THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT

Not Reportable
Case no: 727/2022

In the matter between:

ADVOCATE C BISSCHOFF N O
ON BEHALF OF DENZIL JOHN REYNERS                       APPELLANT

and

PASSENGER RAIL AGENCY OF SOUTH AFRICA          RESPONDENT

Neutral citation:  Bisschoff N O obo Reyners v Passenger Rail Agency Of
South Africa (Case no 727/2022) [2023] ZASCA 160
(28 November  2023)
Coram:
MBATHA, MABINDLA-BOQWANA and MATOJANE JJA and
NHLANGULELA and KATHREE-SETILOANE AJJA
Heard:
28 August 2023
Delivered: 28 November 2023
Summary:  Prescription – interruption of running of extinctive prescription –
claimant of unsound mind – prescription only begins to run from the date of

appointment of curator ad litem. Knowledge of the identity of the debtor and of
the facts from which the debt arises:

ORDER

On appeal from: Western Cape Division of the High Court, Cape Town
(Mantame and Nuku JJ concurring and Le Grange J dissenting, sitting as a court
of appeal):
The appeal is upheld with costs.
The order of the full court is set aside and replaced with the following:

‘The appeal is dismissed with costs.’

JUDGMENT

Matojane JA (Mbatha and Mabindla-Boqwana JJA and Nhlangulela and
Kathree-Setiloane AJJA concurring)

Introduction
[1] This is an appeal against the decision of the majority of the full court of the
Western Cape Division of the High Court, Cape Town (the full court). The central
issue, in this case, involves a question of whether the appellant's claim against the
respondent became time-barred three years after an incident of a fall from a
moving train or if the prescription period was extended until one year after the

relevant impediment that prevented the claim from proceeding, had ceased to
exist.

[2] The appellant, Advocate C Bischoff, acting as curator ad litem (the
Curator) on behalf of Mr Denzil John Reyners, sued the respondent, Passenger
Rail Agency of South Africa (PRASA) for damages as a consequence of an
incident where Mr Reyners fell from a moving train's open doorway on 20
February 2001, resulting in head injuries.

[3] The trial proceeded before Goliath DJP (the trial court). At the trial,
PRASA argued a special plea of prescription raised in the pleadings that Mr
Reyner's claim had prescribed, as prescription had commenced from the date of
the incident in accordance with s 12(1) of the Prescription Act 68 of 1968 (the
Act).

[4] In response, the Curator contended that Mr Reyners’ mental defect
prevented him from having knowledge of the debtor’s identity and the facts from
which the debt arose, as required by s 12(3) of the Act. Therefore, prescription
would only have started running against Mr Reyners on 7 February 2013, when
he was placed under curatorship.

[5] The Curator also contended that prescription did not commence to run from
20 February 2001 due to injuries suffered by Mr Reyners that rendered him a
person of unsound mind, incapable of managing his own affairs and without the
capacity to litigate. Alternatively, the Curator argued that Mr Reyners was
rendered ‘insane’ as contemplated in s 13(1)(a) of the Act, and consequently, the
running of prescription was delayed until a year after the relevant impediment
had ceased to exist.

[6] In June 2020, the trial court issued a judgment, concluding that, in view of
Mr Reyners' circumstances, he could not be deemed to have acquired the
necessary knowledge about the debtor's identity and debt-related facts or to
engage in litigation effectively. It accordingly held that the prescription period
did not start to run while Mr Reyners was under a disability or impairment. As a
result, the trial court dismissed the special plea of prescription and ordered
PRASA to pay the Curator damages in the approximate amount of R3 million
PRASA had conceded the merits. The Curator brought an application for leave to
appeal the trial court order, which it refused. On 14 January 2021, this Court
granted the Curator leave to appeal the trial court's order to the full court.

[7] Le Grange, Mantame, and Nuku JJ heard the appeal. Mantame and Nuku
JJ upheld the appeal, set aside the order of the trial court dismissing the special
plea of prescription, substituted it with an order that the special plea of
prescription succeeds, and dismissed the Curator's claim.  Le Grange J dissented
and found that he would have made an order upholding the trial court's ruling and
dismissing PRASA's special plea of prescription with costs. The appeal is before
us with special leave of this court.

