About SAFLII
Databases
Search
Terms of Use
RSS Feeds
South Africa: Constitutional Court
SAFLII
>>
Databases
>>
South Africa: Constitutional Court
>>
1996
>>
[1996] ZACC 20
|

|

Mohlomi v Minister of Defence (CCT41/95) [1996] ZACC 20; 1996 (12) BCLR 1559; 1997 (1) SA 124 (26 September 1996)

Links to summary

CONSTITUTIONAL COURT OF SOUTH AFRICA
LEACH MOKELA MOHLOMI
Plaintiff
versus
MINISTER OF
DEFENCE Defendant
Heard on 21 November 1995
Decided on 26
September 1996 Case CCT 41/95
J U D G M E N T
DIDCOTT J:
[1] In the case that we now have
before us, a civil action which has come here from the Witwatersrand Local
Division of the Supreme
Court, the plaintiff is suing the defendant for damages.
They are claimed as compensation for the consequences of injuries which
the
plaintiff is said to have sustained on 2 May 1994 when a soldier shot him
intentionally. The litigation began while he was still
a minor. So he started
it with the help of his father and natural guardian. The pleadings in the
action have closed, but it has
not yet gone to trial.
[2] The claim is
contested by the defendant, whose plea denied all the allegations of fact on
which it was based. He also filed
a special plea, invoking section 113(1) of
the Defence Act (44 of 1957) and taking the preliminary point of non-compliance
with that.
The sub-section decrees that:
“No civil action shall be capable of being instituted against the State or
any person in respect of anything done or omitted
to be done in pursuance of
this Act, if a period of six months ... has elapsed since the date on which the
cause of action arose,
and notice in writing of any such civil action and of the
cause thereof shall be given to the defendant one month at least before
the
commencement thereof.”
Those dual
requirements, according to the defendant, governed the litigation but were not
met. He complained, firstly, that the time
which passed from 2 May 1994 until
the date when the action was instituted had exceeded six months and, secondly,
that the necessary
notice had been given to him less than a month in advance of
that later date. A replication to the special plea followed, in which
the
plaintiff disputed the first charge, conceded the second one, and contended that
neither mattered because the sub-section clashed
with sections 8, 22 and 28 of
the interim Constitution (Act 200 of 1993) and was therefore
invalid.
[3] The plaintiff then applied to the Witwatersrand Local
Division for an order under section 102(1) of the Constitution which referred
to
us, for our ruling on it, the issue raised by that contention. Goldblatt J,
who heard the application, granted the order that
had been sought. He accounted
for his decision by saying:
“I consider that it is in the interest of justice that the matter be
referred to the Constitutional Court in that at present
the merits of the
plaintiff’s claim cannot be considered because he is barred from
proceeding therewith by virtue of his
failure to give notice timeously to the
defendant in terms of section 113(1) of the Defence Act.”
Such was indeed the effect of section 113(1),
as dictated by the judgment delivered
in
Hartman v Minister van
Polisie
[1]
which had
placed that peremptory construction on an analogous provision couched in
comparable terms. Goldblatt J did not allude in
addition to the late start of
the litigation which had been alleged and denied. But the result of that, if
established, was the
same under the sub-section as the one that he mentioned
when dealing with the notice, barring the action in so many words, and its
significance called for no separate comment. The order of referral, I had
better add, questioned the constitutionality of the sub-section
in both its
parts.
[4] The first complaint voiced by the defendant has now, as it
happens, fallen away. Counsel agreed during the hearing before us
that the
summons had in truth been issued, and the plaintiff had thus instituted the
action,
[2]
on the day preceding the
last permissible one. That fact was readily ascertainable all along. It is
safe to suppose that, had the
defendant’s counsel received adequate
instructions initially, the objection would never have been taken. Although
the point
remained in dispute on the pleadings at the time of the referral, the
dispute was always an artificial one which I shall ignore,
viewing the case as
it would have looked from the beginning with no such feature.
[5] The
other circumstances that are germane to the constitutional issue have all been
common cause from the outset. They are simply
these. The action is indeed the
sort which section 113(1) describes and accordingly covers. The requisite
notice was
given to the defendant in the correct form and terms. That
occurred, however, twenty-eight days before the date when the litigation
commenced instead of the thirty-one comprising a month at the time of the year
that counted.
