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[1996] ZASCA 75
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Minister of Safety & Security v Molutsi and Another (366/95) [1996] ZASCA 75; 1996 (4) SA 72 (SCA); [1996] 4 All SA 535 (A); (3 June 1996)

CASE NO. 366
IN THE SUPREME COURT OF
SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
MINISTER OF SAFETY & SECURITY
Appellant
and
DOREEN DIKELEN MOLUTSI and First Respondent
PETER MCHEDI
Second Respondent
CORAM:
CORBEIT,CJ;VANHEERDEN, F H
GROSSKOPF, HARMS et MARAIS JJA
HEARD:
19 February 1996
DELIVERED
: 3 June 1996
JUDGMENT
MARAIS JA/
2
MARAIS JA:
The judgment in this matter was prepared in March. It was not
delivered then because it was thought that a pending decision of the
Constitutional Court
in the matter of
Du Plessis and Others v De Klerk
and Another
. Case No CCT 8/95 (the "
Pretoria News
" case) might
have an important bearing upon some aspects of the case, and it was
considered desirable to await delivery of the judgment in that matter.
Judgment was delivered on 15 May 1996 and cognisance of that
judgment and certain other judgments of that Court delivered on the
same day has been taken.
The first issue raised by this appeal is whether the
provisions of section 32 of the Police Act 7 of 1958 ("the Act") or
section 17 of the South African Police Service Rationalisation
3
Proclamation, R 5 of 1995 dated 27 January 1995 ("the
Proclamation"), are applicable to allegations which first respondent
sought to introduce by way of amending the particulars of claim she
had issued against appellant in an action for damages arising out of an
allegedly unlawful and fatal shooting by second respondent, a
policeman, of her husband on 7 August 1993. The action was
commenced on 21 December 1993. Appellant (the Minister of Safety
and Security) was cited as the first defendant and second respondent
(the policeman) as the second defendant. At that time section 32 (1)
of the Act was in force. It read:
"Any civil action against the State or any person in respect of
anything done in pursuance of this Act, shall be commenced
within six months after the cause of action arose, and notice in
writing of any civil action and of the cause thereof shall be
given to the defendant one month at least before the
commencement thereof."
4
First respondent alleged in the particulars of claim that she had
complied with the provisions of section 32. This is a reference to a
"notice in terms of section 32 of the Police Act No 7 of 1978" which
first respondent's attorney had sent to appellant by registered post on
17 August 1993. The cause of action pleaded was the unlawful
intentional or negligent killing of first respondent's husband by second
respondent acting within the course and scope of his employment as a policeman. In April 1994 a plea was filed in which it was denied
that second respondent had acted in the course and scope of his
employment when shooting the person whom he shot, and alleged that
he had fired the shot in self-defence. The matter was enrolled for trial
in the Witwatersrand Local Division on 22 February 1995.
On the day assigned for the trial no judge was available
and the matter stood over to 23 February 1995. First respondent took
5
the opportunity of drafting a notice of intention to amend the
particulars of claim. The amendment was to cater for the contingency
that the denial that second respondent had acted within the course and
scope of his employment when shooting the deceased might be upheld.
It was sparked by first respondent's legal representatives learning from
documents disclosed by appellant that the gun with which the deceased
had been shot while second respondent was allegedly not on duty, had
been issued to him by other functionaries in the police force, and that
he had been convicted on 23 November 1992 of assault to do grievous
bodily harm by kicking a person with his shod foot. It read:
"9A. In shooting and killing the deceased, the said member
(hereinafter referred to as the Second Defendant) used an
official firearm which had been issued to him by a
member, or members, of the South African Police Force
(whose name/s and rank/s are unknown to the Plaintiff)
6
who had given the Second Defendant the authority to
carry the said firearm on his person at all times, even
when he was not on duty.
9B. In issuing the said firearm to the Second Defendant and
in authorising him to carry the said firearm on his person
when he was not on duty, the said member or members
whose name/s and rank/s are unknown to the Plaintiff
acted wrongfully and intentionally,
alternatively
negligently, in that he/they foresaw the possibility, or
ought reasonably to have foreseen the possibility, that the
Second Defendant would use the said firearm in
circumstances similar to those in which he did.
9C. As a result of the wrongful and intentional,
alternatively
negligent, conduct referred to in paragraph 9B above, the
deceased was killed,"
On 23 February 1995 appellant filed a notice of objection to the
proposed amendment. The grounds were first, that the proposed
amendment would introduce a new cause of action without there
having been compliance with section 32 of the Act or section 17 of
the Proclamation, and secondly, that the long delay in seeking the
amendment was prejudicial to appellant. Second respondent did not
7
join in the objection. Indeed, he was no longer professionally
represented by that time, the State Attorney having withdrawn as his
attorney of record on 6 January 1995.
The reference in appellant's objection to the Proclamation
was a consequence of its promulgation on 27 January 1995 (after the
issue of summons in the matter), its repeal of the Act, and the new
provisions which it contained regarding the giving of notice of
intention to commence legal proceedings and the time within which
they had to be instituted. I shall set out those provisions of the
Proclamation which are relevant in due course. The trial did not
proceed on 23 February and first respondent's application to amend the
particulars of claim came before
Labe
J
. in April 1995, He allowed
the amendment, taking the view that it was unnecessary to decide
whether a new cause of action was being introduced because section
8
32 of the Act and not section 17 of the Proclamation governed the
case, and because the notice given by first respondent in terms of
section 32 might prove to be a sufficient compliance with that
provision even as regards the new allegations contained in the
proposed amendment.
Appellant responded by filing a special plea to paragraphs
9A to 9C of the amended particulars of claim. In essence it set up the
contention that the allegations amounted to a new cause of action, that
that cause of action arose at latest by 7 August 1993, that if it was to
be invoked and enforced by legal proceedings, the provisions of
section 32 of the Act had to be complied with, and that they were not
complied with in that first respondent failed to give notice in writing
of the new cause of action and failed within the time prescribed by
section 32 to institute proceedings in respect of it, with the
9
consequence that it became unenforceable by reason of the provisions
of that section.
