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[2019] ZASCA 43
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Mabaso v National Commissioner of Police and Another (1222/2017) [2019] ZASCA 43; 2020 (2) SA 375 (SCA) (29 March 2019)
THE
SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case
No: 1222/2017
In the matter between:
TIMOTHY
FANFANI
MABASO APPELLANT
And
NATIONAL
COMMISSIONER OF POLICE FIRST
RESPONDENT
MINISTER
OF
POLICE SECOND
RESPONDENT
Neutral
citation:
Mabaso
v National Commissioner of Police & another
(1222/2017)
[2019] ZASCA 43
(29 March 2019)
Coram:
Navsa
AP, Van der Merwe, Makgoka JJA and Mokgohloa and Eksteen AJJA
Heard:
21
February 2019
Delivered:
29
March 2019
Summary
:
State – actions against –
s 3
of the
Institution of Legal
Proceedings Against Certain Organs of State Act 40 of 2002
–
interpretation thereof – whether by necessary implication there
is a duty on an organ of state receiving notice in
terms of
s 3
to
make a decision to accept, reject or settle claim prior to
commencement of litigation.
ORDER
On
appeal from:
Western
Cape Division, Cape Town (Le Grange J) sitting as court of first
instance:
1 The appeal is dismissed with no
order as to costs.
2 The order of the court a quo is
amended to read as follows:
‘
The
application is dismissed with no order as to costs.’
JUDGMENT
Makgoka
JA (Navsa AP, Van der MerweJA and Mokgohloa and Eksteen AJJA
concurring)
[1]
Section 3(1)(
a
) of the Institution of Legal Proceedings
Against Certain Organs of State Act 40 of 2002 (the Act) provides
that no legal proceedings
for the recovery of a claim may be
instituted against an organ of state unless the claimant has
given written notice to such
an organ of state of his or her or its
intention to institute such legal proceedings. In terms of s 3(2)(
a
)
of the Act, such notice must be given within six months after the
claim (styled ‘debt’) became due. The specific organ
of
state in this instance is the department of police, nominally
represented by the second respondent, the Minister of Police (the
Minister), and the first respondent, the National Commissioner of
Police (the Commissioner).
[2]
The issue in this appeal is whether an organ of state receiving such
notice is obliged to make a decision on whether to accept,
reject or
endeavor to settle the claim prior to litigation, and to provide
reasons to a claimant for such decision. The court a
quo, the Western
Cape Division of the High Court, answered that question in the
negative, and dismissed with costs, the appellant’s
application
seeking a declaratory order to that effect. The appeal is with the
leave of the court a quo.
Factual
background
[3]
The facts are straightforward. On 10 June 2015 the appellant, Mr
Timothy Mabaso, through his attorneys, gave notice in terms
of s
3(1)(
a
)
of the Act to the Commissioner, of his intention to institute a
damages claim against the Minister.
[1]
It is common cause
that the notice was served within the six months period prescribed in
s 3(2)(
a
)
of the Act. In that notice, it was alleged that following his arrest
and detention on 20 February 2015, the appellant had been
assaulted
by the police whilst in custody. A sum of R400 000 was claimed for
general damages and for loss of earnings, payable
within 14 days.
[4]
There was no response to the notice, nor to a subsequent letter dated
13 July 2015. In the latter correspondence, instead of
payment, it
was demanded of the Commissioner to take a decision within 14 days as
to whether he admitted liability. The Commissioner
was given until 7
August 2015 to make that decision, failing which an application would
be brought to ‘enforce our right
to a decision from you.’
There was similarly no response to that letter, and further
correspondence yielded no substantive
answer.
[5]
As a result, on 2 December 2015, the appellant launched an
application in the court a quo for the following relief: a declarator
that the respondents have an obligation to take a decision to accept,
reject or settle the claim; a concomitant order in terms
of the
Promotion of Administrative Justice Act 3 of 2000 (the PAJA), for the
review and setting aside, of the respondent’s
failure to take
the decision; and an ancillary order directing the respondents to
take a decision and inform the applicant thereof,
within 14 days of
service of the order, with ‘full and suitable written reasons
therefor’. As stated already, the application
was dismissed.
