Prescription: The law cannot compel one to do the impossible

Dec 11, 2023 | , , | News

The prescription of debts is usually unwavering in its applicability and the unenforceability of a prescribed debt is often viewed as a harsh, but necessary practice. This does not mean that there are no exceptions to the law of prescription. Some exceptions exist through statute, while others exist by way of decisions held at Court. One such exception was upheld recently by the Constitutional Court in order to promote fairness over legislative restrictions.


In Van Zyl N.O. v The Road Accident Fund [2021] ZACC 44 the Constitutional Court applied the common law principle of lex non cogit ad impossibilia, known as the “impossibility principle”, which translates to “the law cannot compel one to do the impossible”.

On 1 May 2010, Mr. Koos Jacobs (“Jacobs”) was seriously injured in a motor vehicle collision, resulting in Jacobs suffering severe head injuries which impaired his mental capacity. This rendered Jacobs unable to handle his own affairs and in particular, he was unable to lodge a claim against the Road Accident Fund (“RAF”). Acting as his proxy, his mother lodged his claim for damages against the RAF on 18 January 2017, just shy of 7 years following the collision.  Later that same year, on 28 November 2017, Jacobs’ mother obtained a Court Order appointing a curator ad litem to handle the affairs of Jacobs.

Section 23(1) of the Road Accident Fund Act (the “RAF Act”) provides that claims must be filed within 3 (THREE) years of a collision, meaning that Jacob’s claim had prescribed by 30 April 2013. Sections 23(2)(b) and (c) of the RAF Act make provision, however, to protect persons against prescription if they have mental disabilities and consequently, are detained in terms of mental health legislation or placed under curatorship.

The RAF raised a special plea that the claim had prescribed, owing to the fact that Jacobs was not under curatorship during the prescription period and the running of prescription had therefore not been suspended. The High Court upheld the special plea and the costs were awarded against the Applicant.

The matter was then heard on appeal by the Supreme Court of Appeal and it was found that the High Court was correct in upholding the special plea of prescription, in that a curator ad litem should have been appointed to institute the claims within the prescribed period, which would have suspended the running of prescription in terms of section 23(2)(c) of the RAF Act.

However, when the appeal against the judgement of the Supreme Court of Appeal was brought before the Constitutional Court, the Constitutional Court took the approach that the appeal was as much about restoring the dignity of people with disabilities as it was about compensating them financially.

Counsel for the applicant urged the Court to apply the common law principles that “no one can do the impossible” and that “prescription does not run against one who has no capacity to institute action” and argued that due to his injuries, it was rendered impossible for Jacobs to know about the requirements of section 23 of the RAF Act and to act on his own to lodge his claim. Although he qualified for the appointment of a curator ad litem to assist him with litigation, he neither knew nor had the capacity to have a curator timeously appointed. The question before the Court then became whether the impossibility principle has application in this matter.


The Court held that:

“[53] Grounded in nature, science and reality, the impossibility principle is an extension of logic The impossibility principle flourishes because it distinguishes rationality, logic and reasonableness from the opposite.  It extricates what is always reasonable from what is reasonable in certain circumstances 

“54 … For a law to be applied as law, compliance must be possible. Conversely and by necessary implication, a law which is impossible to comply with cannot be applied as law.  It is this which sets the impossibility principle apart from other principles of the common law … The impossibility principle would apply not only to tasks “which are absolutely impossible but tasks which, in the circumstances, are not reasonably capable of performance”.

The Court, in determining the applicability of the impossibility principle, considered the writings of Martin Luther King Jr:

[a]ny law that uplifts human personality is just.  Any law that degrades human personality is unjust” – Martin Luther King Jr.

The Constitutional Court upheld the appeal and awarded costs in the High Court, the Supreme Court of Appeal and the Constitutional Court, stating that the common law impossibility and incapacity principles apply to rescue Mr. Jacobs’ claim from prescribing.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on or 021 556 9864 to speak to one of our attorneys.

Neil Bensch

Neil Bensch

Neil primarily practices in commercial law, with a focus on insolvency law, collections, evictions, contracts and perfection of notarial bonds.

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