First respondent countered with a replication in which she
denied that the amendments amounted to a new cause of action,
asserted that her claim was founded upon a single cause of action
which arose on 7 August 1993, and contended that section 32 of the Act was inapplicable because of its repeal by the Proclamation
and
that section 17 of the Proclamation was now applicable to the action.
She denied that section 32 precluded her from relying upon the
allegations in paragraphs 9A to 9C, basing her denial on one or more
of the following grounds:-
(1)
Section 32 of the Act is inconsistent with sections 8 and
22 of the Constitution of the
Republic
of
South Africa
,
1993, Act 22
of 1993 (the "interim Constitution") and
therefore of no force and effect.
(2)
Section 17 of the Proclamation is for the same reason of
(1)
10
no force and effect.
(3)
The interests of justice require that the requirements and
prohibitions of subsections 17 (1) and 17 (2) of the
Proclamation be dispensed with.
(4)
First respondent had complied with section 17 read with
subsections 12 (2) (d) and 12 (2) (i) of the Proclamation.
(5)
Section 32 of the Act has been repealed by subsection
12 (1) of the Proclamation and appellant is precluded
from relying upon it.
(6)
First respondent had complied with section 32 of the Act
or substantially complied with it in that its objects had
been achieved.
Those aspects of the special plea which did not bear on
the constitutionality of section 32 of the Act and section 17 of the
Proclamation were considered by the Court a quo after hearing
evidence and considering the affidavits which had been filed in the
antecedent application by first respondent to amend her pleadings. (It
had been agreed that those affidavits should be considered.) In the
result, the special plea was dismissed with costs. In reasons for
11
judgment filed subsequently it appeared that the Court a quo
concluded that paragraphs 9A to 9C of the amended particulars of
claim did amount to a new cause of action, that section 17 of the
Proclamation and not section 32 of the Act was applicable, that first
respondent could not reasonably have known of the existence of the
new cause of action until shortly before the original date for trial
(22 February 1995), that she had applied for the amendment within 12
months of that date and so complied with section 17 (1), but that she
had not complied with section 17 (2). The Court a quo concluded
further that in the exercise of the discretion conferred by section 17 (5)
compliance with that particular requirement should be dispensed with. An ensuing application by appellant for leave to appeal to this
Court
was granted.
As its name implies, the Proclamation was designed to
12
rationalise the law applicable to the South African Police Force and to
bring within its purview a number of police forces of previously independent states and self-governing territories such as
Bophuthatswana
,
Transkei
,
Ciskei
, Kwazulu, and the like. Subject to
certain transitional qualifications and the specific retention of certain
provisions in them, the respective Police Acts in all such states and
self-governing territories were repealed by section 12 (1) of the
Proclamation. So too was the Police Act 7 of 1958 of
South Africa
although certain of its provisions were specifically preserved and
continue to apply.
Section 1 of the Proclamation defined the word "Force"
as meaning (unless the context indicates otherwise) "a police force or police service established in terms of a law referred
to in Annexure A
to this Proclamation". The laws referred to in Annexure A were the
13
Police Acts of South Africa, Bophuthatswana, Transkei, Gazankulu,
Qwaqwa, Kwazulu, Ciskei, Venda, Lebowa, KwaNdebele, and
KaNgwane. "Service" was defined in section 1 as meaning (unless the
context indicated otherwise) "the South African Police Service
contemplated in section 214, read with section 236 (7) of the
Constitution". Section 12 was devoted to transitional arrangements.
I shall quote only those parts of it which are or might be thought to
be relevant.
" 12. TRANSITIONAL ARRANGEMENTS
(1)
Subject to the provisions of subsection (2), the laws
mentioned in Annexure A are repealed to the extent indicated
in the third column of that Annexure.
(2)
Notwithstanding the repeal of the laws referred to
in subsection (1), but subject to the provisions of this
Proclamation and the Constitution -
(a) any force, Reserve Police Force or any
administration, office or other institution
established by or under or functioning in
14
accordance with any such law, shall continue to so exist and function until abolished by direction of
the National Commissioner or otherwise dealt with
under this Proclamation;
(b)
(c)
(d)
Anything done, including any regulation made or
standing order issued or other administrative
measure taken, or any contract entered into or any
obligation incurred under any law mentioned in
Annexure A, which is capable of being done,
made, taken, issued, entered into or incurred under
any provision of this Proclamation shall be deemed
to have been done, made, taken, issued, entered
into or incurred, as the case may be, under such
corresponding provision until amended, abolished,
withdrawn or repealed under or by virtue of a
provision of this Proclamation;
(e)
(f)
(g)
(h) all provisions creating an offence, and providing
for penalties or any other matter in connection
therewith, in any law referred to in Annexure A
and in force immediately prior to the coming into
operation of this Proclamation, shall continue to be
in force: Provided that the aforegoing provisions
15
shall not apply where an offence is so created in
respect of another provision of such law which is
not kept in force in terms of this subsection, except
where a provision corresponding to such last-mentioned provision is contained in this
Proclamation or kept in operation in terms thereof,
in which case any reference in the provision creating the offence to such last-mentioned
provision shall be construed as a reference to such
corresponding provision;
(i) any cause of action that arose against a force
established by a law referred to in Annexure A,
before the commencement of this Proclamation,
will be actionable against the Service, subject also
to any limitations or defences that may be applicable prior to the commencement of this Proclamation: Provided that the provisions
of
section 17 shall be applicable to all such causes of
action;
(j) (i) any disciplinary action in connection with
alleged misconduct attributed to a member of
the Service, serving in a pre-rationalised
post, prior to the date of his or her appointment in a post in the fixed establishment of the Service, may be
proceeded with or instituted by a competent
member of the Service, as if such alleged
16
misconduct had been committed after such date;
(ii) appeals resulting from disciplinary action
instituted against a member of the Service
appointed in a pre-rationalised post and not
finally disposed of upon his or her
appointment in a post in a fixed establishment of the Service, shall be
disposed of by a competent member of the Service in terms of the legal provisions
applicable to members of the Service
appointed in posts in the fixed establishment
of the Service; and
(iii) where a member of the service, serving in a
pre-rationalised post, had been convicted on
a disciplinary charge and had not as yet
exercised his or her right of appeal upon his
or her appointment in a post in the fixed
establishment of the Service, such member
may, within 30 days from such appointment,
appeal against his or her conviction and/or
sentence to the competent authority in the Service, and such an appeal shall be dealt
with in accordance with the legal provisions
applicable to members of the Service,
appointed in posts in the fixed establishment
of the Service; and
17
(k) the following provisions of the Police Act, and of
any regulations, standing or other orders, and
instructions relating thereto, made or issued under
the said Act, as they existed immediately prior to
the repeal of that Act, shall, mutatis mutandis
continue to apply in the whole of the National
Territory, with respect to this Proclamation, the
President, the Minister, the National Commissioner,
the Service, of any member of the Service,
respectively, namely: sections 3 (1), (1A), (2), (3);
4 (3); 6A; 7; 8; 9; 10G; 11; 17; 18; 19; 20; 21;
22; 23; 24; 25; 26; 26A; 27; 27A; 28; 29; 30; 31;
32bis; 34; 34E and 34F.