[6] The affidavit filed in support of the application for
the referral explained the lateness of the notice. No part of the story
that
it told was then or is now challenged. What emerges is this. After the shooting
the plaintiff was admitted to a hospital, where
he remained for some seven
weeks. A couple of months later he approached and sought assistance from the
Campus Law Clinic of the
University of the Witwatersrand, an office run by
attorneys and students which provides indigent people with free legal services.

It undertook to handle his case. During a consultation that followed the
student interviewing him gained the mistaken impression,
and recorded in the
file, that a policeman had shot him. The sequel was a notice saying so which
the Clinic sent at once to the
Minister of Safety and Security in professed
compliance with section 32(1) of the Police Act (7 of 1958), a provision
resembling
section 113(1) that operated then with reference to the police force.
The attorney in charge of the case, who knew that a soldier
was said to have
done the shooting, detected the mistake six weeks afterwards when he had the
occasion to examine the file. He immediately
gave the defendant the notice
which concerns us now. By that time, however, the deadline for the institution
of the action was
too close to brook the delay in launching it that would have
allowed thirty-one days to elapse before its commencement.
[7] The notice
would have complied fully with section 113(1) had the month during which it was
given happened to be February rather
than October, the actual one. Its
lateness by a few days strikes me as a matter of no great moment, especially
when so fortuitous a factor is borne in mind. That the
loss of those days
caused any prejudice to the other side, or even inconvenience, was never
suggested and sounds most unlikely.
One wonders why the defendant, or the
official entrusted with the decision if he was not personally responsible for
that, chose
in all those circumstances to lodge the objection and, in
particular, to persist with it after learning what had accounted for the
unpunctuality.
[3]
The President of
this Court put that very question to the defendant’s counsel when the case
was argued here, but he was unable
to answer it. The hard line taken seems on
the whole, and in the absence of information casting a better light on it, to
have been
unfortunate.
[8] The most pertinent of the three constitutional
provisions on which the plaintiff relies in attacking section 113(1) is
obviously
section 22. It proclaims that:
“Every person shall have the right to have justiciable disputes settled by
a court of law or, where appropriate, another independent
and impartial
forum.”
Whether the sub-section invades
that right is the first question which presents itself. An affirmative answer
poses in turn the second
question, which is whether section 33(1) of the
Constitution nevertheless excuses the invasion.
[9] An insistence on
notices of the kind required by section 113(1) is by no means peculiar to the
particular proceedings that it
governs. Similar conditions precedent to the
institution of actions are and have long been familiar features of our statutory
terrain,
especially the part occupied by departments of state, provincial
administrations and local authorities once they become prospective
defendants.
[4]
The conventional
explanation for demanding prior notification of any intention to sue such an
organ of government is that, with
its extensive activities and large staff which
tends to shift, it needs the opportunity to investigate claims laid against it,
to
consider them responsibly and to decide, before getting embroiled in
litigation at public expense, whether it ought to accept, reject
or endeavour
to settle them.
[5]
Over the years
some judges have drawn attention, even so, to the adverse effect on
claimants of requirements like those.
Innes JA described them in
Benning v
Union Government (Minister of
Finance)
[6]
as “(c)onditions
which clog the ordinary right of an aggrieved person to seek the assistance of a
court of law”. One
was thought by Watermeyer J in
Gibbons v Cape
Divisional Council
[7]
to be “a very
drastic provision” and “a very serious infringement of the rights
of individuals”.
[8]
In
Avex Air (Pty) Ltd v Borough of Vryheid
[9]
Botha JA spoke in the
selfsame vein of another “(h)ampering as it does the ordinary rights of an
aggrieved person to seek the
assistance of the courts”. And Corbett CJ
echoed that comment in
Administrator, Transvaal, and Others v Traub and
Others
1
[0]
when he observed
that the provision then in question “undoubtedly hampers the ordinary
rights of an aggrieved person to seek
the assistance of the courts”. Yet,
given its obviously useful and apparently legitimate purpose, I would have felt
disinclined
to rate the condition precedent set by section 113(1) as one
intrinsically repugnant to section 22 had that stood alone or been accompanied
by a lot more latitude than the sub-section allowed in the time fixed for the
start of the ensuing action and consequently for compliance
with it a month
earlier. For the obstacle to the litigation which it presented would then have
been seldom difficult to surmount.
