Shoprite Checkers (Pty) Limited v Mafate N.O. (CCT 55_23) [2024] ZACC 16 (15 August 2024)

The case revolves around a tragic incident involving Ms. Nolunga Mkhwanazi, who was employed as a packer by Smollan Sales and Marketing, a company providing merchandising services at retail stores. On 15 October 2014, while performing her duties at Checkers Hyper in Meadowdale Mall, Edenvale, Ms. Mkhwanazi was required to pack merchandise on high shelves. To facilitate this, she was lifted in a cage attached to a forklift. Unfortunately, the cage tilted while elevated, causing her to fall. As she lay on the ground, the cage fell on her head, resulting in severe head injuries that led to permanent mental incapacity.

Following this incident, on 1 February 2017, Mr. Cecil Tshepo Mokopane Mafate was appointed as curator ad litem to represent Ms. Mkhwanazi in pursuing a damages claim. Exercising his authority, Mr. Mafate filed a delictual claim against Shoprite Holdings Limited in the High Court of South Africa, Gauteng Division, Johannesburg, on 22 February 2017. However, Shoprite Holdings Limited raised a special plea on 28 July 2017, arguing misjoinder and non-joinder, asserting that the Checkers Hyper store did not belong to it but to its wholly owned subsidiary, Shoprite Checkers (Pty) Ltd.

In response to this plea, Mr. Mafate withdrew the action against Shoprite Holdings Limited on 28 June 2018. Subsequently, on 19 October 2018, he served a summons on Shoprite Checkers, initiating the current action.

Shoprite Checkers then filed a special plea claiming that the damages claim had prescribed. They argued that the prescription period had begun on 15 October 2014, the date of the incident, and that by 15 October 2017, the three-year prescription period had elapsed. They relied on section 13(1)(a) and (i) of the Prescription Act, contending that the appointment of Mr. Mafate as curator ad litem constituted a cessation of the impediment of mental incapacity, allowing the prescription period to run.

In contrast, Mr. Mafate contended that the running of prescription was interrupted by the service of the summons on Shoprite Checkers on 19 October 2018. He argued that he only acquired knowledge of the identity of the debtor and the facts giving rise to the debt after Shoprite Holdings Limited raised its defenses, and that this knowledge was not due to a lack of reasonable care on his part.

The High Court ultimately dismissed Shoprite Checkers' special plea, concluding that a curator ad litem could rely on section 12(3) of the Prescription Act, which states that a debt is not deemed due until the creditor has knowledge of the identity of the debtor and the facts from which the debt arises. The Supreme Court of Appeal upheld this decision, determining that Ms. Mkhwanazi remained under curatorship and that her mental incapacity persisted, thus preventing the completion of the prescription period.

The case was then brought before the Constitutional Court, where the central legal issue was whether the appointment of a curator ad litem for a mentally incapacitated person affects the running of prescription under section 13(1) of the Prescription Act.

The ratio decidendi of the case is that the appointment of a curator ad litem for a mentally incapacitated person does not result in the cessation of the impediment of mental incapacity for the purposes of prescription under section 13(1) of the Prescription Act. The court held that the protection afforded to individuals with mental incapacity continues for as long as their incapacity persists, meaning that the period of prescription will not be completed while the impediment exists. This interpretation emphasises the need to safeguard the rights of vulnerable individuals, ensuring that they are not disadvantaged by the legal complexities surrounding their ability to pursue claims, even when a curator ad litem is appointed to act on their behalf. The court underscored the importance of protecting the dignity and rights of mentally incapacitated persons, aligning with constitutional imperatives to promote access to justice.

The court relied on several cases in its reasoning process, including:

1. Mohlomi v Minister of Defence [1996] ZACC 20; 1997 (1) SA 124 (CC), where the court discussed the impact of inordinate delays in litigation on the interests of justice.

2. Uitenhage Municipality v Molloy [1997] ZASCA 112; 1998 (2) SA 735 (SCA), which addressed the purpose of the Prescription Act in protecting debtors from old claims that they cannot effectively defend against due to the passage of time.