Cape Town - Shoprite Checkers has lost its bid in the Supreme Court of Appeal (SCA) to challenge the amount of time that had lapsed concerning a former employee’s right to sue for damages suffered when she was flung from a forklift while packing goods on shelves.
The appeal revolved around the proper interpretation of the various sections of the Prescription Act. Prescription relates to the period after which a debt can be extinguished or written off.
In October 2014, the woman, then employed as a packer with a sales and marketing company, which renders merchandising services to retail stores, was at work at the Checkers Hyper in Meadowdale Shopping Mall, Edenvale.
While on duty, she climbed into a cage coupled to a forklift to pack merchandise on shelves. The cage was lifted by the forklift some four metres from the shop floor.
Unexpectedly, the cage tilted and ejected the woman, causing her to fall to the floor. The cage itself was dislodged from the forklift, toppled over and struck her on the head.
She was severely injured and rendered permanently mentally incapacitated.
Due to her permanent mental incapacity, she could not institute proceedings in her name. In February 2017, a practising attorney was appointed as her curator. Following his appointment, the curator instituted proceedings for damages in his representative capacity against Shoprite Holdings Limited in the Gauteng High Court, Johannesburg.
However in July, 2017, Shoprite Holdings Limited raised two special pleas asserting that it was not the owner of the store at the time and that instead, Shoprite Checkers (Pty) Ltd (Shoprite Checkers) was.
Some 11 months later, the curator withdrew the action against Shoprite Holdings. Then only in October 2018, the curator instituted fresh proceedings against Shoprite Checkers.
This then set in motion Shoprite Checkers’ move to file a special plea of prescription to the curator’s October 2018 summons, asserting that the claim had prescribed, court papers read.
Acting SCA President, Judge Xola Petse found: “Section 13(1)(a) could not be clearer.
It explicitly provides that apart from mental or intellectual disability, disorder or incapacity, a creditor under curatorship falls within the category of creditors who are subject to the provisions of s 13(1)”meaning that the completion of the relevant period of prescription would not occur before a year has elapsed after the date on which the impediment referred to in s 13(1)(i) ceases to exist.
“Simply put, the completion of the relevant period of prescription would not occur for as long as the impediment persists. For completeness, it bears emphasising that placing a person under curatorship is in itself an impediment and does not bring about a cessation of an impediment as Shoprite Checkers would have it.”
Shoprite Checkers did not respond to requests for comment by deadline.
Cape Times