Combrink and Another v Road Accident Fund and Another (31303/2008; 31306/2008) [2015] ZAGPPHC 760 (5 November 2015)

Combrink and Another v Road Accident Fund and Another (31303/2008; 31306/2008) [2015] ZAGPPHC 760 (5 November 2015)

Regulation 2(4) of the Road Accident Fund Regulations 1997 is inconsistent with section 34 of the Constitution to the extent that it allows prescription to run against minors and persons with legal disability. This provision is unreasonable, conflicts with the enabling Act and the Prescription Act, and unjustifiably impairs constitutional rights. The constitutional defect is remedied by severing the offending words and reading in a reference to sections 13(1)(a) and (i) of the Prescription Act, so that prescription does not run against minors. The order operates prospectively and only applies to pending cases. Applying this regime, Marnus Combrink's claim has not prescribed and must be...

Citation
[2015] ZAGPPHC 760
Parties
Plaintiff: Ruan Kruger Combrink; Plaintiff: Marnus Combrink; Defendant: Road Accident Fund; Defendant: Minister of Transport
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
5 November 2015
Case Number
31303/2008; 31306/2008
Procedural Posture
Civil Judgment / Stated Case; Adjudication of Prescription and Constitutional Challenge; Quantum Postponed Sine Die
Outcome
Regulation 2(4) is declared invalid to the extent that it allows prescription to run against minors and persons with legal disability; the defect is remedied by severance and reading in reference to the Prescription Act. The RAF's special plea against Ruan Combrink is upheld; the special plea against Marnus Combrink...
Judges
H.J Fabricius
Legal Topics
Prescription of Claims, Road Accident Fund Act, Legal Disability, Constitutional Invalidity, Children S Rights
Civil Procedure Constitutional Law Prescription of Claims Road Accident Fund Act Legal Disability Constitutional Invalidity Children S Rights

Case Brief

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Parties

Ruan Kruger Combrink

Plaintiff

Marnus Combrink

Plaintiff

Road Accident Fund

Defendant

Minister of Transport

Defendant

Procedural Posture

Civil Judgment / Stated Case; Adjudication of Prescription and Constitutional Challenge; Quantum Postponed Sine Die

Legal Issues

  1. 1 Whether the plaintiffs' claims have prescribed due to non-compliance with Regulation 2(4) of the Road Accident Fund Regulations.
  2. 2 Whether Regulation 2(4), which allows prescription to run against minors and persons with legal disability, is ultra vires, invalid, or unconstitutional.
  3. 3 What is the appropriate remedy if Regulation 2(4) is found unconstitutional, and how does this affect the plaintiffs' claims.

Ratio Decidendi

Regulation 2(4) of the Road Accident Fund Regulations 1997 is inconsistent with section 34 of the Constitution to the extent that it allows prescription to run against minors and persons with legal disability. This provision is unreasonable, conflicts with the enabling Act and the Prescription Act, and unjustifiably impairs constitutional rights. The constitutional defect is remedied by severing the offending words and reading in a reference to sections 13(1)(a) and (i) of the Prescription Act, so that prescription does not run against minors. The order operates prospectively and only applies to pending cases. Applying this regime, Marnus Combrink's claim has not prescribed and must be...

Court Disposition

Regulation 2(4) is declared invalid to the extent that it allows prescription to run against minors and persons with legal disability; the defect is remedied by severance and reading in reference to the Prescription Act. The RAF's special plea against Ruan Combrink is upheld; the special plea against Marnus Combrink...

Orders

  • Regulation 2(4) of the RAF Regulations 1997 is declared inconsistent with section 34 of the Constitution and invalid to the extent that it permits prescription to run irrespective of any legal disability.
  • The order operates prospectively and only to pending cases; it does not affect finalised cases.