The court a quo reasoned that, given the context and purpose of the
provisions of the Act, it could not have been
intended by the
legislature to create a duty on the respondents to take a decision to
accept, reject or endeavour to settle claims
pursuant to a s 3
notice, prior to commencement of litigation.
Mootness
[6]
At the commencement of the proceedings before us, we enquired of the
parties whether the action contemplated in the notice in
terms of s 3
had already been instituted. We were informed that summons had been
issued and served on the department in November
2017, and that the
action was being defended. Subsequent to the hearing, on 6
March 2019, the appellant’s attorney
formally filed a notice in
which the following was confirmed: given that the claim would have
prescribed on 20 February 2018, summons
was issued on 24 November
2017 and served on 29 November 2017; a notice of intention to defend
was served on 6 December 2017; the
department had delivered its plea
on 18 October 2018, and a trial date has not yet been allocated.
[7]
In light of this, the question of mootness arises. Simply put, it now
appears that the department has decided to repudiate the
claim. In
conventional terms, thus, strictly speaking, there is no need to
compel the department to make a decision. Section 16(2)(
a
) of
the
Superior Courts Act 10 of 2013
provides that:
‘
(i)
When at the hearing of an appeal the issues are of such a nature that
the decision sought will have no practical effect or result,
the
appeal may be dismissed on this ground alone.
(ii)
Save under exceptional circumstances, the question whether the
decision would have no practical effect or result is to be determined
without reference to any consideration of costs.
[8]
Generally, courts do not decide issues of academic interest only. In
Radio
Pretoria v Chairman, Independent Communications Authority of South
Africa & another
2005 (1) SA (SCA) para 41 it was pointed out that courts ‘decide
real disputes and do not speculate or theorise’ and
that
‘statutory enactments are to be applied to or interpreted
against particular facts and disputes and not in isolation.’
This court has repeated this on a number of occasions.
[2]
[9]
However, there is a caveat to the general principle. A court has a
discretion to enter into the merits of an appeal, notwithstanding
the
mootness of the issue as between the parties, where, as was put in
Qoboshiyane
NO & others v Avusa Publishing Eastern Cape (Pty) Ltd &
others
[2012] ZASCA 166
;
2013 (3) SA 315
(SCA) para 5, when ‘a
discrete issue of public importance arose that affect matters in the
future’ and on which adjudication
of this Court is required.
[3]
The Constitutional
Court summed up the approach thus in
Ferreira
v Levin NO & others; Vryenhoek & others v Powell NO &
others
1996
(1) SA 984
(CC);
1996 (1) BCLR 1
(CC) (
Ferreira)
para 164:
‘
[I]n
an adversarial system decisions are best made when there is a genuine
dispute in which each party has an interest to protect.
There is
moreover the need to conserve scarce judicial resources and to apply
them to real and not hypothetical disputes. …These
objections
do not apply to the present case. The applicants have a real and not
hypothetical interest in the decision. The decision
will not be
academic; on the contrary it is a decision which will have an effect
on all
s 417
enquiries and there is a pressing public interest that
the decision be given as soon as possible.’
See
also
Laugh It Off Promotions CC v South African Breweries
International (Finance) BV t/a Sabmark International and another
[2005] ZACC 7
;
2006 (1) SA 144
(CC);
2005 (8) BCLR 743
(CC) para
28, where the Constitutional Court, in deciding to hear a matter
which had become moot by the time it reached that court,
considered
the matter to have ‘important and abiding implications for the
workings of our economy’ and of concern to
the broader public.
[10]
In this case, despite the matter being moot between the parties, the
interpretive issue raised in the appeal is of importance,
involving
as it does, the statutory responsibilities of an organ of state and
the rights of prospective litigants who give notice
of a contemplated
litigation. Should the appellant succeed, the decision will
have serious implications for how organs of
state deal with the
notices of the kind in question. There will of course also be
attendant logistical and management issues that
will arise.
Furthermore, the appeal concerns a discrete legal issue – the
interpretation of s 3 of the Act. It is therefore
my view that the
appeal should be entertained.
Background
and purpose of the Act
[11]
It is useful to have regard to the background and purpose of the Act.