[10] The condition does not, however,
stand on its own. It forms part and parcel of a composite scheme constructed
by section 113(1),
with the rest of which it is linked
inextricably. Nor
do its surroundings leave space for such greater leeway. The other
component of the scheme eliminates that by producing this rigid
effect. That the
notice precedes the commencement of the litigation by a
month or more can never suffice independently. The notice must also be given
no later than five months after the cause of action arose. Too short a period
will otherwise remain to issue the summons in time.
It would therefore be
artificial and unrealistic to appraise the requirement for notification in
isolation, heedless of the further
one regulating the institution of the action
with which it was coupled and calibrated. Instead we need to examine the
sub-section
as a whole and in all its implications. The stipulation governing
the start of the proceedings has then to be considered, although
it was obeyed
in this case. To that I shall accordingly turn my attention. No
jurisdictional or procedural barrier confronts
us there, I mention in
parenthesis, since the referral placed the entire topic squarely on our agenda
and we heard full argument
on it.
[11] Rules that limit the time during
which litigation may be launched are common in our legal system as well as many
others. Inordinate
delays in litigating damage the interests of justice.
They protract the disputes over the rights and obligations sought to be
enforced,
prolonging the uncertainty of all concerned about their affairs. Nor
in the end is it always possible to adjudicate satisfactorily
on cases that have
gone stale. By then witnesses may no longer be available to testify. The
memories of ones whose testimony can
still be obtained may have faded and become
unreliable. Documentary evidence may have disappeared. Such rules prevent
procrastination
and those harmful consequences of it. They thus serve a
purpose to which no exception in principle can cogently be taken.
[12] It
does not follow, however, that all limitations which achieve a result so
laudable are constitutionally sound for that reason.
Each must nevertheless be
scrutinised to see whether its own particular range and terms are compatible
with the right which section
22 bestows on everyone to have his or her
justiciable disputes settled by a court of law. The right is denied
altogether, of course,
whenever an action gets barred eventually because it was
not instituted within the time allowed. But the prospect of such an outcome
is
inherent in every case, no matter how generous or meagre the allowance may have
been there, and it does not
per se
dispose of the point, as I view that
at any rate. What counts rather, I believe, is the sufficiency or
insufficiency, the adequacy
or inadequacy, of the room which the limitation
leaves open in the beginning for the exercise of the right. For the consistency
of the limitation with the right depends upon the availability of an initial
opportunity to exercise the right that amounts, in
all the circumstances
characterising the class of case in question, to a real and fair one. The
test, thus formulated, lends itself
to no hard and fast rule which shows us
where to draw the line. In anybody’s book, I suppose, seven years would
be a period
more than ample during which to set proceedings in motion, but seven
days a preposterously short time. Both extremes are obviously
hypothetical.
But I postulate them in order to illustrate that the enquiry turns wholly on
estimations of degree.
[13] A handy yardstick against which to measure
the limitation imposed by section 113(1) on the actions that it controls will be
found
in chapter III of the Prescription Act (68 of 1969). The chapter deals
in general with debts extinguished by the effluxion of
time, or prescribed as
it calls the process. It consists of sections 10 to 16. In terms
of
section 11(d), as read with section 10(1), the period of prescription pertaining
to delictual debts is three years, “save
where an Act of Parliament
provides otherwise”. It starts to run, according to section 12(1),
“as soon as the debt is
due”. Section 12(3) deems the debt not to
be due, however, “until the creditor has knowledge of the identity of the
debtor and of the facts from which the debt arises” or until he or she
could have learnt of those circumstances “by exercising
reasonable
care”. Section 13(1)(a) caters for minors, extending the period in
their cases. And section 16(1) ordains that:
“(T)he provisions of this chapter shall, save in so far as they are
inconsistent with the provisions of any Act of Parliament
which prescribes a
specified period within which ... an action is to be instituted in respect of a
debt ..., apply to any debt arising
after the commencement of this
Act.”
The Appellate Division of the
Supreme Court held in
Hartman v Minister van
Polisie
1
[1]
that the
provisions of the chapter were indeed inconsistent with section 32(1) of the old
Police Act, its counterpart to section
113(1). It followed that the time
allowed there for actions to begin against the police was no alternative period
of prescription
regulated otherwise by the chapter, but a
“vervaltermyn” to which none of the relaxations applied and the
expiry of which
therefore exhausted the allowance automatically and immediately.
