While much has been written about the judgment handed down by the Constitutional Court in Van Zyl NO v Road Accident Fund  ZACC 44 on 19 November 2021 — particularly how the judgment represents a long-overdue development of the law of prescription to recognise and protect the rights of persons with intellectual disabilities and ensure their access to justice, it should not be forgotten that the matter has not yet been finalised for Mr Koos Jacobs, the road accident victim at the heart of the precedent-setting case; nor are the rights of the many thousands of other similarly placed road accident victims guaranteed of protection.
With the inevitable road accident carnage of the Easter weekend and the winter months upon us, it is timely to bring back into focus the human story behind this public interest case. In so doing, it reflects on the substantive impact of the law when laws, and those charged with upholding them, do what they are meant to — respond meaningfully to the needs of society, and more particularly, the needs of the most vulnerable and marginalised therein.
As is sadly not uncommon in South Africa, Koos Jacobs was an unsuspecting passenger on the back of a bakkie. The unlicensed bakkie driver, who was also driving under the influence of alcohol at the time, sped, lost control of the vehicle and innocent passengers, Koos among them, were severely injured while others lost their lives.
Koos’ recollection of events at the scene of the accident is bad and he has no memory of the impact itself. After suffering a significant head injury, he is told he was driven to Livingstone Hospital where he was admitted for a period of 10 days and diagnosed with a concussive head injury upon discharge.
Koos grew up on a farm, and after completing a grade seven (standard five) education, continued working there. It was only nine years after the accident that Koos was diagnosed with post-traumatic organic brain syndrome which affects his cognitive functioning, mood and abilities.
Not only did Koos lose the ability to manage his own affairs and live a full and fulfilling life, but he also lost his fiancé in the same accident. At the time of the accident, they had a one-year-old daughter, who Koos is no longer able to take care of due to his severe injuries.
The Road Accident Fund Act (RAF Act) is social legislation enacted to give the greatest possible protection to and promote the social and economic rights of victims of motor vehicle accidents and must be construed at all times to give access to courts and justice rather than to limit access to justice. But his mother and those around him were not aware that he had a claim against the statutory insurer, namely the Road Accident Fund as a result of the reckless driving of the bakkie driver. They were also not aware that a curator ad litem could be appointed to assist them or that the Road Accident Fund would expect any claim to be brought within a mandated period.
As for Koos, how could he be compelled to comply with the time periods mandated by law for the lodging of a claim when he did not have the necessary wherewithal — in other words the mental capacity — to do so?
When Malcolm Lyons & Brivik Inc brought the claim on his behalf in 2017, the Road Accident Fund raised the special defence of prescription. In other words, it argued that because Koos had not brought his claim timeously, he could not do so in law. Both the high court and Supreme Court of Appeal agreed.
In the further appeal to the Constitutional Court, the Constitutional Court agreed that the manner in which the SCA had interpreted the RAF legislation had prevented Koos, as an intellectually disabled person, from obtaining access to the courts to resolve his claim and that depriving an intellectually disabled road accident victim from fulfilling their right of access to courts (read justice) would be unconstitutional.
The Constitutional Court further understood that the law, as interpreted by the high court and Supreme Court of Appeal, would demand the impossible from road accident victims who are intellectually disabled.
This notion is not new, and even during apartheid, the Appellate Division held that the prescription provisions of the Police Act could not be relied upon as a defence to a claim brought by a detainee whose detention made it impossible to comply with a law that requires statutory notice to be given and which further requires action to be instituted in court, such claim arising from an assault committed while in detention. The reasoning is that to do so would be to deprive those detainees of access to court.
Interpreting the law to allow a claim against the Raf should allow Koos and other intellectually disabled road accident victims to receive fair compensation for their loss of amenities and enjoyment of life, once proof of damages suffered has been tendered. It should further allow him to recover the loss of earnings he would have earned over his career (a career he is now unable to have) as well as to receive an undertaking from the Raf for reimbursement of any medical and hospital expenses for any ongoing accident-associated treatment he requires upon presentation of invoices to the Road Accident Fund.
Compensation of this nature is life-changing for road accident victims — particularly where it enables a significant improvement in their post-accident quality of life.
Having travelled through three courts, namely the high court, Supreme Court of Appeal and Constitutional Court just to establish the technical legal point that Koos’ claim for compensation had not prescribed and that he is entitled to bring a claim against the Road Accident Fund outside of the mandated claim period, the matter has now returned to the high court for final determination, where, unlike many other South Africans, Koos has both a curator and a lawyer to assist him.
This highlights, once again, issues of access to justice and legal representation for the millions of South Africans who simply cannot afford private legal representation in general. This case calls on us to consider those who are forced to risk their lives by placing them in the hands of others — whether they be the drivers of other vehicles on the road or those we entrust our safety to when unable to afford our own private transport.
It further highlights the ongoing failure of the legal profession as a whole to provide services to indigent litigants with complicated legal matters; or even just average earners who cannot afford private legal representation yet do not qualify for pro bono assistance even where such assistance may be available.
Complicated cases like this require private attorneys to cover the costs of prolonged litigation that may take many hours of work over many years as well as significant expenditure on a pro bono or contingency fee basis — expenditure which many private attorneys are, or feel, unable to fund. It may also be that for many private attorneys, the choice is to assist more people in less complicated matters on a pro bono or contingency fee basis versus one person in complicated and protracted litigation that hopes to benefit many more in the future if successful.
So, where does that leave the average, socioeconomically disadvantaged South African road accident victim, and more specifically, the average intellectually disabled and otherwise socioeconomically disadvantaged South African road accident victim?
For the thousands of road accident victims this country mourns each year, this case demands of us that we recognise, promote and protect the rights of intellectually disabled persons generally and those disabled by road accidents specifically. It also reminds us of the need for the judiciary to continue intervening actively to ensure that this is done.
It further, and perhaps most poignantly, reminds us of the human cost of the inaccessibility of justice and that left unchallenged, the law and those charged with upholding it may act unconstitutionally and be deserving of challenge.
Although this case is undoubtedly a step in the right direction for the recognition of the rights of intellectually disabled persons as well as access to justice more broadly, it is worth acknowledging that as a country there remains a long road still to travel. May we all travel it safely. DM