It is with a collective sigh of relief that lawyers and insurance companies
take note that the saga of Barkhuizen and Napier has finally come to an
end by the judgment of the Constitutional Court. The issue at the heart of
the matter is the extent of the impact that the Constitution has on the
contractual relationship between individuals, and the constitutionality of
contractual provisions that limit a person’s right of access to the courts.
Time bar clauses that change prescription periods are not foreign to
insurance or other contracts. Their purpose is to curb inordinate delays,
procrastination and the protraction of disputes, and to bring about economic
certainty and business efficiency. The time agreed upon should
however not be so insufficient as to prevent the proper exercise of the
right of access to the courts.