Section 17 reads:
"17. LIMITATION OF ACTIONS, NOTIFICATION OF
ACTION AND CAUSE THEREOF, AND SERVICE OF
CERTAIN PROCESS.
(1) No legal proceedings shall be instituted against the
State or any body or person in respect of any alleged act
performed in terms of this Proclamation, or an alleged failure to
do anything which should have been done in terms of this
Proclamation, 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,
18
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 earliest date.
(2)
No such legal proceedings 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.
(3)
If any notice contemplated in subsection (1) is
given to the National Commissioner or the Provincial
Commissioner within whose province the cause of action arose,
it shall be deemed to be notification to the defendant concerned.
(4)
Any process by which any action contemplated in
subsection (1) is instituted and in which the Minister is the
defendant or respondent may be served on the National Commissioner, or Provincial Commissioner referred to in subsection (3).
(5)
Subsections (1) and (2) shall not be construed as
precluding a court of law from dispensing with the requirements
or prohibitions of those sections where the interests of justice so
require."
A preliminary question must be answered first. Do the
allegations made in paragraphs 9A to 9C of the amended particulars
of claim amount to a new cause of action? Only if they do will it be
19
necessary to consider whether section 32 applied, and if so, whether
appellant complied with its requirements. Counsel for first respondent
contended that those allegations should not be construed as a new
cause of action but merely as an amplification of the grounds upon
which the cause of action rested which first respondent had originally
invoked. In my view, that contention cannot be upheld. The original
cause of action against appellant was squarely founded upon his
vicarious liability for the allegedly deliberate or negligent unlawful
killing of the deceased by a particular policeman acting within the
course and scope of his employment as such. The allegations made
in paragraphs 9A to 9C postulate a failure to prove that appellant is
vicariously liable for
that
act of
that
policeman. The allegations in
those paragraphs found the alleged vicarious liability of appellant upon
other
actions of
other
members of the force. It now becomes actions
20
antecedent to the shooting which constitute the unlawful conduct for
which it is sought to hold appellant vicariously liable. It is true that
had the shooting not occurred no question of liability could have
arisen but that does not alter the fact that, on this hypothesis, appellant
is sought to be held vicariously liable, not for the unlawful act of the
policeman who killed the deceased, but for the allegedly unlawful acts
of those who permitted him while he was not on duty to have the gun
which he used to shoot the deceased. That is a separate and distinct
cause of action. Both causes of action entail an allegation of vicarious
liability but the source of the liability is entirely different in each case:
each flows not only from the primary liability of a different actor but
from the commission of different acts. That distinguishes the case
from a case such as
Maroka v Minister van Polisie en n Ander
1984 (2) SA 325
(W).
21
It was not entirely clear to me whether or not counsel for
first respondent contended that the interim Constitution had some
bearing on this particular problem which I regard as simply one of
classifying the allegations made by respondent in paragraph 9A to 9C
in accordance with the accumulated learning on the subject of what
constitutes a cause of action. I do not understand the interim
Constitution to outlaw the use of so indispensable an aid to the
solution of a problem such as this. What I did understand counsel for
first respondent to contend (echoing an approach adopted by the Court
a quo
), was that the interim Constitution had a special bearing upon
the interpretation of the expressions "cause of action" and "notice in
writing of any civil action and of the cause thereof" in section 32.
While conceding that in the past it had been consistently held by the
courts that the expressions "any civil action and
the cause
22
thereof and "cause of action" in section 32 are synonymous, and that
it is not a sufficient compliance with section 32 to merely describe the
happening of an incident, counsel for first respondent submitted that
section 35 of the interim Constitution necessitated a reconsideration of
the interpretation given in the past to section 32. More specifically,
it was contended that in the light of sections 8 and 22 of the interim
Constitution, an interpretation which would be more harmonious with
those provisions should be adopted. It was suggested that, as the
Court
a quo
had held, the word "cause" should be interpreted to mean
"proximate cause" so that in this particular instance it sufficed, when
giving the notice of intention to sue which section 32 requires, to give
only details of the shooting of the deceased because it was the
unlawful killing of the deceased which was the proximate cause of the
action. By parity of reasoning it was argued that the allegations made
23
in the original particulars of claim were effective harbingers of the
allegations made later in paragraphs 9A to 9C, and that first
respondent could rely upon the latter allegations even although they
were first made in the pleadings after more than six months had
elapsed since the shooting occurred, and no prior written notice of
intention to invoke those allegations in the action had been given.
I shall assume, without purporting to decide, that sec
35(3) of the interim Constitution may require a court to interpret
afresh legislation enacted before the interim Constitution was even
conceived, far less enacted, as if the interim Constitution had existed
when the legislation was passed. I shall assume too, again without purporting to decide, that a court may be required to do this even
when it is sought to apply the result of such re-interpretation to acts
or omissions which occurred or events or situations which arose or
24
existed, before the enactment of the interim Constitution. I shall
assume too that interpretations given previously by this Court to
section 32 did not bind the Court a quo and that it was open to it to
re-interpret section 32 differently by virtue of the provisions of section
35(3) of the interim Constitution. I shall make these assumptions in favour of the first respondent despite the many problems inherent
in
them and without identifying and discussing them.
