Prescribed as she only submitted her claim on the 25th August 2010.
The issue before the court was whether or not to uphold the Road Accident Funds Special Plea of Prescription.
The court had ordered the Road Accident Funds Special Plea on Prescription be dismissed with costs. The court gave following reasoning for its decision :
- PrinslooJ, considered S12 of the Interpretation Act 33 of 1957 to be the most important statutory provision in this matter. S12 deals with the effect of the repeal of a law and reads as follows :
“(1) Where a law repeals and re-enacts, with or without modifications, any provision
of a former law, references in any other law to the provision so repealed shall,
unless the contrary intention appears, be construed as references to the provision
(2) Where a law repeals any other law, then unless the contrary intention appears, the
repeal shall not –
(a) Revive anything not in force or existing at the time at which the repeal takes effect; or
(b) Affect the previous operation of any law so repealed or anything duly done or suffered under the law so repealed; or
(c) Affect any right, privilege, obligation or liability acquired, accrued or incurred under any law so repealed; or
(d) Affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any law so repealed; or
(e) Affect any investigation, legal proceedings or remedy in respect of any such right, privilege, obligation, liability, forfeiture or punishment as is in this subsection mentioned,
And any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing law had not been passed.”
Prinsloo J stated that if argument of the Road Accident Fund were indorsed by the court it would be contradictory of S12(2) of the Interpretation Act.
- Prinsloo J also made reference to the rights of children in terms of Section 28 of Chapter 2 of the Bill of Rights and Constitution and concluded that allowing the Children’s Act 38 of 2005 retrospective effect will not promote the spirit, purport and objects of the Bill of Rights.
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