In a recent matter, RAF v Mdeyide, decided on September 30 2010, the Constitutional Court had to decide whether s12(3) of the Prescription Act applies to claims under the RAF Act by virtue of s16 of the Prescription Act. In other words should, or could the knowledge requirement of the Prescription Act be read into the RAF Act and, if not, does s23(1) of the RAF Act limit the right of access to courts, and thus could it be declared unconstitutional?
s12(3) of the Prescription Act provides that a debt shall not be deemed to be due until the creditor has knowledge of the identity of the debtor and of the facts from which the claim arises: provided that a creditor shall be deemed to have the knowledge if he could have acquired it by exercising reasonable care. s16 of the Prescription Act provides that the Act shall apply to any debt (the court accepted that a debt is also a claim under the RAF Act). s23(1) of the RAF Act provides that a claim shall become prescribed upon the expiry of three years from the date upon which the action arose. The Respondent, Mr Mdeyide, was left virtually blind after a childhood accident. He had almost no formal education and is illiterate. On March 8 1999 Mdeyide, accompanied by his wife, was walking on the road close to home when he was struck by a motor vehicle. On September 17 1999, on his wife’s urging Mdeyide visited the offices of an attorney who was to lodge a claim with the RAF on his behalf. Events did not run smoothly and only on March 11 2002 did the attorney send the claim to the RAF; three years and three days after the accident. The RAF raised a special Plea of prescription.
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