That the same went for section 113(1) itself was decided by the
Appellate
Division in the later case of Pizani v Minister of Defence
, where Corbett JA
said:
1
[2]
“The consequence ... is that a plaintiff who has failed to comply with
the time limitation of section 113(1) is generally debarred
from suing and
cannot rely upon any of the grounds which delay the commencement of the running
of prescription (see section 12 of
the Prescription Act) or delay the completion
of prescription (see section 13 of the Prescription Act). One of the grounds
which
delays the commencement of the running of prescription is the
creditor’s lack of knowledge of the identity of the debtor and
the facts
from which the debt arises ... From a general equitable point of view, it seems
unfortunate that this provision of the
Prescription Act, at least, does not
apply to expiry periods.”
The
remedy for the inequity lay, he
added,
1
[3]
in the hands of
the legislature. The hint has not, however, been taken. So section 113(1)
remains one that differs markedly
and materially in its effect from the
provisions of the chapter, not only requiring actions to be instituted much
earlier but also
insisting on strict compliance with the requirement in all
cases governed by it, no matter how harsh that may turn out to be in the
circumstances of some individual
ones.
1
[4]
[14] That
disparity must be viewed against the background depicted by the state of affairs
prevailing in South Africa, a land where
poverty and illiteracy abound and
differences of culture and language are pronounced, where such conditions
isolate the people whom
they handicap from the mainstream of the law, where most
persons who have been injured are either unaware of or poorly informed about
their legal rights and
what they should do in order to enforce those,
and where access to the professional advice and assistance that they need so
sorely
is often difficult for financial or geographical reasons. The severity of
section 113(1) which then becomes conspicuous has the effect,
in my opinion,
that many of the claimants whom it hits are not afforded an adequate and fair
opportunity to seek judicial redress
for wrongs allegedly done to them. They
are left with too short a time within which to give the requisite notices in the
first
place and to sue in the second. Their rights in terms of section 22 are
thus, I believe, infringed.
[15] The question which arises then is
whether section 33(1) of the Constitution countenances the infringement. That
depends, in
the first place, on its passing the tests of reasonableness and
justifiability which are set there. Both tests require the competing
interests and values that it impairs and promotes to be weighed against one
another for an appraisal of their proportionality.
Some factors which count
on that leg of the enquiry, and the most telling of those as I see them, were
underlined by Chaskalson
P in S v Makwanyane and Another
1
[5]
when he listed
-
“... the nature of the right that is limited, and its importance to an
open and democratic society based on freedom and equality;
the purpose for
which the right is limited and the importance of that purpose to such a society;
the extent of the limitation,
its efficacy and, particularly where the
limitation has to be necessary, whether the desired ends could reasonably be
achieved through
other means less damaging to the right in
question.”
[16] The nature and
importance of the right proclaimed by section 22 speak for themselves and call
for no elaboration. The purpose
of requirements like those imposed by section
113(1) was canvassed, and the arguments for and against them were analysed, by
the
South African Law Commission a decade
ago.
1
[6]
They
revolved
around the peculiar difficulties, largely logistical, that
were said to beset the state whenever it was sued. Those the Commission
discounted on the whole. With some minor exceptions it recommended, in vain as
things turned out, that all such special requirements
should be scrapped, that
the general and ordinary ones for which the Prescription Act provided should
apply instead to litigation
brought against departments of state and other
organs of government, that a prior notification of the intention to sue any of
those
for a delict ought to be the only extra condition regulating an action
aimed at it, and that the courts should be empowered to condone
non-compliance
there.
[17] The defendant had to satisfy us that the invasion of
section 22 was reasonable and justifiable. His counsel tried to demonstrate
that by repeating but adding nothing to the very arguments which had failed to
convince the Commission. I shall discuss neither
those nor the reasons given
by it for having believed that the adoption and implementation of its proposals
would suffice to meet
whatever real difficulties the state might encounter on
such occasions. For, when it comes to the last consideration highlighted
by
Chaskalson P in the passage quoted a moment ago, there is no need
to
go beyond a comparison between section 113(1) and the corresponding provisions
of the South African Police Service Act (68 of 1995),
a statute passed and put
into operation last year after Proclamation R5 of 1995 repealed the Police Act.