As noted in
Minister
of Safety and Security v De Witt
[2008] ZASCA 103
;
2009 (1) SA 457
(SCA) para 1, the Act followed on
the judgments of the Constitutional Court in
Mohlomi
v Minister of Defence
[1996] ZACC 20
;
1997
(1) SA 124
(CC) and
Moise
v Greater Germiston Transitional Local Council
:
Minister
of Justice and Constitutional Development Intervening
[2001] ZACC 21
;
2001
(4) SA 491
(CC);
2001 (8) BCLR 765
(CC) in which onerous limitation
provisions relating to notices to be given in respect of contemplated
litigation against the state
were found to be inconsistent with the
right of access to courts and declared invalid. The advent of the Act
was foreshadowed in
Moise
paras 20-22.
[12]
As to its purpose, the long title to the Act states it as being ‘[T]o
regulate prescription and harmonize the periods
of prescription of
debts for which certain organs of state are liable; to make provision
for notice requirements in connection
with the institution of legal
proceedings against certain organs of state in respect of recovery of
debt.’ The Act repealed
several statutes that had previously
regulated proceedings against various state organs, including the
police, defence force and
local authorities. In the preamble,
there is, amongst others, reference to the right of access to courts
as enshrined in
s 34 of the Constitution, and justifiable limitations
thereon in terms of s 36 of the Constitution.
Rationale
for limitation provisions
[13]
It must be emphasised that provisions such as s 3, as correctly
observed in
Mogopodi
,
are designed primarily for the benefit of organs of state, rather
than prospective litigants. This view is fortified by the decisions
of this court in relation to s 32 of the repealed Police Act. The
provisions of that section, which were analogous to s 3, were
held to
have been designed for the benefit of the police rather than the
prospective plaintiff.
[4]
The Constitutional
Court adopted this view in
Mohlomi
para 7. And, in
Moise
para 10 it was stated that the object of similar statutory provisions
is ‘to protect the interests of the defendants.’
In
Madinda
v Minister of Safety and Security
[2008] ZASCA 34
;
[2008] 3 All SA 143
(SCA);
2008 (4) SA 312
(SCA) at
para 7 this court adopted the view in relation to s 3.
[14]
In
Mohlomi
,
para 9, Didcott J explained
the
general purpose of clauses such as s 3(1):
‘
The
conventional explanation for demanding prior notification of any
intention to sue 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.’
[15]
Similarly, in
Mogopodi
v Member of the Executive Council for the Free State
[2008] ZAFSHC 38
,
the Free State High Court reiterated this purpose when it said at
para 7 that the underlying purpose for the giving of notice
in terms
of s 3 of the Act was one of convenience in order to assist the
particular organ of state to conduct proper investigations
into the
claim and then to decide whether to make payment or defend the
intended action.
[16]
It is against this backdrop that I consider the appellant’s
assertions as to the purpose of s 3. Counsel for the appellant
submitted, with reference to the passages in
Mohlomi
and
Mogopodi
, referred to above, that the purpose of s 3 is to
create an obligation on an organ of state to make a decision on
whether to accept
or repudiate a claim prior to litigation. It
must be pointed out that whether an organ of state has an obligation
to make
a decision pursuant to a notice in terms of s 3, did not
arise in either of the two cases.
[17]
Mohlomi
concerned the validity of s 113(1) of the Defence Act
44 of 1957. The subsection limited to six months, the period within
which
actions against the Minister of Defence relating to the conduct
of members of the defence force had to be instituted after the cause
of action arose. And, a notice had to be given to the Minister one
month before the commencement of the action. The subsection
was found
to constitute an unjustifiable infringement of the right of access to
courts, and was accordingly declared invalid. In
Mogopodi
the
issue was whether the notice given complied with s 3. The remarks in
the passages referred to were thus made in passing. It
is in that
context the passages should be understood. They have no bearing on
the interpretation of the provisions of s 3.
The
relevant provisions of the Act
[18]
It is convenient now to consider the relevant provisions of the Act.
As stated above, s 3(1)(
a
) provides that no legal
proceedings for the recovery of a claim may be instituted against an
organ of state unless the claimant
has given written notice to
such an organ of state of his or her or its intention to institute
such legal proceedings. As previously
stated, in terms of s (3)(2)(
a
)
such notice must be served on the organ of state within six months
from the date on which the claim became due. That notice must,
in
terms of s 3(2)(
b
)(i) and (ii), briefly set out the facts
giving rise to the claim, and such particulars as are within the
knowledge of the claimant.