That said, it remains necessary when engaged in the
process of re-interpretation not to exceed the power of interpretation
which section 35(3) confers. There are plainly limits to the power so given. Section 35(2) of the interim Constitution shows that
to be so;
it provides in terms that a law (meaning in this context a statute - the
Pretoria News
case, supra) which prima fasie exceeds Chapter 3 limits, may be construed as not exceeding such limits but only
25
"provided such a law is reasonably capable of a more restricted
interpretation". And it is obvious that it must be so unless the very real distinction between restrictive interpretation and
substantive
amendment is to be thrown entirely to the winds. Nothing in section
35(3) or in any other provision of the interim Constitution empowers
a court to assign to either a pre-constitution or post-constitution statute
a meaning which its language cannot reasonably bear or which is in
flat contradiction of the ordinary and plain meaning of the language
used in the statute. If that results in the statute clashing irreconcilably
with Chapter 3 rights and freedoms it may mean that the statute is
unconstitutional and liable to be so declared by a court having
jurisdiction to do so, but it would not entitle a court to pervert its
meaning to avoid that result by purporting to exercise the powers of
interpretation conferred by section 35(3). I find nothing in the
26
judgment of the majority (or for that matter, the minority) of the
Constitutional Court
in the
Pretoria News
case, supra, which is
inconsistent with that view of the scope of section 35.
It is here that first respondent is forestalled at the outset.
The invitation or exhortation to the Court to re-interpret section 32 is
premised upon the assumption that the language used in the section is reasonably capable of bearing the construction which first respondent
would have the Court assign to it. In my view, the assumption is not
warranted. Had the language been capable of that construction (the
"proximate cause" construction) it would have been recognised by the
courts long ere now. Far from acknowledging that the language
permits of such an interpretation, the courts have consistently and, in
my opinion, correctly, held that it does not. See for example
Grundling v Minister of Law and Order and Another
1987 (1) SA
27
627 (SE);
Ferreira and Others v Minister of Police and Others
1981 (1) SA 73
((C);
Malou and Others v Minister of Police and
Others
1981 (2) SA 544
(E);
Navo v Commissioner of Police
1989 (3) SA 456
(Ck);
Ntombela v Minister of Police
1985 (3) SA 571
(O). On any view of the matter it was therefore not open to the Court
a quo
to purport to re-interpret section 32 in the manner in which it
did. It is therefore unnecessary to consider whether or not the
interpretation hitherto accorded section 32 does indeed involve an
infraction of the principles enshrined in section 8 and 22 of Chapter
3 of the interim Constitution. That is perhaps fortunate for it obviates
my having to consider what the true import of those provisions is -
something which I might have felt obliged by section 35(3) to
undertake if the language of section 32 had been less intractable than
it is.
28
No attempt was made by counsel for first respondent to
argue that first respondent's original notice of intention to sue given on
17 August 1993 complied with the requirements of section 32 as
hitherto interpreted by the courts and it is sufficient to say that it
obviously does not. It contains no reference whatsoever to any of the
allegations which are now made in paragraphs 9A to 9C of the
amended particulars of claim. The matter must therefore be dealt with
on the footing that, if section 32 was indeed applicable, first
respondent failed to comply with it both in that she failed both to give
appellant prior notice of her intention to invoke the new cause of
action raised by the amendment and in that she failed to take
appropriate steps to commence action in respect of that cause of action
within six months of it arising.
I turn to the question of whether first respondent's new
29
cause of action is governed by section 32 or by section 17. It is
important when considering the question to recall what had already
happened in this particular matter prior to the promulgation of the
Proclamation on 27 January 1995. By that time the new cause of
action was already no longer actionable because in terms of section 32
of the Act it had ceased to be so six months after it arose on 7 August
1993. Consequently, appellant had acquired a vested right consisting
of an immunity from suit in respect of that cause of action. In my
view, neither at common law nor by virtue of any provision in the
interim Constitution or the Interpretation Act 33 of 1957 is there any
justification for interpreting the Proclamation as having stripped
appellant of a vested and accrued immunity from suit. It would be
tantamount to disinterring and resurrecting a cause of action which had been finally laid to rest by operation of law prior to the
promulgation
30
of the Proclamation. One of the main holdings in the
Pretoria News
case, supra, was that the interim Constitution cannot be invoked to
render lawful an act which occurred prior to its enactment and was
unlawful at the time when it was performed. The obverse side of the
proposition, namely, that acts lawful at the time of their execution
prior to the enactment of the interim Constitution could not be
rendered unlawful by its advent, was laid down by the Constitutional
Court in another judgment delivered on the same day, 15 May 1996.
(Key v Attorney General.
Cape of Good Hope
Provincial Division
.
Case No CCT 21/94). In yet another judgment of that Court delivered
on the same day
(Brink v Kitshoff NO.
. Case No CCT 15/95) the
Pretoria News
case, supra, was interpreted as holding "that the
Constitution would not ordinarily be construed as interfering with
rights which had vested before it came into force". It is but a short
31
step from there to the conclusion that a defendant who had an accrued
and vested defence to a claim for damages prior to the enactment of
the interim Constitution is not
directly
and retroactively deprived of
that defence simply by virtue of the enactment of the interim Constitution.
While the use of the word "all" in the proviso to
subsection 12 (2) (i) might, if viewed in isolation and after taking into
account only the use of the words "any cause of action that arose" in
the first part of the subsection, superficially suggest that section 17 is
to be applicable to literally any cause of action which arose against a
force prior to the commencement of the Proclamation, I think that
closer examination shows that that is not what was intended. The
preservation in the selfsame subsection of any pre-existing limitations
or defences is not compatible with a construction of the proviso to
32
subsection 12 (2) (i) which would deprive appellant of the immunity
from suit with which he was vested prior to the commencement of the
Proclamation. Nor is it a construction which shows any or sufficient
deference to the well-established common law presumption against
retrospective interference with accrued and vested rights. It also flies
in the face of subsections 12 (2) (a), (b) and (c) of the Interpretation
Act. The interim Constitution, far from providing any justification for
so interpreting subsection 12 (2) (i), appears to me to enjoin an
approach to the interpretation of statutes which would be mindful of
society's distaste for retroactive legislation and which would be
characterised by a reluctance to accept that accrued and vested rights
are intended to be retroactively set at nought unless the legislation in
question makes that plain. Here, to my mind, there is no such clear
indication. On the contrary, the indications appear to me to be all the
33
other way.