It replaced section 32(1)
of that with its own section 57, the first and second
sub-sections of which now govern litigation directed at the police and stipulate
that:
“(1) No legal proceedings shall be instituted against the Service or
any body or person in respect of any alleged act performed
under or in terms of
this Act or any other law, or an alleged failure to do anything which should
have been done in terms of this
Act or any other law, unless the legal
proceedings are instituted before the expiry of a period of 12 calendar months
after the date
upon which the claimant became aware of the alleged act or
omission, or after the date upon which the claimant might be reasonably
expected
to have become aware of the alleged act or omission, whichever is the earlier
date.
(2) No legal proceedings contemplated in sub-section (1) shall be instituted
before the expiry of at least one calendar month after
written notification of
the intention to institute such proceedings has been served on the defendant,
wherein particulars of the
alleged act or omission are
contained.”
Sub-section
(5), a highly important one, follows in the wake of those, declaring
that:
“Sub-sections (1) and (2) shall not be construed as precluding a court
of law from dispensing with the requirements or prohibitions
contained in those
sub-sections where the interests of justice so
require.”
The wording of that
looks odd. It appears to have presupposed a power inherent in the courts to
condone defaults of the kind covered
which needed to be preserved. But courts
have no such inherent power, and none derived from any source unless and until
it is
conferred on them. That the sub-section grants them the power in the
circumstances mentioned must necessarily be implicit in its
terms, however,
since they make no sense otherwise.
[18] Whether section 57
passes constitutional muster is a question that does not arise now and one on
which I shall say nothing
in case we are required to consider it more
thoughtfully on some future occasion. All that matters at present is this.
Its
provisions go to show what satisfies Parliament nowadays as a scheme
sufficient yet effective for the protection of the state’s
legitimate
interests in actions instituted against the police force. There is no reason
to doubt that the same type of scheme would
serve its interests equally, and
therefore adequately, in proceedings brought against the army. In their
incidence and frequency,
after all, those can scarcely exceed the ones that
relate to the police, indeed probably fall well short of them. Nor on any
other
score which occurs to me is the need of the state for protection an iota
greater there.
[19] The contrasts between section 113(1) and
section 57 are striking. The time allowed by the latter for the start of any
action,
and accordingly for the prior notification of its imminence, is twice
as long as that fixed by the former. The period begins to
run not from the
date when the cause of action arises, an occurrence of which a claimant may well
be unaware at the time, but from
the date when both the conduct in question and
the identity of its perpetrator becomes or should reasonably become known to him
or
her. Ignorance of that second fact, more common perhaps than of the first,
is easily illustrated. One thinks, for instance, of
a hit and run collision
caused by an unidentified motorist or an assault committed by somebody clad in
battle dress of the sort
worn by soldiers and the police alike which no civilian
witness to the incident can tell apart. Then, in empowering the court to
condone non-compliance with its requirements, section 57 permits account to be
taken of the claimant’s fault or the lack of
that and the prejudice
suffered by the state or its absence, factors that are wholly irrelevant to the
operation of section 113(1).
While paying due attention to the state’s
interests, section 57 is consequently much less stringent and detrimental to
the
interests of claimants than section 113(1).
[20] I thus
conclude that the encroachment by section 113(1) on the right which section 22
proclaims cannot rightly be rated as, and
has certainly not been shown to be,
either reasonable or justifiable in the light of the option readily available to
Parliament
of emulating section 57. It follows that, in my judgment, section
33(1) does not sanction the intrusion and section 113(1) is therefore
constitutionally invalid.
[21] Section 113(1) was also
attacked, as I mentioned initially, on the grounds of its alleged
incompatibility with section 8 of the
Constitution, the one guaranteeing
equality before and the equal protection of the law, and with the entrenchment
by section 28
of the right to property. The inequality lay, so it was said,
in the discrimination between the general run of plaintiffs and
those whose
cases the sub-section affected, to their disadvantage, and furthermore between
the state when sued and in suing. The
other alternative challenge depended on
the proposition that a right of action amounted to a species of incorporeal
property which
was shielded. The conclusion to which I have come about the
impact of section 22 on the sub-section makes it unnecessary for me
to consider
either of those additional contentions.
[22] Counsel who
appeared for the defendant relied on the decisions given in three cases
to which I had better refer before
finishing. They were Stambolie v
Commissioner of Police
,
1
[7]
The Chairman of the Council of State v Qokose
1
[8]
and Mwellie v Ministry of
Works, Transport and Communication and
Another
,
1
[9]
which had to do
respectively with the Constitutions of Zimbabwe, the Ciskei and Namibia. A
statutory limitation on the time within
which a particular class of litigation
might be launched was assailed unsuccessfully in each of those cases. They are
not, however,
in point now. None of them involved a provision like section 22.
