An ‘important purpose of section 34 [of the Constitution] is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law’ and that the right of access to court is ‘foundational to the stability of an orderly society. It ensures the peaceful, regulated and institutionalised mechanisms to resolve disputes, without resorting to self-help. The right of access to court is a bulwark against vigilantism, and the chaos and anarchy which it causes. Construed in this context of the rule of law and the principle against self-help in particular, access to court is indeed of cardinal importance’.The right guaranteed s34 would be rendered meaningless if court orders could be ignored with impunity:the underlying purposes of the right — and particularly that of avoidance of self-help — would be undermined if litigants could decide which orders they wished to obey and which they wished to ignore.
Business Day reports that the Constitutional Court will today begin hearing arguments on whether a section of the Road Accident Fund Act governing the prescription of a claim is inconsistent with the constitution.
Section 23 (1) of the act sets a three-year limit for claimants to claim compensation after an accident. The fund is responsible for paying claims of accident victims and is financed by a fuel levy imposed on motorists.
This section is being challenged by accident victim Vusumzi Mdeyide, whose claim the fund rejected because it was instituted three days after the three-year period expired.
The fund is challenging the action, saying removing this clause will impede the fund’s expeditious processing of claims. The fund said it would also be difficult for it to forecast financial liability for outstanding claims.
Mdeyide, 38, has been blind since childhood and cannot read or write. He applied to the East London Circuit Court for compensation from the fund. Acting Judge Viwe Notshe found section 23(1) limited the right of claimants’ access to courts.
The right in issue is the right of access to courts guaranteed in section 34 of the Bill of Rights. I have not made a specific study of this case, but given the perilous state of the finances of the RAF, the Constitutional Court seems to find themselves in a difficult position.
On the one hand, a blind man – one of the most vulnerable members of society – is being denied something that others can claim. On the other hand, it seems to make sense to limit claims against the RAF to ensure that the fund does not go bankrupt. Much will depend, I think, on the actual facts of the case and whether the claimant could be said to have been negligent himself. I am glad I do not have to decide this one….