There is another readily understandable explanation for the
use of the word "any" in the opening words of subsection 12 (2) (i)
and the use of the word "all" in the proviso: the causes of action
which might have arisen prior to the promulgation of the Proclamation
were many and varied and they might even have lain against "foreign"
policemen and "foreign" police forces. Those police forces were to
disappear de jure if not de facto and to be subsumed in the South
African Police Service. Indeed, the states which employed them had
ceased to exist and had been re-incorporated in the
Republic
of
South
Africa
. The manifest object of section 12 was to provide would-be
claimants with a substitute police service against which they could
institute and pursue all manner of claims even although that service
did not even exist when the cause of action arose. It involved an
34
artificial assumption of liability by the new service. The use of the
words "any" and "all" is thus explicable but non constant that they are
intended to convey that even such claims as had already foundered by
reason of the prior operation of section 32 of the Act can be
successfully maintained. I think that the absurdity of the proposition
that it applies even to such claims is shown by the unacceptable
consequences of its application. It would trample underfoot eminently
sensible doctrines to which it has over the centuries been found
essential to adhere if members of society are to be adequately
protected from the potential tyranny of litigation: doctrines such as inte
rest reipublicae ut sit finis litium;res iudicata ius facit inter partes
; and res indicatas instaurari exmplo grave est. Decided
cases in which plaintiffs had failed in their claims for want of
compliance with section 32 of the Act could be re-commenced. So
35
could cases which had been withdrawn by a plaintiff with the consent
of a defendant as a consequence of the raising of a plea based upon
section 32. Documentary and even real evidence reasonably disposed
of in the justifiable belief that a threatened claim was no more would
no longer be available for use in defendant's defence. Track might
have been lost of witnesses. The potential prejudice to a defendant is
boundless; a fortiori where the basis for the alleged liability is almost
always vicarious. It is no answer to say the plaintiff may have
suffered like prejudice.
These considerations seem to me to show that the words
"all such causes of action" in the proviso to section 12 (2) (i) of the
Proclamation could not have been intended to relate to causes of
action which were no longer actionable but only to any and all surviving causes of action which were not yet time-barred. The
36
context in which they are used also shows that to be the case. They
appear in a proviso after it has been made clear in the preceding part
of the section that despite the broad sweep of the opening words of the
section ("any cause of action
will be actionable"), there will be
some such actions which will not be actionable because of the
existence of a limitation of defence which became applicable prior to
the commencement of the Proclamation. The proviso, which at first
blush might appear to make section 17 applicable to all the causes of action referred to in the opening words of the section, can
obviously
not apply to those which are not actionable for whatever reason they may not be actionable. The use of the expression "all such
causes of
action" in the proviso must therefore be taken to mean all the causes
of action referred to earlier in the section but excluding those which
were not actionable by reason of the prior existence of a limitation or
37
defence.
Unless that interpretation is given to the proviso, there
would be a contradiction between, on the one hand, that part of section
12 (2) (i) which preserves
any
(my emphasis) pre-existing limitations
and defences and, on the other, the proviso. The accrued and vested
defence to the action would be available in terms of the first part of
section 12 (2) (i) but unavailable in terms of the proviso. That self-
contradiction is avoided if the proviso is restricted to cases in which
the defence provided by section 32 had not yet come into existence so
that the defendant was not vested with the right to raise it if and when
sued.
That conclusion is reinforced when one searches the Act for the "limitations or defences" which could have been contemplated
by section 12 (2) (i) and one finds virtually nothing except the
38
limitation or defence provided by section 32. Counsel for first
respondent was hard pressed to point to any other limitations or
defences in the Act to which section 12 (2) (i) might apply. He
suggested that sections 12 (3), 17B, 18, 20, 21, 31, 32 bis and 35 were
examples. That cannot be so. Sections 20, 21, 31 and 32 bis of the
Act were not repealed. They were specifically and separately kept in
operation by section 12 (2) (k) of the Proclamation. They could
therefore not have been the limitations or defences contemplated in
section 12 (2) (i). As for sections 12 (3), 17B and 35, whatever else
they may be, they are not limitations or defences which could be
invoked in a "cause of action that arose against a force" within the
meaning of section 12 (2) (i). Section 12 (3) has to do with domestic
disciplinary proceedings and precludes the taking of certain specified
disciplinary steps against a member of the Force if he did not have
39
legal representation at his trial or was not afforded the opportunity to
be represented and assisted by a defence officer. Section 17B provides
for summary dismissal of a member of the Force who strikes or
conspires to strike; it creates no special defences and imposes no
limitations. It too has no relevance to the "causes of action that arose
against a force" contemplated by section 12 (2) (i). Section 35 deals
with political activities of members of the Force and the remarks made
about section 17B are equally applicable.
It is hardly likely that it was common law defences which
were contemplated. Those would obviously remain applicable as the
repeal of the Act by the Proclamation has no bearing upon them and
it was quite unnecessary to cater for their preservation in the
Proclamation. Limitations and defences provided solely by the Act
were another matter. The Act was to be abolished (save for certain
40
excepted provisions). There would no longer be a section 32. How
might that impact upon causes of action against a force which arose
before its repeal? No particular problem was presented by cases in
which such causes of action had already become time-barred. An
amending statute (indeed any statute) is ordinarily taken to be
concerned with the present and the future but not the past. It may of course be intended to apply to concluded matters but that is
regarded
as so contrary to accepted norms that any intention to do so will have
to be expressed in terms that are clear. Nothing is said in the
Proclamation which shows unequivocally that the proviso to section
12 (2) (i) is intended to apply even to cases in which section 32 had
already operated to bar an action prior to its repeal.