Common cause  facts
[8] The common cause facts are that on 20 February 2001, Mr Reyners fell
from a moving train operated by PRASA. He sustained head injuries and was
taken to Somerset Hospital. He was later transferred to Groote Schuur Hospital
for treatment, including surgery on his head. By March 2001, he was discharged,
and his medical records indicated a full recovery. The traumatic brain damage
suffered by Mr Reyners resulted in, amongst other things,  temporal lobe epilepsy,
memory loss, aggression, a change of personality, and permanent loss of
cognitive abilities and executive functioning.

[9] After the accident, Mr Reyners continued to live with his parents and
resumed his unskilled job at The Argus newspaper. He discussed the incident and
its consequences with friends and family. He continued working at The Argus for
an additional six months and then worked on an ad hoc basis until his services
were no longer required. Following that, he worked intermittently as an
unqualified carpenter for about a year and later as a painter for six months.
Throughout this period, he continued to live with his parents and became a father
to two children.

[10] In June 2010, more than three years after the train incident, Mr Reyners
instructed his current attorneys to file a claim against PRASA. On 7 February
2013, the Curator was appointed as curator ad litem to help Mr Reyners with his
legal affairs. On 23 August 2013, more than three years after instructing his
attorneys, the Curator issued a summons against PRASA, seeking damages
arising from the injuries sustained by Mr Reyners in the train incident.

The evidence
[11] The Curator led the evidence of two lay witnesses, Mr Llewellyn Grove, a
friend who was with Mr Reyners on the train at the time of the incident and Ms
Natasha Cupido, Mr Reyners' sister. The Curator also called five expert
witnesses, including Dr Lawrence Tucker, a specialist neurologist; Ms Mignon
Coetzee, a clinical psychologist; and Dr Keir Le Fèvre, a practising psychiatrist.
Notably, PRASA did not present any evidence to counter that which was led on
behalf of the Curator.

[12] Mr Grove testified that Mr Reyners became aware of the incident after he
and his family communicated the details to him.  Under cross-examination, Mr
Grove maintained that Mr Reyners could instruct an attorney about his fall from
a moving train and explore the possibility of filing a claim. Additionally, Mr

Grove stated in cross-examination that if Mr Reyners was aware of the potential
claim, he had the capacity to pursue it.

[13] Ms Cupido testified that Mr Reyners' head injury had a significant impact
on his memory. She testified that she was told by Mr Reyners that a neighbour,
Mr Chadwick, had informed him about the possibility of making a claim and
referred him to an attorney. Ms Cupido mentioned that Mr Reyners knew that he
fell from a train and suffered head injuries, but his family was unaware that they
could file a claim after the accident. She believed that if Mr Reyners had been
informed about the possibility of filing a claim six months after the incident, he
would likely have taken immediate action rather than waiting for nearly a decade.

[14] Dr Tucker testified that Mr Reyners suffered a severe head injury during
the fall, which resulted in a depressed compound skull fracture, a subdural
hematoma, and a midline shift in his brain. This injury caused both a specific
focal injury and more general diffuse damage. Dr Tucker also pointed out that Mr
Reyners displayed emotional instability, emotional incontinence, and
susceptibility to seizures or epilepsy as a direct result of the incident.
Additionally, Dr Tucker confirmed the presence of temporal lobe epilepsy
through an EEG test. PRASA did not present evidence of a neurologist to
challenge Dr Tucker's evidence.

[15] Ms Coetzee prepared a report and testified about Mr Reyners' level of
cognitive functioning. She emphasised several key points:
(a) Cognitive decline: Mr Reyners had experienced a significant diminution in
his cognitive abilities. He has difficulty processing and encoding information, and
he struggles to retain it even when information is repeated.
(b) Brain damage: Mr Reyners suffered brain damage as a result of his fall. This
brain damage has had a notable impact on his cognitive functioning and memory.