[19]
Section 3(4) empowers a court, on application, to condone a failure
by a claimant to serve a notice, either timeously, or at
all. It is
clear that s 5(2), set within the architecture of the Act,
contemplates that an indication of repudiation of liability
might be
given before the expiry of the 30 day period, ie before litigation.
It is equally clear that there is no obligation in
the subsection on
the state during that period to make such a decision. However, should
an organ of state repudiate liability before
the expiry period, the
claimant may commence litigation upon such repudiation.
Interpretive
framework
[20]
A resolution of the present dispute requires a consideration of a
proper construction of s 3 of the Act, read contextually.
The
principles which should inform that exercise are trite. The starting
point is the Constitution. It commands courts in s 39(2),
when
interpreting any legislation, to promote the spirit, purport and
objects of the Bill of Rights. Courts must also adopt a generous
and
purposive approach as explained in
Ferreira
para 46.
[21]
There is no express provision in s 3 that places an obligation
on an organ of state to make a decision concerning the
contemplated
legal proceedings prior to it being instituted, as contended for by
the appellant. Such an obligation can only be
found by reading the
provision by implication into the section. As observed by Corbett JA
in
Rennie
NO
v Gordon & another NNO
1988
(1) SA 1
(A) at 22D-F, words cannot be read into a statute by
implication unless the implication is a necessary one in the sense
that without
it effect cannot be given to the statute as it stands.
See also
Palvie
v Motale Bus Service (Pty) Ltd
[1993] ZASCA 105
;
1993 (4) SA 742
(A) at 749C. This important injunction received the
imprimatur of the Constitutional Court in
Bernstein
& others v Bester NO & others
[1996] ZACC 2
;
1996
(2) SA 751
(CC) para 105.
[5]
The
appellant’s case
[22]
Counsel for the appellant submitted that s 3 should be read so as to
oblige an organ of state to make a decision subsequent
to receipt of
a notice in terms of s 3, and prior to litigation. He submitted that
this interpretation of s 3 was one which followed
by necessary
implication. For this, counsel relied on the following: the right of
access to courts guaranteed in s 34 of the Constitution;
the
provisions of the PAJA; alleged comparable legislation; and
implications for the Independent Police Investigative Directorate
Act
1 of 2011 (the IPID Act), which, it was said, go together with
constitutional norms of accountability and responsiveness. I
consider
them in turn.
Section
34 of the Constitution
[23]
Section 34 of the Constitution reads as follows:
‘
Everyone
has the right to have any dispute that can be resolved by the
application of law decided in a fair public hearing before
a court
or, where appropriate, another independent and impartial tribunal or
forum.’
[24]
It was submitted on behalf of the appellant that the limited period
within which the s 3 notice must be given, implicates the
claimant’s
right to access to courts contained in s 34 of the Constitution.
Therefore, it was argued, s 3 should be construed
so as to impose a
duty on an organ of state to make a decision whether to settle the
claim pursuant to the notice. In this way,
counsel submitted, access
to courts is facilitated, rather than hindered.
It
was furthermore contended that the right enshrined in s 34 includes
the right to have a matter where possible, resolved without
resort to
litigation.
[25]
In this regard, c
ounsel
pointed to the appellant’s personal circumstances. He is
indigent and therefore was unable to proceed with litigation,
unless
assisted pro bono. He would benefit from an early decision by the
department to settle his claim without him engaging in
costly
litigation. In these circumstances, so the submission went, absent a
duty to make a decision, the effect of s 3 would be
diluted, and the
limitation of the appellant’s right to have a dispute decided
in an open court would be unjustified. This,
it was contended,
severely limited the appellant’s right of access to courts.
[26]
There is no constitutional challenge to the validity of s 3. It must
also be borne in mind that s 3 envisages that in the event
of a claim
being repudiated, the dispute would be fully ventilated before a
court of competent jurisdiction. Against that background,
it is
difficult to understand how s 34 of the Constitution supports the
appellant’s case. If anything, s 3 preserves the
appellant’s
right to have his case adjudicated by court. It is thus difficult to
see, as contended for by the appellant,
how a litigant’s right
is frustrated thereby. As pointed out above, s 5(2) of the Act
affords the state an opportunity to
repudiate liability to a
claimant, but it certainly does not oblige it to respond during the
30 day period.