Lest it be thought that it has been overlooked, something
must be said about the distinction which is often drawn when
41
interpreting statutes between those which are classified as "procedural"
and those which are not. The former are regarded prima facie as
being applicable even to situations which arose before their enactment
whereas the latter are not so regarded prima facie. The imprecision
of the dichotomy and the sometimes elusive nature of the distinction
has been frequently remarked upon. I do not find it necessary to
review the debate. It is sufficient to say that while there can be no
vested right in purely procedural provisions, it is now well recognised
that even although a statute may have procedural dimensions, if it
adversely affects vested rights which are not purely procedural, it will
be construed as pro tanto prospective. See
Yew Bon Tew v
Kenderaan Bas Mara
[1982] 3 All ER 833
(PC) at 836b;
Euromarine International of Mauren v The Ship Berg and Others
1986 (2) SA 700
(A) at 709-710;
Transnet Ltd v Ngcezula
1995 (3)
42
SA 538
(A) at 545D-552H. As it was pithily put by
Sloan JA
in the
Australian case of
Dixie
v Roval Columbian Hospital
(1941) 2
D.L.R. 138
at 139-40 "unless the language used plainly manifests in
express terms or by clear implication a contrary intention - (a) A
statute divesting vested rights is to be construed as prospective. (b) A
statute, merely procedural, is to be construed as retrospective. (c) A
statute which, while procedural in its character, affects vested rights
adversely is to be construed as prospective". Thus, even if section 32
of the Act and section 17 of the Proclamation are properly classifiable
as procedural in character, the fact remains that section 32 provided
appellant with a substantive and absolute defence to respondent's claim
and the proviso to section 12 (2) (i) and section 17 should therefore not be construed as having been intended to deprive appellant
of that
defence ex post facto. I may add that it appears to me to be inaccurate
43
to describe as purely procedural a provision which prohibits absolutely
the invocation of
any
procedure by which litigation may be
commenced to enforce a cause of action merely because a procedure
was prescribed which, if followed, would have avoided that result. It
is of the essence of procedural law that there be subject matter to
which the procedure can be applied. Once section 32 has operated
adversely to a prospective claimant there is, for all practical purposes
and whatever theoretical right may yet exist in vacuo, no actionable
cause of action to which procedural laws can apply. It is thus not, in
my view, a true example of a purely procedural law.
The next class of case (at the opposite end of the pole)
might be one in which the action was not yet time-barred by section
32 but nothing had yet been done by the prospective plaintiff to alert
the defendant to his intention to institute action. That class of case is
44
plainly governed by the proviso for a number of reasons. First, any
such cause of action would still be actionable so that the basic premise
of statutory interpretation, namely, that unless plainly otherwise
provided, the legislature legislates for that which is happening or may
happen in future, and not for that which has already happened, is
accorded due recognition. Secondly, no arbitrary retroactive
deprivation of vested rights is involved because no such right could
exist until section 32 had actually taken its toll. Until that happened
a defendant had at best a spes that he might acquire such a defence.
Thirdly, the words "any cause of action that arose
before the
commencement of the Proclamation" and "all" in section 12 (2) (i)
must obviously relate to at least one identifiable category of such
causes of action and this is the category which falls most readily
within its purview without any concomitant violation of the principles
45
reflected in the two important canons of construction just mentioned.
Between these two poles are variants which may or may
not be governed by section 17 read with section 12 (2) (i). Some
examples (all postulate a cause of action which arose prior to the
commencement of the Proclamation):
(1)
Notice properly given and summons issued in compliance
with section 32 of the Act prior to commencement of the
Proclamation;
(2)
Notice properly given in terms of section 32, time which
must elapse before summons may be issued expired but
summons not yet issued; time to do so still available in
terms of section 32 when the Proclamation came into
operation;
(3)
As in (2) but time which must elapse before summons
may be issued not yet expired when the Proclamation
came into operation.
It would serve no sensible purpose to subject case (1) to
the regime of section 17 (2) (i). Such a plaintiff has no need of the
amelioration of section 32 of the Act provided by section 12 (2) (i)
46
read with section 17 (1) of the Proclamation. He or she has already
been able to comply with section 32 and has done so. Nor would the
defendant's position be affected. The whole object of section 32 was
to ensure both that the defendant received timely warning of a
plaintiffs intention to commence legal proceedings and that such
proceedings were commenced within six months of the date upon
which the cause of action arose. Those objects have been achieved.
Indeed, the provisions of section 12 (2) (d) show clearly that section
17 does not apply to such a case in the sense that actual compliance
with its provisions after the date of its commencement is required. It
provides for a
deemed
compliance with section 17. To me, that
reflects exactly what one would ordinarily expect: a recognition that
if section 32 had already played its role the result should stand
notwithstanding its repeal and the substitution of a new provision with
47
which the plaintiff might also be able to comply. It would have been
rankly discriminatory to give a plaintiff the benefit of action taken in
terms of section 32 but to deny a defendant the benefit of a defence
which arose because of a plaintiffs failure to take the action required
by section 32. Hence the specific preservation of pre-existing
limitations and defences.
Case (2) is similar to case (1) in one respect and different
in another. It is similar in that the notice is deemed to have been
given in compliance with section 17; it differs in that the actual
commencement of legal action cannot be governed by section 32 for
it no longer exists and legal action was not commenced while it did
exist. It seems to follow that it can be governed only by section 17
in which event both the commencing date and the terminal date of the
permitted period within which action may be instituted will have to be
48
determined in accordance with its provisions and not in accordance
with those of section 32 of the Act. It will therefore not matter
whether summons is issued before or after the expiry of the six month
period for which section 32 provided as long as summons is issued
within the twelve month period for which section 17 provides
(calculated from the date upon which the claimant became aware, or
might reasonably have been expected to have become aware, of the
relevant act or omission). Here then is another instance of a cause of
action which arose before the coming into operation of the
Proclamation to which section 17 can be applied without prejudicing
a defendant's vested rights.
