Does the Appointment of a Curator Ad Litem for a Permanent Mental Incapacity Protect a Claimant?

Ms Mkhwanazi worked as a packer for a business entity which offers merchandising services at retail stores. She was doing merchandising work at Checkers Hyper. Part of what she did daily entailed being lifted high up in a cage that was attached to a forklift, to enable her to pack merchandise on high-up shelves. When the cage was a few metres up, it tilted. Ms Mkhwanazi fell off. As she lay on the floor, the cage came hurtling down, hitting her on her head. The severe head injury she sustained resulted in permanent mental incapacity. Mr Mafate, the respondent, was appointed as curator ad litem to prosecute damages claim on behalf of Ms Mkhwanazi.

By way of a special plea, Shoprite Checkers raised a defence that the claim had prescribed since a year had elapsed since the appointment of the curator and this step constituted a cessation of the impediment of mental incapacity.

The High Court dismissed the special plea.

The High Court granted leave to appeal to the Supreme Court of Appeal which held that, since a curator had been appointed, such appointment rendered her a person under curatorship. The effect of this holding was that, at the time Shoprite Checkers says the claim had prescribed, Ms Mkhwanazi was under curatorship and the curatorship was ongoing. Therefore, the period of prescription could not have been completed. 

The language that the Constitutional Court is concerned with is that of an impediment arising from mental incapacity. This language is used in the overall context of the balance that the Prescription Act seeks to strike between the conflicting interests of creditors, on the one hand, and of debtors, on the other. The purpose of the inclusion of the impediment in section 13(1)(a) is to safeguard the interests of the vulnerable group of persons suffering from mental incapacity in a manner that guarantees that the running of prescription will not be completed for as long as the impediment persists. 

The interpretation advocated by Shoprite Checkers says, upon the appointment of the curator, Ms Mkhwanazi’s impediment ceased to exist and the curator ad litem could institute proceedings on her behalf. Therefore, she had only one year from the date of such cessation to institute proceedings. 

This interpretation affords Ms Mkhwanazi and similarly placed persons less protection. 

Even with the appointment of a curator ad litem, such persons remain mentally incapacitated. 

They continue to be subject to the vagaries of the competence, or lack thereof, or tardiness of the curator. Due to their mental incapacity, this is a situation about which they cannot do, or be expected to do, anything. 

The appeal was dismissed.

The appointment of curators ad litem in respect of persons with mental incapacity is a chance occurrence. It just does not accord with a sense of justice that such chance occurrence should result in the affected people with mental incapacity being divested of the wholesome, meaningful protection enjoyed by a substantial number of other persons with mental incapacity in respect of whom there are no such appointments. Any benefits that may be derived from the appointment of a curator ad litem are not reason enough to divest a person with mental incapacity of continued protection.

Section 13(1) (Prescription Act 68 of 1969) protection founded on mental incapacity continues for as long as Ms Mkhwanazi’s incapacity persists. For as long as that is the position, the prescription period will not be completed. The scale must tilt to the side of preserving the interests of mentally incapacitated creditors given that, if the claim were to prescribe, the denial of their rights to institute a claim would be absolute.

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