[23] The Qokose
and
Mwellie
matters turned on the
issue of equality. On both occasions the reasonableness of the requirements
was admittedly a question which
arose in that context. The
Mwellie
ones
satisfied the court. But they were a lot more lenient than those of
section 113(1) and are distinguishable with ease from
it. In the
Qokose
case Rabie JA, who wrote the judgment, found that the unreasonableness of the
restriction had not been proved by the evidence
adduced. There, I believe,
he took too narrow a view of the matter. The facts pertinent to it were so
notorious that they surely
called for no evidential demonstration. I have in
mind the heavy handicaps described
earlier
2
[0]
that burden countless
claimants throughout Southern Africa and the hardship inherent everywhere in
rigid requirements which cannot
be relaxed even when the failure to comply with
them has been neither blameworthy nor prejudicial to the other
side.
[24] The case of Stambolie
concerned a provision of the
Zimbabwean Constitution which entrenched the right to compensation for any
unlawful arrest or detention.
The
statutory limitation applicable to
actions brought against the police force was held not to be inconsistent with
the entrenchment.
It therefore hit an action for the enforcement of the
right. Gubbay JA had this to say about
it:
2
[1]
“It was not urged that the periods of time prescribed ... are so
inadequate as, in a practical sense, to nullify the fundamental
right in
question.”
The dimensions of
the particular limitation, one thus sees, were not in issue there. Gubbay JA
nevertheless passed some general
remarks on the topic by adding:
“Although one may envisage situations in which the person would be
absolutely unable to give notice and commence action within
the times permitted,
for instance he may have been incapacitated in an accident, the adequacy of the
period must be tested against
the normal and not the extraordinary situation.
For statutes of limitation do not distinguish between just and unjust delay.
This means that in the very rare case a person with a good claim, through no
dilatoriness or fault on his part but due to circumstances
beyond his control,
will be barred from asserting a constitutional
right.”
Store was set in argument
by that passage. My comments on it and the preceding one are these. The flaw
that counts under our Constitution
does not have to go the length of
“nullifying” an entrenched right. Its infringement on any given
occasion will do.
In investigating that we too would scarcely test a
statutory provision against some truly extraordinary situation. Nor, on
the
other hand, would we necessarily postulate none but the normal sort. One
sufficiently conceivable for the prospect of it
to be regarded as realistic
amounts always to an acceptable hypothesis. Such a situation is certainly
encountered here once the
circumstances are those described in the last sentence
of the second passage. They are by no means rare in this country, as all
our
lawyers experienced in handling delictual work know full well. That is
precisely why failures to differentiate between excusable
and inexcusable
delays worry us. It also explains why some South African statutes do indeed
differentiate between the
two,
2
[2]
illustrating that
the generalisation to the contrary is not in any event apt here. So, in a
number of pertinent respects, that case
too can be distinguished clearly from
the present one.
[25] All that remains to be considered is the
form which the ensuing order should take. Section 113(1) must be struck down,
I believe,
in its entirety. The portion that affects proceedings brought
against “any person”, as distinct from the state, is
no less
objectionable than the rest and can hardly be preserved. The
invalidation will operate fairly and serve the interests of justice
by
encompassing the cases for which the order is about to cater under section 98(6)
of the Constitution. They will all be regulated
by chapter III of the
Prescription Act until Parliament produces a suitable replacement for section
113(1). For the provisions
of that chapter which exclude from its ambit matters
governed elsewhere will not apply to those cases once they have been removed
from and while they then remain beyond such separate control. The date
mentioned in the order is, of course, the one when the Constitution
came into
force. That leaves only the question of costs, which counsel answered by
agreeing on no order with regard to them.
[26] In the result an
order is now made in the terms that follow.
(a) Section 113(1) of the Defence Act is declared to be inconsistent with
section 22 of the interim Constitution and to be invalid
for that
reason.
(b) Such declaration of invalidity will apply to and govern all actions
instituted either before or since 27 April 1994 which were
not already barred by
section 113(1) on that date and which, at the time of this order, have not yet
been finally determined by
judgments delivered at first instance or on appeal or
by settlements duly concluded.
