Court gives lifeline to disabled RAF claimant whose claim has prescribed

The Pretoria high court has paved the way for a claimant who was disabled in a road accident to lodge his claim with the Road Accident Fund (RAF) despite the fact that the claim would have ordinarily lapsed.

The full court on Monday upheld an appeal lodged by an advocate and curator of disabled Mario Francisco Muchanga which challenged a 2014 high court decision that dismissed his claim with the RAF.

The RAF had raised a special plea that Muchanga's claim had prescribed as it was lodged outside the three year period. 

The advocate appointed to handle Muchanga's affairs in August 2013 lodged the claim against RAF after he suffered severe injuries to his head and brain in an accident on November 2 2007. This was five and a half years after the accident 

Muchanga was a passenger in a vehicle when it collided with other vehicles.

In the initial special plea, the RAF was not at issue with the injuries suffered by Muchanga, but that his claim happened outside the prescribed period of three years, as set out in the RAF Act. The RAF argued the claim should have been submitted timeously, by November 1 2010, and summons ought to have been issued within five years since the claim, as provided for in the act.

Between the court judgment of 2014 and the application for leave to appeal judgment in December 2022, the Constitutional Court had decided on the question  of whether prescription was interrupted in respect of a person placed under curatorship, where his disability predated the expiry of the initial prescriptive period.

In a judgment on Monday, acting judge Brian Ceylon said the Constitutional Court judgment in the matter of Van Zyl NO v RAF  held that the Convention on the Rights of Persons and Disabilities (CRPD) provided that state parties must ensure access to justice for people living with disabilities on an equal basis with others.

The apex court said read with the constitution, the CRPD afforded people living with disabilities access to courts and ultimately protected the affected people against losing their claims for compensation to prescription.

Ceylon said: “In consequence of the finding of the Constitutional Court, since Mr Muchanga was rendered disabled on the day of the collision in question, it is from that day that he is regarded as disabled and incapable of acting, without the assistance of [his curator] to enforce his rights against the [RAF].

“For this reason, the appeal is successful. The [RAF] is ordered to pay the costs of the appeal.”

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