[27]
It is plain that the dispute envisaged in s 34 is one in respect of
which legal proceedings have been instituted, and is therefore
capable of resolution by the application of law in a ‘. . .
public hearing before a court.’ At the stage when a s 3
notice
is given, and until legal proceedings are instituted, there is no
adjudicable ‘dispute’. It follows that s 3
does not
implicate the right of access to courts.
The
PAJA
[28]
I turn now to deal with the appellant’s reliance on the
provisions of the PAJA. The essence of the appellant’s
case in
this regard is that s 3 compels an organ of state to make payment or
timeously repudiate liability. The appellant recognises
that the Act
does not prescribe a period within which the department must make
this decision, hence reliance on the PAJA. It was
contended that s
6(3)(
a
) of the PAJA comes into play. That section provides
that
if any person relies on the ground of
review referred to in section 6(2)(
g
)
and the relevant law (as in this case) does not prescribe a period
within which the administrator is required to take that decision,
and
the administrator has failed to take the decision it is duty bound to
take, that person may institute proceedings for review
on the ground
that there has been unreasonable delay in taking the decision.
[29]
It was submitted that since a reasonable period of time had elapsed
from the giving of the notice the appellant was entitled
to a
declaratory order. Furthermore, s 8 of the PAJA, so it was asserted,
was of assistance to the appellant. Section 8(2) provides
that a
person who relies on any ground of review
may
seek an order, among others, directing the taking of the decision.
The appellant’s case fails at the first hurdle. As
demonstrated above, neither s 3 nor s 5, or any other provision of
the
Act, compels a decision prior to the 30 day period.
[30]
In any event, the department’s failure to make a decision
pursuant to a s 3 notice, does not affect any right of the
appellant,
let alone adversely. The appellant’s right to institute legal
proceedings is fully reserved, subject only to the
limitation period
in s 5(2). As explained by Froneman J in
Hunter v Financial Sector
Conduct Authority & others
[2018] ZACC 31
;
2018 (6) SA 348
(CC);
2018 (12) BCLR 1481
(CC) para 105, a failure to investigate
does not meet the PAJA criterion. Applied to the present case, it
follows that the PAJA
is not applicable to the department’s
failure to investigate the appellant’s claim and make a
decision on whether to
accept or repudiate liability. Reliance on the
provisions of the PAJA is thus misplaced.
Alleged
comparable legislation
[31]
Principally, the appellant relied on some provisions of the Road
Accident Fund Act 56 of 1996 (RAF Act) and its regulations.
He
asserted that, because those provisions have been found to place an
obligation on the Road Accident Fund (the Fund) to investigate
claims
submitted to it and decide whether to accept or repudiate liability,
a similar finding ought to be made in respect of s
3. For this
submission, counsel for the appellant sought reliance on
Road
Accident Fund v Duma and Three Similar Cases
[2012] ZASCA 169
;
[2013] 1 All SA 543
(SCA);
2013 (6) SA 9
(SCA) (
Duma
) and
Daniels v Road Accident Fund
[2011] ZAWCHC 104
(
Daniels
).
[32]
Duma
concerned s 17(1) of the Road Accident Fund Act 56 of
1996 (the RAF Act) which limits the Road Accident Fund’s
liability
to compensate a third party for general damages for
‘serious injuries’. Road Accident Fund (RAF) regulation
3(3)(
c
) provides that a third party who wishes to claim for
general damages must submit a ‘serious injury assessment report
to the
Fund, which is ‘obliged to compensate’ such third
party if it is satisfied that the injury has been correctly assessed
as serious. Regulation 3(4) provides that if the Fund is not
satisfied that the injury has been correctly assessed, it is obliged
to reject the report and furnish the third party with reasons for the
decision. It may alternatively, direct the third party to
submit to a
further assessment.
[33]
There is a marked distinction between the RAF Act, its regulations
and the Act. There is a clear and express obligation on
the Fund to
consider the third party’s claim. That obligation is two-fold.
First, to decide whether the claimant meets the
‘serious
injury’ threshold, and second, to furnish the claimant with the
reasons for its decision to reject the claim.
There is no such
equivalent provision in the Act.
