Litigants with mental incapacity get protection through top court’s ruling

People with mental incapacity deserve extended “meaningful protection” to seek legal damages claims for their injuries and the usual legal timeframes do not apply to them.

This was the finding of the Constitutional Court on Thursday, in a case involving Shoprite, affecting every person in SA who has suffered an injury and wants to sue for damages.

Shoprite had appealed against a finding by the Supreme Court of Appeal (SCA), which ruled against the shopping giant in 2023 in favour of an injured worker.

In 2014, a forklift cage fell on Nolunga Mkhwanazi, who was working as a packer in Edenvale, leaving her permanently mentally incapacitated.

Almost three years later, an attorney, Tshepo Mafate, was appointed her curator ad litem (a lawyer who represents those with mental incapacity). On Mkhwanazi’s behalf, Mafate instituted claims for damages against Shoprite in the Johannesburg high court.

In response, Shoprite contended Mafate’s claim for Mkhwanazi had “prescribed” (was out of time).

The Prescription Act gives litigants three years from the time an injury occurs to institute damages claims. If a litigant tries to sue after three years, a court will dismiss their claim.

However, in the case of those who suffer an injury that causes mental incapacity, the law outlines complex timelines as such persons cannot litigate.

However, once their incapacity is “lifted”, the countdown continues and involves other calculations. For example, if someone is in a coma because of the injury, then throughout the coma the three-year countdown is suspended. Once the person comes out of the coma, the clock starts.

Shoprite argued the claim had prescribed because when Mafate became her curator in 2017, this “lifted” Mkhwanazi’s incapacity. According to Shoprite’s calculations, Mafate was out of time when the the claim was instituted in 2018.

Mafate argued this was wrong and the High Court agreed. Shoprite appealed to the SCA, which also agreed with Mafate. Shoprite appealed again to the Constitutional Court.

The Constitutional Court also dismissed Shoprite’s appeal on Thursday.

“The scale must tilt to the side of preserving the interests of mentally incapacitated [litigants],” Constitutional Court judge Mbuyiseli Madlanga wrote for a unanimous court. “If the claim were to prescribe, the denial of their rights to institute a claim would be absolute.”

Madlanga dismissed Shoprite’s argument that appointing a lawyer to represent her meant Mkhwanazi’s incapacity was “lifted”.

The law’s “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”.

This means anyone in Mkhwanazi’s position now obtains prescription protection, and the appointment of a lawyer will not undermine this.  

The ruling from the apex court affects every litigant with mental incapacity, especially those suing for workplace injuries. Opponents, usually the workplace, cannot now rely on prescription to have claims dismissed. 

Mkhwanazi’s claim will return to the High Court at a future date to determine if, and how much, she is owed by Shoprite.

moosat@businesslive.co.za