Limitation Periods and the Right of Access to the Courts

Road Accident Fund and Another v Mdeyide [2010] ZACC 18 (30 September 2010)

The Constitutional Court of South Africa has held that an inflexible 3-year time limit for lodging a claim for personal injuries sustained in a transport accident is a justified limitation on the right to access courts, which is protected by s 34 of the South African Bill of Rights.

Facts

Mr Mdeyide, a blind, illiterate and innumerate man, was struck by a car on 8 March 1999 whilst a pedestrian.  He was rendered unconscious and left without independent memory of the circumstances surrounding the accident.

On 17 September 1999 he received legal advice from a solicitor about the 3-year time limit in which he could bring a claim against the Road Accident Fund (RAF).  His solicitor agreed to act on his behalf in relation to the claim, however Mr Mdeyide failed to attend numerous appointments with his solicitor.  Mr Mdeyide finally attended his solicitor on 11 March 2002.  An affidavit was drafted but Mr Mdeyide failed to sign the affidavit.  His solicitor therefore lodged the claim with the unsigned affidavit on 11 March 2002, which was 3 years and 3 days after the accident.

The Eastern Cape High Court declared s 23(1) of the RAF Act, which fixes the 3-year time limit, to be unconstitutional because it imposes a complete bar on claims outside 3 years, without any avenue for consideration of a claimant’s awareness of his or her rights or exceptional circumstances.

Mr Mdeyide argued that the time for bringing a claim only commenced once he gained knowledge of his rights after consulting a solicitor.  He also claimed that consideration of exceptional circumstances ought to be required.  The focus of Mr Mdeyide’s attack was therefore on the lack of flexibility rather than the 3-year period itself.

Decision

Majority

The majority (8:3) acknowledged that the 3-year time limit for bringing claims under the RAF Act did burden the right to access courts, which is enshrined in s 34 of the South African Bill of Rights.  This is in fact a possibility in any case where a time limit exists.  It was however, considered to be a reasonable and justifiable limitation pursuant to s 36 of the Bill of Rights.

In forming this decision, Van Der Westhuizen J, for the majority, noted that the right to access courts is essential in a constitutional democracy under the rule of law.  He then observed that there is ‘no hard-and-fast rule for determining whether a limitation is consistent with the Constitution’, rather a claimant must be afforded ‘an adequate and fair opportunity to seek judicial redress’.  Justice Van Der Westhuizen J stated:

Adequate time must be given to institute a claim and the practical possibility and genuine opportunity to do so is important.

The central issue was one of proportionality, requiring consideration of the following factors:

• the devastatingly final impact of the expiration of a time limit;
• inflexibility in relation to when time begins to run;
• absence of a requirement for the claimant to have knowledge;
• absence of consideration of exceptional circumstances ; and
• difficulties faced by claimants, particularly in light of levels of poverty and illiteracy in South Africa;

These factors were then weighed up against other factors, such as:

• the generosity of a time period of three years;
• the importance of the proper administration of public funds; and
• potential detrimental consequences of a more flexile time limit.

The RAF led evidence that serious adverse financial and operational effects would follow from a more flexible time limit.  The majority accepted that the practical consequences for the RAF would be ‘potentially costly at best and calamitous at worst’.  The majority observed that the right to human dignity held by the victims of road accidents, many of whom are among the more disadvantage and marginalized in society, requires that they be compensated through a properly administered and efficient public fund.  The limitation could therefore be seen to serve a legitimate purpose of significant public importance.  This purpose would potentially be undermined by a more flexible time limit.

Where the time limit is shorter, greater flexibility and scope for exceptions would be expected.  The majority were of the view that 3 years was very generous itself and involved considerable flexibility.

Dissenting Judgment

Justice Froneman, for the minority, placed a greater emphasis on the requirement of the court to consider less restrictive means when determining whether a limitation on a right is reasonable and justifiable.  Justice Froneman formed the view that the time limit prescribed by the RAF Act was unduly inflexible; ultimately to the greatest detriment to those most disadvantaged in South African society.  He found it difficult to justify on non-discriminatory grounds why Mr Mdeyide should have 6 months less time to lodge his claim after acquiring knowledge of his rights, than a person with greater means to access to education and knowledge.  The lack of a knowledge requirement, coupled with the absence of any exceptional circumstances provision, meant that the limitation imposed by s 23(1) of the RAF Act could not be considered justifiable.

Relevance to the Victorian Charter

Time limits are common beasts in Victorian statute and common law.  Some of these time limits are of greater length or flexibility than others.  Section 24(1) of the Victorian Charter provides the right to have proceedings decided by a competent, independent and impartial court or tribunal.  As was noted in this case, there is no hard-fast-rule, however the factors considered, and weight given to each by the majority and minority judgments in this case, provide some guidance as to whether a time limit could be seen to unreasonably or unjustifiably burden s 24(1) read in conjunction with the limitations provision at s 7(2).

The decision is at www.constitutionalcourt.org.za/site/RAF.htm.

Adrianne Walters is a solicitor with the Top End Women’s Legal Service in Darwin