Duma
does not assist the
appellant.
[34]
In
Daniels
,
the Western Cape High Court considered the systemic failure by the
RAF to diligently investigate claims submitted to it. This
had
resulted in unnecessary litigation in respect of claims which should
have been settled. Even after summons had been issued,
the Fund,
instead of promptly settling the matters, defended them on spurious
grounds. The court noted that the prescribed claim
form required
detailed information, which if furnished, would enable the Fund to
investigate the claim and decide whether to settle
or contest it.
[35]
The court also had regard to the purpose of the RAF Act. It referred
to
Engelbrecht v Road
Accident Fund &
another
[2007] ZACC 1
;
2007 (6) SA 96
(CC);
2007
(5)
BCLR 457
(CC).
In that case, it
was
observed at para 23, with
reference to
Aetna Insurance
Co v Minister of Justice
1960 (3) SA 273
(A) at 285E-F that the stated primary concern of the
legislature in enacting the RAF Act (and its predecessors) has always
been
‘
to
give the greatest possible protection . . . to persons who have
suffered loss through a negligent or unlawful act on the part
of the
driver or owner of a motor vehicle.’
[36]
The court also pointed out that in
terms
of s 4(1)(
b
)
of the
RAF
Act,
the Fund’s powers and functions include
'the
investigation and settling’
of
claims submitted to it. It is in that context that the court in
Daniels
concluded
that the provisions of the RAF Act, which limit
common
law and constitutional rights, and
create
an obligation on the Fund to diligently investigate claims submitted
to it and to determine whether it is liable to compensate
the
claimant.
[37]
There are clear and discernable philosophical orientations between
the legislative scheme of the Fund and the Act under consideration.
Significantly, there is also a limit placed on the degree of
compensation in relation to the Fund. Moreover, their respective
stated purposes are vastly different. The RAF Act was enacted for the
benefit of claimants. On the contrary, as stated already,
the Act
under consideration was in the main, enacted for the benefit of the
organs of state, rather than the claimants.
[38]
Another important difference is that the duty of the Fund to make a
decision on a claim received by it, is expressly provided
for in s
4(1)(
b
) of the RAF Act. There is no such provision in the Act.
Third, the RAF prescribed form is elaborate, and requires detailed
and
specified information about the claim. This points to the duty on
the Fund to consider the claim and endeavour to settle it. On
the
other hand, s 3(2)(
b
) only requires the facts and particulars
of the claim to be ‘briefly set out’. It does not
prescribe the form in which
this should be done. It follows that
Daniels
is also distinguishable.
[39] In a different
context, in
Road Accident Fund Appeal Tribunal and others v Gouws
and another
[2017] ZASCA 188
;
[2018] 1 All SA 701
(SCA);
2018 (3)
SA 413
(SCA) this court considered the powers of the Road Accident
Appeal Tribunal to determine finally whether the injuries submitted
to it for assessment were caused by or arose out of the driving of a
motor vehicle. There were no express provisions in the RAF
Act or the
Regulations that conferred on the Tribunal such power. Counsel for
the Tribunal submitted that having regard to the
object of the RAF
Act, such power could be implied. Rejecting that suggestion, the
following was said at para 27:
‘
As stated
above, the general rule is that express powers are needed for the
actions and decisions of administrators. As pointed
out by Professor
Hoexter, implied powers may, however, be ancillary to the express
powers or exist either as a necessary or reasonable
consequence of
the express powers. Furthermore, the author goes on to state that ‘a
court will be more inclined to find an
implied power where the
express power is of a broad, discretionary nature – and less
inclined where it is a narrow, closely
circumscribed power’.
Where the administrative action or decision is likely to have far
reaching effects, it is less likely
that a court will in the absence
of express provisions find implied authorisation for it.’
(footnotes
omitted).
[40]
From above, it is clear that the appellant’s reliance on the
RAF Act is of no assistance to him.
IPID
implications and constitutional norms
[41]
I come now to what the appellant describes as the implications for
IPID, which includes the constitutional norms of accountability
and
responsiveness. It was contended that a failure by the department to
make a decision prior to litigation is indicative of laxity
and thus
contrary to the provisions of the IPID Act and the constitutional
norms of accountability and responsiveness. In their
heads of
argument, counsel for the appellant point to s 28(1)(
f
) of the
IPID Act, which requires that complaints of assault by police
officers to be investigated by IPID. Reliance was also placed
on ss
29 and 30 of the IPID Act.
