Barkhuizen v Napier Case' CCT 72/05 [2007] ZACC

Abstract

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.