The Supreme Court of Appeal confirmed that in circumstances where a claimant is mentally incapacitated, the completion of the period of the prescription of a claim would not occur for as long as the mental health impediment exists. Placing a claimant under curatorship is in itself an impediment. It does not bring about a cessation of the mental incapacity impediment in terms of section 13(1) of the Prescription Act (the Act).

The claimant was employed as a packer by a company which rendered merchandising services to retailers such as the defendant. Whilst on duty, the claimant was severely injured, which resulted in her being permanently mentally incapacitated.

The claimant was appointed as curator and instituted a damages claim on her behalf. The first action instituted was withdrawn because the curator had sued the incorrect entity. When the second action was instituted (against the defendant), the defendant raised a special plea that the claimant’s claim against the defendant had prescribed. On the curator’s version, he only became aware of the details of the debtor (being the defendant) after the first action was withdrawn as special pleas of misjoinder and non-joinder were raised in the first action, thereby directing him to the identity of the defendant.

It was common cause that the claimant had suffered mental or intellectual disability as a result of her injuries rendering her incapable of acquiring knowledge as to the identity of the true debtor.

The SCA found that where a creditor is a curator, the completion of the relevant period of prescription would not occur before a year has elapsed after the date on which the impediment ceases to exist. Placing a person under curatorship does not bring about a cessation of an impediment.

The fact that a curator was appointed to pursue her claim, reinforces the proposition that she could not do so on her own. The court explained that the impediment will therefore cease to exist only if the claimant’s mental incapacity ceases.

This judgment re-enforces the position that the claim of a mental incapacitated person does not prescribe for as long as the claimant does not have mental capacity. A claimant’s impediment would cease to exist only when the claimant recovers from the mental or intellectual disability, disorder or incapacity despite the appointment of a curator.

Shoprite Checkers (Pty) Ltd v Mafate [2023] ZASCA 14 (17 February 2023)