[42]
The aim of the IPID Act is to ensure the independent oversight over
the South African Police Service (SAPS) and the various
Municipal
Police Services (MPS). It is enjoined to conduct independent and
impartial investigations of identified criminal offences
allegedly
committed by members of SAPS and MPS, and make appropriate
recommendations. The IPID Act has no connection with the Act
under
consideration, as they serve disparate purposes. I therefore fail to
see how the IPID Act is relevant to the interpretation
of s 3. The
laudable constitutional norms of accountability and responsiveness
cannot found an obligation where the Act does not
expressly provide
for it, and where such an obligation cannot be reasonably implied.
Viewed in this light, it is clear that
the IPID argument is of no
assistance to the appellant, either.
Difficulties
with the implied provision
[43]
There are two further factors militating against implying the
suggested provision into s 3. They concern first, the difficulty
of
formulating the provision and determining its scope. Second, there is
the prospect of parallel litigation. With regard
to the
formulation of the suggested implied term, I understood counsel for
the appellant to suggest, more or less, the following
implied
provision to be read into s 3:
‘
An organ of
state served with a notice referred to in s 3(1)(
a
)
must within a reasonable time of such service, either admit, reject
or endeavor to settle the claim set out in such notice.’
[44]
The immediate difficulty is what is meant by ‘a reasonable
time’? The period of 30 days in s 5(2) should be assumed
to
have been considered by the legislature as a reasonable period for an
organ of state to consider a claim. Given that, how will
this
suggested ‘reasonable period’ interface with the period
in s 5(2)? Would it not render s 5(2) nugatory?
[45]
It is also not clear what is expected of an organ of state in the
asserted ‘endeavour to settle’. Is it supposed
to make an
offer? If it does, what if the offer is not acceptable to the
claimant? Who determines whether the endeavour by an organ
of state
to settle the claim is genuine and in good faith? What happens if the
claimant perceives the organ of state’s endeavour
to be a sham,
mechanical and in bad faith?
[46]
The suggested implied provision seems to establish a parallel
litigation process. Questions concerning compensation to which
a
claimant is entitled are for the court to decide in the contemplated
litigation provided for in s 3, and are not reviewable in
terms of
the PAJA. It certainly could not have been intended by the
legislature that the giving of the notice in terms of s 3 should
result in parallel litigation. It is not in the interests of justice.
[47]
These difficulties, which are by no means far-fetched, suggest that
the proposed implied provision creates more problems than
it solves.
Apart from unduly straining the language of the Act, we would
impermissibly be usurping legislative powers, thus infringing
the
principle of separation of powers. Furthermore, one must bear in mind
the injunction in
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism & others
[2004] ZACC 15
;
2004 (4) SA 490
(CC);
2004 (7) BCLR 687
(CC) para 90 that an
interpretation that is placed upon a statute must, where possible, be
one that would advance at least an identifiable
value enshrined in
the Bill of Rights and, the statute must be reasonably capable of
such interpretation.
[48]
The appellant has not identified any constitutional value advanced by
his preferred interpretation. I have demonstrated that
the only right
said to be violated – the right of access to courts – is
not implicated at all. It is instructive that
s 3, and many other
similarly worded provisions, have been implemented for many years
without any difficulties. Had the legislature
intended for the organs
of state to have an obligation to make a decision pursuant to receipt
of s 3, it would have said so in
express terms.
Summary
[49]
Over and above all the considerations set out above, one should be
mindful that national state departments have a difficult
task in
monitoring and evaluating complaints and claims made against them.
The Act and its predecessors were designed to meet that
problem and
to afford organs of state an opportunity to gather and preserve
information and evidence. Their jurisdiction extends
over large
geographical areas and encompass many individual employees and
officials. Even when the decision is made to oppose litigation
already instituted or to repudiate liability, there is the
concomitant responsibility to gather evidence and/or prepare for
trial.
[50]
What is contended for, without express statutory underpinning, would
make the task of state departments especially onerous.
All the more
so, when the consequences of the declarator sought would, as already
stated, be to deduce a time within which, in
general terms, a
decision has to be made. In the present case, the department was
given 14 days within which to make the decision.
