The Constitutional Court re-enforced the principle 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 capacity impediment exists. The placement of a claimant under curatorship does not result in a cessation of the mental incapacity impediment in terms of section 13(1) of the Prescription Act. Specifically, the stipulated prescription period of one year is calculated from the date of cessation of the relevant impediment.

The claimant was employed as a packer by a company which rendered merchandising services to retailers. Her duties included being lifted in a cage attached to a forklift in order to pack merchandise on high-up shelves. Whilst she was on duty, the cage tilted, and the claimant fell. The cage hit her on her head. As a result, she suffered a severe head injury resulting in her being mentally incapacitated. The decision by the Supreme Court of Appeal discussed in our blog here was upheld by the Constitutional Court as it was found that the condition of mental incapacity only ceases to exist if the claimant recovers from it.

The curator who was appointed for the claimant instituted an action on her behalf for damages against the defendant more than one year after his appointment. The defendant raised a special plea that the appointment of the curator constituted a cessation of the impediment of mental incapacity. The impediment therefore allegedly ceased to exist because, although the claimant could not personally prosecute the claim, the curator could do so on her behalf.

According to the Prescription Act:

• If, on or before, the date of cessation of the impediment, the period of prescription would have been completed, the claimant only has a year (not three years) within which to institute proceedings.
• If the period of prescription would have been completed within a year after the impediment had ceased, the claimant still has a year from the date of cessation of the impediment to institute proceedings.
• If, by the date of cessation of the impediment, the period remaining is more than a year, the claim must be instituted within that remaining period.

The judgment illustrates that the appointment of a curator does not divest a person with mental incapacity of the protection that is afforded under the Act, for as long as the mental incapacity exists. It is important to protect the interests of mentally incapacitated creditors given that if the claim were to prescribe, the denial of their rights to institute a claim would be absolute. It does mean that claims by mentally incapacitated persons never prescribe until their recovery or death which is an extraordinary situation if there is a curator able to sue.

Shoprite Checkers (Pty) Limited v Mafate N.O. [2024] ZACC 16