(c) The present case is remitted to the Witwatersrand Local Division so that
the action may be tried there.
Chaskalson
P, Mahomed DP, Ackermann J, Kentridge AJ, Kriegler J, Langa J, Madala J,
Mokgoro J, O’Regan J, and Sachs J
all concurred in the judgment of
Didcott J.
For the plaintiff: G J Marcus, with
him B E Leech, instructed by the Campus
Law Clinic of the
University of the Witwatersrand.
For the defendant: Z F Joubert
SC, with him P Stais, instructed by the State Attorney.
[1]
1983(2) SA 489(A) at 496
F-G.
[2]
See
Labuschagne v
Labuschagne; Labuschagne v Minister van Justisie
1967(2) SA 575(A) at
585D-586B.
[3]
The defendant could competently
and effectively have waived the objection since section 113(1) was conceived in
the interests and
designed for the benefit of his department rather than the
general public: cf
Steenkamp v Peri-Urban Areas Health Committee
1946 TPD
424
at 428-9;
Minister van Polisie en ’n Ander v Gamble en ’n
Ander
1979 (4) SA 759
(A) at 770C;
SA
Eagle Insurance Co Ltd v
Bavuma
1985(3) SA 42(A) at 49G-50F.
[4]
Some other contemporary examples
will be found in section 343(1) of the Merchant Shipping Act (57 of 1951),
section 90(2) of the
Correctional Services Act (8 of 1959), section 96(1) of the
Customs and Excise Act (91 of 1964), section 2(1)(a) of the Limitation
of Legal
Proceedings (Provincial and Local Authorities) Act (94 of 1970), section
25(1)(a) of the National Roads Act (54 of 1971)
and section 57(2) of the South
African Police Service Act (68 of
1995).
[5]
See
Stevenson NO v Transvaal Provincial Administration
1934 TPD 80
at 84;
Osler v
Johannesburg City Council
1948(1)SA 1027(W) at 1031;
Administrator, Transvaal v
Husband
1959(1)SA 392(A) at 394B;
Dease v Minister van Justisie
1962(2)SA 302(T)
at 305D-E;
Pakco
(Pty) Ltd v Verulam Town Board and Others
1962(4)SA 632 (D) at
634G;
Stokes v Fish Hoek Municipality
1966(4)SA 421 (C) at 423H-424C; the case
of
Labuschagne
(cited in footnote 2) at 588A-C;
Sarrahwitz v
Walmer Municipality
1967(4)
SA 286 (E) at 288C-D;
Minister of Defence v Carlson
1971(2)SA 231
(N) at 235D-E.
[6]
1914 AD 180
at 185.
[7]
1928 CPD 198
at 200. There
the notice had to be given within the exceptionally short period of seven days
after the incident from which the
claim arose. One month before suing was
the time legislatively specified in the other cases cited in this paragraph.
[8]
That second passage was quoted
with approval by Van Winsen J in the case of
Stokes
(cited in footnote
5) at 425H and by Eksteen J in the one of
Sarrahwitz
(also cited
there) at 288 G.
[9]
1973(1) SA 617(A) at
621F-G.
1
[0]
1989(4) SA 731 (A) at
764E.
[1]
1
See para 3 of this judgment,
footnote 1; at 499 C-H and 500 D.
1
[2]
1987(4)SA 592(A) at 602
D-G.
1
[3]
at 606E.
1
[4]
The actual impossibility of
compliance is the only exception which has yet been recognised. See
Montsisi v Minister van Polisie
1984(1)SA 619(A) at 638 H.
1
[5]
para 104: 1995(3)SA 391 (CC)
at 436 E-F; 1995(6) BCLR 665 (CC) at 708 F-G.
1
[6]
See its report entitled
Investigation into Time Limits for the Institution of Actions against the
State
: Project 42, October 1985.
1
[7]
1990(2)SA 369 (ZSC).
1
[8]
1994(2)BCLR 1(CkAD).
1
[9]
1995(9)BCLR 1118 (NmH).
2
[0]
See para 14 of this
judgment.
2
[1]
at 374H.
[2]
2
Instances of provisions
permitting the difference to be taken into account, besides section 57 (5) of
the South African Police Service
Act, are seen in section 14(3) of the Motor
Vehicle Accidents Act (84 of 1986) and section 39 (3) of the Public Service Act
(Proclamation
103 of 1994).