To accede to what
was sought by the appellant, would be to place an intolerable time
burden on the state. It would also ignore
reality. That having been
said, it would be salutary for organs of state, within means and
resources, to attempt to communicate
as early as circumstances permit
their attitude to claims by affected persons. For all these
reasons the appeal stands to
fail.
Costs
[51]
There remains the issue of costs. The court a quo dismissed the
application with costs. Counsel for both parties informed us
that
before the court a quo, there was agreement that whatever the
outcome, no order of costs should be made. It would seem then
that
the costs order was inadvertently made. That should be rectified.
With regard to costs in this court, the principle sought
to be
advanced by the appellant is of public importance, and involves the
responsibilities of an organ of state. The interpretive
issue is of
public importance, despite the dismissal of the appeal.
Biowatch
[6]
accordingly
applies.
[52]
In the result, the following order is made:
1 The appeal is dismissed with no
order as to costs.
2 The order of the court a quo is
amended to read as follows:
‘
The
application is dismissed with no order as to costs.’
___________________
T M Makgoka
Judge
of Appeal
APPEARANCES:
For
the Appellant: J H Roux SC (with him P S Van Zyl)
Instructed
by:
Kruger
& Co. Attorneys, Parow
Webbers,
Bloemfontein
For
the Respondents: K Pillay
Instructed
by:
State
Attorney, Cape Town
State
Attorney, Bloemfontein
[1]
The
notice is addressed to the National Commissioner of Police in terms
of s 4(1) of the Act, which provides that in the case
of the
Department of Police, the notice must be sent to the National
Commissioner and the Provincial Commissioner of the province
in
which the cause of action arose, as defined in
s 1
of the
South
African Police Service Act 68 of 1995
.
[2]
See
Premier,
Provinsie Mpumalanga, en 'n Ander v Groblersdalse Stadsraad
1998
(2) SA 1136
(SCA) 1141D-E;
Rand
Water Board v Rotek
Industries
(Pty) Ltd
2003
(4) SA 58
(SCA) para 26;
Coin
Security Group (Pty) Ltd v SA National Union for Security Officers &
others
[2000] ZASCA 137
;
2001 (2) SA 872
(SCA) para 9;
Port
Elizabeth Municipality v Smit
2002 (4) SA 241
(SCA) para 7;
Legal
Aid South Africa v Magidiwana & others
[2014]
ZASCA 141
;
2015 (2) SA 568
(SCA);
[2014] 4 All SA 570
(SCA) para 2.
[3]
See
further
Natal
Rugby Union v Gould
[1998] ZASCA 62
;
1999 (1) SA 432
(SCA) at 444I-J and 445A-B;
Land
and Landbouontwikkelingsbank van Suid Afrika v Conradie
2005 (4) SA 506
(SCA) para 14;
The
Merak S: Sea Melody Enterprises SA v Bulktrans (Europe) Corporation
2002 (4) SA 273
(SCA) para 4;
Van
Staden & others NNO v Pro-Wiz (Pty) Ltd
[2019] ZASCA 7
paras 4-5.
[4]
See
Minister
van Polisie en ʼn ander v Gamble en ʼn ander
1979 (4) SA 759
(A) at 770 C;
Hartman
v Minister van Polisie
1983 (2) SA 489
(A) at 497H-498C;
Minister
van Wet en Orde en ‘n ander v Hendricks
[1987] ZASCA 55
;
1987 (3) SA 657
(A) at 662E-663G.
[5]
See
Geuking
v President of the Republic of South Africa
[2002] ZACC 29
;
2003 (3) SA 34
(CC);
2004 (9) BCLR 895
(CC) para 20;
NDPP
v Mohamed
[2003] ZACC 4
;
2003
(4) SA 1
(CC);
2003 (5) BCLR 476
(CC) para 48;
Masetlha
v President of the Republic of South Africa
[2007]
ZACC 20
;
2008 (1) SA 566
(CC);
2008 (1) BCLR 1
(CC) para 192.
[6]
Biowatch
Trust v Registrar Generic Resources & others
[2009]
ZACC 14
;
2009 (6) SA 232
(CC);
2009 (10) BCLR 1014
(CC) paras 23-24.