(c) Executive dysfunction: There were clear signs of executive dysfunction
exhibited by Mr Reyners. He struggles with tasks that involve planning, decision-
making, and organisation.
(d) Memory impairment: Mr Reyners’s memory impairment is pronounced,
affecting his ability to recall and retain information effectively.
(e) Impact on day-to-day functioning: Mr Reyners' physical symptoms, including
headaches and epileptic brain activity resulting from the injury, have a significant
effect on his daily life. These symptoms affect his ability to function normally
and;
(f) Psychological well-being: The psychological toll of his condition is also
evident. Mr Reyners experiences embarrassment due to his seizures, has lost his
career prospects and is dealing with a decline in social connections within his
family, especially in comparison to his more successful siblings.

[16] Ms Coetzee testified that Mr Reyners' medical condition originated from
the fall on 20 February 2001. She also mentioned that as of that date, Mr Reyners
was incapable of handling his affairs and needed the assistance of both a curator
ad litem and a curator bonis to assist him. Her evidence remained unchallenged.

[17] Dr Le Fèvre testified on the impact of the traumatic brain injury on Mr
Reyners. He stated that the injury, which occurred when Mr Reyners fell from a
train, led to a permanent loss of cognitive abilities and executive functioning. As
a result, Mr Reyners could not instruct his attorney or manage his affairs. Dr Le
Fèvre recommended the appointment of curators ad litem and bonis to help with
Mr Reyners' legal and financial matters. Again, there was no challenge to Dr Le
Fèvre's evidence.

[18] PRASA submitted a report prepared by Dr Hemp, a neuropsychologist, to
counter Dr Le Fèvre's findings in respect of  Mr Reyners. In her report, Dr Hemp

stated that Mr Reyners had no personal memories of the train incident and learned
about it while in the hospital. She stated that Mr Reyners could communicate this
information, having already shared it with a friend who provided a lawyer's
contact. Dr Hemp assessed Mr Reyners' general abilities as upper borderline with
some in the low average range and concluded that he was not cognitively
impaired, given his reported full recovery upon hospital discharge. Along with
other experts, she had recommended that Mr Reyner be assisted by a curator
bonis, but later explained that the recommendation was based on Mr Reyners’
illiteracy, limited education, history of dagga usage, and poor social judgment
rather than his inability to communicate about the incident.

[19] Dr Hemp’s report was included in the trial bundle, but she was not called
to testify in the trial. As a result, her report is of limited evidentiary value because
both parties agreed to include the reports in the bundle for what they purported to
be without admitting that their conclusions were correct.

The law
[20] Sections 12(3) and 13(1)(a) of the Prescription Act are relevant to the
determination of this appeal. Section 12(3), under the heading ‘When prescription
begins to run’, states that a debt is not considered due until the creditor knows the
identity of the debtor and the relevant facts underlying the debt. This section also
specifies that a creditor is considered to have this knowledge if they could have
reasonably obtained it through proper diligence.

[21] Section 13(1)(a) provides that completion of prescription will be delayed
in certain circumstances, including when the  creditor is a minor or is insane or is
a person under curatorship or is prevented by superior force, including any law
or any order of the court from interrupting the running of prescription

[22] In Truter and Another v Deysel,1 this Court held that the term ‘debt due’
encompasses any type of debt, including delictual debts, that is both owing and
payable. A debt is considered due when the creditor has a complete cause of action
to recover the debt. This means that all the facts and conditions required for the
creditor to successfully pursue their claim against the debtor are in place. In other
words, the debt becomes due when all the circumstances are in order, allowing
the creditor to take legal action to collect the debt.

[23] In Mtokonya v Minister of Police,2 the Constitutional Court held that
interpreting the phrase ‘the knowledge of . . . the facts from which the debt arises’
to include knowledge that the debtor's conduct is wrongful and actionable in law
would make the law of prescription ineffective. The court stated that this would
result in an unacceptably high percentage of people in the South African
population against whom prescription would not run when they have claims to
pursue in the courts. The court emphasised that s 12(3) does not require a creditor
to have a suspicion that the debtor's conduct is wrongful and actionable but rather
requires knowledge that such conduct is wrongful and actionable in law.3

[24] In Van Zijl v Hoogenhout,4 this Court stated that knowledge required for a
creditor to take legal action includes the ability to identify the responsible party
and the awareness that harm had been done to them. The concept of prescription
focuses on punishing prolonged inaction rather than the inability to act.
Therefore, when a statute mentions that prescription starts when wrongdoing is
first known to the creditor, it assumes that the creditor can recognise that they
have suffered harm caused by someone else.

