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382 Chapter 16
This allows it to avoid engaging with what was perhaps the most critical issue
in the case which was whether adequate procedural safeguards existed for
litigants declared to be vexatious.
In prescription cases following Mohlomi and Beinash, the Court applied the
‘fair and adequate’ test laid down by Didcott J in Mohlomi and each time has
struck down the provision as unconstitutional. 68 The most recent decision
dealing with a challenge to prescription periods, Road Accident Fund v Mdeyide,
adds a new twist. 69 The case concerns the constitutionality of a prescription
period of three years for a claim for compensation by victims of motor vehicle
accidents under the Road Accident Fund Act (RAF Act). A claim under the Act
would prescribe irrespective of whether the victim knew of the identity of the
negligent party and details of the facts from which the claim had arisen (unlike
the provisions of the Prescription Act). The RAF Act also contains no provision
for condonation of a late claim even in exceptional cases. In the facts of the
particular case, a poor, disabled man was hit by a motor vehicle whilst walking
along a road. For a variety of reasons, his claim was lodged three years and three
days after the accident. The majority of the Court decided that whilst the
prescription period violated section 34, such a violation was justifiable given
its importance for the functioning of the RAF. The minority held that the
violation in question was unjustifiable given the serious violation of section 34 that
was involved, the social context of poverty and inequality and the possibility of
less restrictive means being employed.
The reasoning of the majority in this case deserves closer attention as it
is beset by several problems. First, the Court, when it deals with whether
section 34 is violated, largely eschews an analysis of the right itself. In
relation to Mohlomi, after outlining the approach adopted there, the Court
proceeds to claim that ‘considerations taken into account during the first
phase of the enquiry, could have been relevant in the second as well’. 70 In a
footnote, the Court points out that in Mohlomi ‘the fair and adequate
opportunity’ test was used in the first stage of the enquiry and claims that it
was used in the second stage in Brümmer. 71 The Court claims that ‘although
a two-step approach is appropriate, the questions raised and the standards
applied may sometimes overlap and be applicable to both. It is not always
practical to rigidly separate the two stages of the enquiry.’ 72
68 See Moise v Greater Germiston Transitional Local Council 2001 4 SA 491 (CC); Potgieter v
Lid van Uitvoerende Raad: Gesondheid, Provinsiale Regering, Gauteng, 2001 11 BCLR 1175
(CC); Engelbrecht v Road Accident Fund 2007 6 SA 96 (CC); Brümmer v Minister for Social
Development 2009 6 SA 323 (CC). The test was also applied in Barkhuizen v Napier 2007 5
SA 323 (CC). That case has attracted controversy for reasons that are not related to sec
34, so we will not discuss it here. See also Woolman (n 3 above) 772 - 781.
69 [2010] ZACC 18, as yet unreported.
70 Mdeyide (n 69 above) para 59.
71
Bewilderingly, this statement is blatantly incorrect. The Court cites para 51 of Brümmer in
support of its statement, whereas that paragraph clearly falls within the rights analysis
part of the judgment. The justification analysis, in which the test plays no significant part,
follows later in the judgment from para 59 onwards.
72 Mdeyide (n 69 above) fn 52.