Case (3) is, I think, no different in principle from Case (2)
and again it is an example of a case to which section 17 can be
applied without there being any interference with vested rights. There
49
are no doubt yet further variations of the theme imaginable but these
suffice to show that there remains a legitimate field of application for
the proviso to section 12 (2) (i) and that one does not render it
nugatory by excluding from its field of application cases in which
section 32 had already either been complied with or not complied with (with fatal effect) by the time the Proclamation came into operation.
Much of counsel for first respondent's largely rhetorical
appeal to section 35 (3) of the Constitution and various dicta in
decisions of the Constitutional Court was predicated upon the assertion
that section 32 was a relic of the "oppressive past" which the
Proclamation was designed to destroy because of its incompatibility
with the ideals enshrined in the Constitution, and that that provided further justification for assigning to the Proclamation a retroactive
effect so extensive that even jural relations already forged on the anvil
50
of section 32 could be unilaterally consigned by a claimant to the
furnace for reshaping on the anvil of section 17. The assumption
lurking in this kind of argumentation is that all or most claims against
the police are meritorious and that it is really of little moment whether
they be instituted sooner rather than later or whether any prior notice
of intention to sue is given or not: any legislation limiting a claimant's
freedom of action in suing the police is therefore oppressive and calls
either for outright nullification by a court with jurisdiction to do so, or
the strictest possible interpretation in favorem a claimant which the
language will bear by a court which has no jurisdiction to nullify the
legislation. That approach ignores the mischief which such legislation
is designed to prevent and which has been spelt out on a number of occasions. That mischief is first, the disability under which both
policemen and their employer, the State, are likely to labour in
51
responding appropriately to claims made against them when the
passing of time may have hampered investigation of the claims and
handicapped the police in their defence of the claims, and secondly,
the precipitate institution of action by a claimant without the State
having been given any prior opportunity to examine the claim,
investigate it, take legal advice, consider questions of policy which
may arise, and gather such evidence as may exist. Those difficulties
are obviously not peculiar to the police; they may be present in the
case of other defendants but the difference lies in the size of the police
force, the nature of its functions and duties and the potential
answerability of the State for the conduct of many thousands of
policemen. See
Hartman v Minister van Polisie
1983 (?) 489 (A)
at
497 F 498
F;
Labuschagne v Labuschagne
:
Labuschagne v
Minister van Justisie
1967 (2) SA 575
(A) at 587 G - 588 A. That
52
does not mean of course that a highly technical and demanding
approach is appropriate when considering whether a claimant has
fulfilled the requirements of section 32 (1) relating to the giving of
notice. As was said in
Minister van Wet en Orde en 'n Ander v Hendricks
[1987] ZASCA 55
;
1987 (3) SA 657
(A) at 663 D-E, the approach of the
Courts should be to interpret the provision (to the extent of course that
its language reasonably allows) in a manner which affords the police
the protection which the provision is intended to give them without
placing an unnecessarily heavy burden upon a claimant.
It is certainly so that circumstances could and did arise in
which section 32 operated harshly upon a claimant. It is no less
certain that that was the very mischief to which an end was intended
to be put by its repeal and the substitution for it of section 17.
However, what is equally plain is that the principle of conferring
53
special protection upon the police in the sphere of litigation was not regarded as inherently pernicious for it was perpetuated in
section 17
of the Proclamation albeit in a benign form designed to eradicate the
harsher aspects of section 32. It does not follow however that the
mere identification of the mischief to which the Proclamation was
intended to put an end entitles one to give so extensive a retroactive effect to section 17 of the Proclamation that vested rights,
including
even those which have been acknowledged in prior litigation by the
upholding of special pleas of non-compliance with section 32, are set
at nought. In
Bell
v Voorsitter van die Rasklassifikasieraad
1968
(2) SA 678
(A) the mischief which the amending legislation was
designed to end was plain enough: it was to abolish appeals by third
parties. Yet despite a deeming provision which showed that the
amendment was intended to have retroactive effect, this Court held
54
that it could not be interpreted as being applicable to pending appeals.
That illustrates tellingly the understandable reluctance of courts to
conclude that legislation is intended to destroy rights which have
already vested, and a fortiori those which have already been exercised
or invoked, unless that intention is so plainly expressed that there is
no room for doubt.
Counsel for first respondent ultimately wavered somewhat
when faced with the implications of his principal submission that
section 12 (2) (i) should be interpreted so widely that all pre-existing
causes of action were to be governed by section 17 including even those which had already been successfully met with a plea of noncompliance
with section 32. He suggested that one could limit the
language to exclude such cases. To my mind that demonstrates the
untenability of the interpretation for which first respondent contends.
55
Once it is recognised that section 12 (2) (i) does not require section 17
to be applied to all pre-existing causes of action, it becomes necessary
to decide where the dividing line is to be drawn between those pre-
existing causes of action to which it does apply and those to which it
does not. In the absence of any clear indication from the lawgiver that
it is to apply even to cases in which section 32 had already provided
a defendant with a defence, both the common law presumption against
the retroactive deprivation of vested rights and the statutory injunction
in the Interpretation Act to the same effect impel the conclusion that
section 17 is not intended to apply to such cases.
A fortiori
must that
be the conclusion when one takes into account the preservation of pre-
existing defences and limitations to be found in section 12 (2) (i)
itself.
There is yet another consideration which militates against
56
the construction for which first respondent contends. While section 17
is of application to both the particular policeman and the State, section
12 (2) (i) is confined to causes of action which arose against a force;
it is silent as regards causes of action which arose against the
particular policeman. If section 17 is held to be applicable to the case
against the State but not to the case against the policeman, one could
be faced with the absurdity of a policeman directly responsible for the
commission of a delict being entitled to an immunity from action
derived from the operation of section 32, but the State whose liability
(if it exists) is only vicarious (as in this case), being exposed to action.
The repercussions of such a state of affairs upon the right of recourse
of the State is also disturbing. If it is maintainable against the
policeman, he will be called upon to defend, if he can, an action which
the claimant lost the right to bring against him. If it is not
57
maintainable, the State may have been deprived not only of a defence
to the claimant's claim, but also of its right of recourse against the policeman directly responsible for the commission of the delict.