1 Truter and Another v Deysel [2006] ZASCA 16; 2006 (4) SA 168 (SCA) para 15.
2 Mtokonya v Minister of Police [2017] ZACC 33; 2017 (11) BCLR 1443 (CC); 2018 (2) SA 22 (CC).
3 Ibid paragraph 63.
4 Van Zijl v Hoogenhout [2004] ZASCA 84; [2004] 4 All SA 427 (SCA); 2005 (2) SA 93 (SCA) para 19.

[25] In Mr Reyners' case, the crucial question is whether, at the time he was
discharged from the hospital after falling from the moving train, he had
knowledge of the debtor's identity and the facts which related to the claim or if
he could have reasonably acquired that knowledge. Importantly, it is not
necessary for Mr Reyners to be aware of the legal consequences of these facts.
Even if he does not have actual knowledge of the facts but could have obtained
such knowledge through reasonable care, it is considered equivalent to having
actual knowledge.5

The approach of the majority on appeal
[26] Mantame J and Nuku J wrote separate concurring judgments. Mantame J
found Dr Le Fèvre's testimony unconvincing in her judgment because he did not
explain how Mr Reyners could manage multiple jobs, some lasting a year, while
supposedly needing a curator.

[27] Mantame J held that Mr Reyners was aware of his circumstances after he
sustained a head injury from the fall, as he took immediate action by wrapping
his shirt around his head and walking towards the N1 Highway to seek help. She
noted that despite sustaining a head injury, Mr Reyners continued to lead an
everyday life for a decade and even became a father, which indicated that he was
functioning well.

[28]  Mantame J concluded that the conversation between Mr Reyners and his
neighbour Mr Chadwick was sufficient proof that Mr Reyners had the relevant
mental capacity to institute a claim long before their conversation, as his
condition was ‘stable’, and he knew that he got injured. Mantame J furthermore
found that Mr Reyners provided coherent answers and shared information with

5 PriceWaterhouseCoopers Inc & others v National Potato Co-operative Ltd & Another [2015] ZASCA 2; [2015]
2 All SA 403 (SCA) para 14.

his parents without distortion. This, according to Mantame J, contradicted the
experts’ findings of cognitive and executive function loss. Nuku J, in turn, found
that if Mr Reyners had acted in the same manner as he did after meeting Mr
Chadwick, he would have been able to pursue his claim against PRASA in the
same way that he did, albeit many years later. The majority erred by basing its
findings on Mr Reyner’s conversation with Mr Chadwick. This was inadmissible
hearsay evidence as both Mr Reyners and Mr Chadwick were not called to testify
at the trial.

[29] PRASA failed to present any evidence to counter the claims of the
Curator’s expert witnesses regarding Mr Reyners’s disability and his need to be
assisted by a curator ad litem from the time of the incident. In this regard, the
joint minutes of neuropsychologists Dr Hemp and Ms Coetzee confirmed that Mr
Reyners required the assistance of both a curator ad litem and a curator bonis.
The joint minutes of the occupational therapists, Ms Else Burns-Hoffman and Ms
Herculene van Staden, also indicated unanimous agreement on this need. When
experts are tasked with providing facts based on their investigations, and they
reach an agreement with the opposing party’s experts regarding these facts, the
agreed-upon facts hold the same legal weight as facts that are explicitly agreed
upon in the pleadings in a pre-trial conference, or through an exchange of
admissions.6

[30] The majority assumed, in the face of uncontested expert evidence to the
contrary, that Mr Reyners had the same cognitive abilities as a person without
brain damage or disability. In doing so, the majority failed to acknowledge that
while Mr Reyners had some residual capacity to engage with society, his complex
attention and memory deficits, as noted by Ms Coetzee, made it difficult for him

6 Thomas v BD Sarens (Pty) Ltd para 11

to utilise his intellectual ability effectively. This was supported by Ms Cupido’s
evidence regarding Mr Reyners' memory lapses. Despite having some functional
abilities, Mr Reyners’ post-incident lifestyle did not negate his disability.

