The Constitutional Court has allowed a man, left mentally incapacitated after a 2010 accident, to claim for compensation from the Road Accident Fund (RAF) even though the application was lodged well past the deadline.

Koos Jacobs brought a claim for compensation in 2017, outside of the RAF’s three-year prescription, GroundUp reports.

The RAF rejected the claim because it was late - it had prescribed.

The High Court and SCA upheld the RAF’s decision. But on Friday, the Constitutional Court overturned the SCA’s decision that the RAF may reject a compensation claim if it has not been brought within three years because of a person’s mental incapacity.

Jacobs’ claim can now proceed.

The RAF Act states that every person who is injured in a vehicle accident on a public road has a right to receive compensation from the RAF. The Act also states that any compensation claim must be brought no later than three years after the accident occurred. If a claim is not brought within three years, the RAF can reject it based on the defence of ‘prescription’.

The RAF Act does, however, state that the three-year prescription period will not operate in three situations: where the injured person is a minor; has been placed under curatorship; or is detained as a patient in terms of mental health legislation.

But the RAF Act contains more onerous requirements to prevent prescription than the Prescription Act.

According to the Act, it is not necessary for someone to be detained as a mental health patient before prescription will not operate. The Act says it is only necessary that they cannot bring legal proceedings because of mental incapacity or an intellectual disability.

Acting Constitutional Court Justice Dhaya Pillay said the RAF Act should be interpreted in a way that will best give effect to the spirit, purport and objects of the Bill of Rights.

Pillay said this meant that if the Act could be interpreted in two ways – one which increases access to court and one which does not, the court should apply the interpretation that best gives effect to the Bill of Rights, notes the GroundUp report.

Pillay said the SCA should have considered whether the RAF Act could be interpreted to prevent prescription when it was impossible for an injured person to report the accident to the RAF within three years.

Pillay agreed with the RAF that the Prescription Act did not apply to the RAF Act.

However, she said the RAF Act should be interpreted to state that prescription should not run against someone who cannot bring a RAF claim in time, when a mental incapacity makes it impossible for them to do so.

In a minority judgment, Justice Leona Theron said that the RAF Act could not be interpreted to preclude prescription based on impossibility, because it states that it takes precedence over ‘any other law’ – including the common law rule of impossibility.

Full GroundUp report