[31] I, therefore, agree with the conclusion of  Le Grange J, in the minority
judgment, that Mr Reyners’ capability to continue with some form of life after the
fall could not possibly mean that he must have obtained knowledge of all the
material facts from which the debt arose or which he needed in order to institute
an action. Given his physical and mental condition, pain, memory function, and
social environment, his failure to acquire such knowledge can hardly be regarded
as unreasonable.

[32] On the conspectus of the evidence as a whole, it is clear that Mr Reyners
has been under a disability or impediment since the incident, which prevented the
interruption of the running of prescription as contemplated in the Act. Even
though a curator was appointed approximately 12 years later, it was clear that Mr
Reyners needed a curator after the incident. Prescription began to run from the
date of the appointment of the curator ad litem. For all of these reasons, the appeal
must succeed.

[33] In the result, the following order is made:
1        The appeal is upheld with costs.
2        The order of the full court is set aside and replaced with the following:
‘The appeal is dismissed with costs.’

_______________________
K E MATOJANE
JUDGE OF APPEAL

Appearances

For appellant:
C Webster SC

Instructed by:
Jonathan Cohen & Associates Attorneys, Cape Town

Matsepes Inc, Bloemfontein

For respondent:
T D Potgieter SC
Instructed by:
Bossr Inc, Durbanville
Lovius Block, Bloemfontein.

THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
MEDIA SUMMARY OF JUDGMENT DELIVERED IN THE SUPREME COURT OF APPEAL
From:
The Registrar, Supreme Court of Appeal
Date:

28 November 2023
Status:
Immediate
The following summary is for the benefit of the media in the reporting of this case and does not
form part of the judgments of the Supreme Court of Appeal
Bisschoff N O obo Denzil John Reyners v Passenger Rail Agency of South Africa
[2023] ZASCA 160 (28 November 2023)
Today, the Supreme Court of Appeal (SCA) upheld an appeal from the Western Cape Division of the
High Court, Cape Town (high court). The order of the high court was set aside and replaced with one
dismissing the appeal. The appeal revolved around the question whether the appellant’s claim against
the respondent became time-barred three years after an incident when the appellant’s client sustained
severe injuries after falling from a moving train, or whether the prescription period had extended until
one year after the impediment that prevented the claim from proceeding had ceased to exist.

The appellant acted as curator ad litem on behalf of his client who sued the Passenger Rail Agency of
South Africa (PRASA) for damages resulting from the injuries sustained from the fall. During
proceedings in the high court, the respondent raised a special plea of prescription, claiming that the
matter had prescribed in terms of s 12 of the Prescription Act 68 of 1968 (the Act). The appellant,
however, indicated that s 12 was not applicable as the mental defects sustained by his client prevented
him from having knowledge of the debtor’s identity and that the injuries sustained rendered him of
unsound mind. Prescription could, therefore, only have started once he was placed under curatorship.

Section 13 of the Act provided that prescription would be delayed in certain circumstances, inter alia
when a person is placed under curatorship. In casu, this Court determined that the crucial question was
whether, at the time of him being discharged from the hospital after the injury, the appellant’s client had
knowledge of the debtor’s identity, or could have reasonably obtained knowledge of such the debtor’s
identity. The SCA determined that the high court erred when it assumed that the appellant’s client had
the same cognitive capabilities as a person without brain damage or a disability. It failed to acknowledge
that, while he had some residual capacity to engage with society, his complex attention and memory
deficits made it difficult for him to have utilised his intellectual abilities effectively, regardless of his post-
incident lifestyle.

The SCA determined that, on a conspectus of the evidence, it was clear that the appellant’s client had
been under an impediment since the injury and required the appointment of a curator to act on his
behalf. In the result, the appeal was upheld and the order of the high court replaced with one dismissing
the appeal.
~~~~ends~~~~