These
manifestly unsatisfactory results cannot arise if the interpretation for
which appellant contends is adopted.
No serious attempt was made to argue that, if section 32
was applicable and the allegations in paragraphs 9A to 9C of the
amended particulars of claim did amount to a new cause of action, it was impossible for first respondent to have obtained the information
upon which the allegations are based prior to the date upon which her
legal representatives did obtain it. The maxim lex non cogit ad impossibilia
can therefore not be called in aid by Erst respondent.
In my view the appeal should succeed. It is upheld with
costs as against first respondent, including the costs of two counsel.
58
The order of the Court
a quo
is set aside and there is substituted for
it the following order: The alternative cause of action set forth in
paragraphs 9A to 9C of the amended particulars of claim is dismissed
with costs, including the costs of two counsel.
R M MARAIS
JUDGE OF APPEAL
CASE NO 366/95
IN THE SUPREME COURT OF
SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
MINISTER OF SAFETY & SECURITY
Appellant
and
DOREEN DIKELEN MOLUTSI and
First Respondent
PETER MCHEDI
Second Respondent
CORAM:
CORBETT CJ, VAN HEERDEN, F H GROSSKOPF,
HARMS et MARAIS, JJA
HEARD:
19 FEBRUARY 1996
DELIVERED: 3 JUNE 1996
JUDGMENT
HARMS JA/
CASE NO 366/95
IN THE SUPREME COURT OF
SOUTH AFRICA
(APPELLATE DIVISION)
In the matter between:
MINISTER OF SAFETY & SECURITY
Appellant
and
DOREEN DIKELEN MOLUTSI and
First Respondent
PETER MCHEDI
Second Respondent
CORAM:
CORBETT CJ, VAN HEERDEN, F H GROSSKOPF,
HARMS et MARAIS, JJA
HEARD:
19 FEBRUARY 1996
DELIVERED:
JUDGMENT
HARMS JA/
2
HARMS JA:
I have carefully considered the comprehensive
judgment of Marais JA and I agree that the appeal should succeed and that an order as formulated by him should be
issued. Having said that, I have some reservations about the
advisability of expressing views on the constitutional
matters raised in his judgment. In my respectful view, the
result of his judgment can be achieved without raising or
deciding those issues.
As stated in his judgment, the appellant relied in
his special plea to the "new" cause of action on the
provisions of s 32 of the Police Act 7 of 1958. The validity
of that plea falls to be decided with reference to the
allegations in the replication. The six of them have been
set out in Marais JA's judgment.
The constitutionality of s 32 and of s 17 of the
Proclamation was not decided by Levin AJ and there was no
appeal (nor could there have been any) on the issue to this
3
Court in terms of s 102(4) of the interim Constitution.
There was, also, no request for a referral of it to the
Constitutional Court
—
assuming that we have, in the
circumstances, the jurisdiction to do so (something I doubt
because s 102(6) admits referral only if the matter is before
us because of an appeal in terms of s 102(4)). In any event,
in the light of the fact that the cause of action arose
before
the effective date of the interim Constitution, the
constitutionality of s 32 cannot arise in this case (see the
Pretoria News case). Because of the finding (to which I
shall return) that the provisions of the Proclamation do not
govern this case, its constitutionality, likewise, does not
arise.
I agree with Marais JA, for the reasons stated by
him, that the alternative claim set out in par 9A to 9C
amounted to a new cause of action. That finding raises the
question whether the first respondent had complied, fully or
substantially, with the provisions of s 32 of the Act. Her
4
counsel conceded that there had not been compliance with
these provisions according to the "traditional"
interpretation by this Court. In this regard the novel
interpretation of s 32 by Levin AJ was espoused. According
to him, the section should be reinterpreted in the light of
the interim Constitution to provide that the action "shall
be commenced within six months after the cause of action
arose, and notice in writing of any civil action and the
proximate
cause [in this case the shooting] thereof shall be
given to the defendant one month at least before the
commencement thereof".
Whether the meaning of the section could have
changed as a result of the interim Constitution, need not be
decided. Assuming that it could, Levin AJ was concerned with
its meaning before its date (27 April 1994), more
particularly, on the date of the delict (7 August 1993) or
on the last day for notice (5 months later). He was bound
by decisions of this Court in that regard, specifically, that
5
"cause" meant "cause of action" and not "proximate cause".
Since it was not suggested that those decisions were wrong,
that puts an end to the debate.
That leaves for consideration the question whether
first respondent's "new" claim was resurrected and is
governed by s 17 of the Proclamation. On this point I once
again, wish to refrain from a constitutional debate and prefer to subscribe to the reasoning of the learned Chief
Justice.
L T C HARMS
JUDGE OF APPEAL
VAN HEERDEN JA )
CONCUR
F H GROSSKOPF JA )
Case No 366/95
IN THE SUPREME COURT OF
SOUTH AFRICA
(APPELLATE DIVISIONS
In the appeal between:
THE MINISTER OF SAFETY AND SECURITY
. . Appellant
and
DOREEN DIKELEN MOLUTSI
1st Respondent
PETER MCHEDI
2nd Respondent
CORAM
Corbett CJ, Van Heerden, F H Grosskopf, Harms et
Marais JJA
DATE OF HEARING
: 19 February 1996
DATE OF JUDGMENT
: 3 June 1996
JUDGMENT
/
CORBETT CJ
:
2
CORBETT CJ
:
Dubitande and with some reluctance I concur in the order
proposed by my Brother Marais. I agree with my Brother's
conclusion that the allegations made in paragraphs 9A to 9C of the
amended particulars of claim amount to a new cause of action. I also
agree for the reasons stated by Marais JA that the matter must be dealt
with on the footing that, if sec 32 of the Police Act 7 of 1958 as
amended ("the Police Act") applies to this new cause of action, the
first respondent failed to comply with either the duty to give notice in
writing or the duty to commence action within six months. My hesitations concern the applicability of sec 32.
For convenience I repeat the wording of sec 32(1):
"Any civil action against the State or any person
in respect of anything done in pursuance of this
Act, shall be commenced within six months after
the cause of action arose, and notice in writing of
any civil action and of the cause thereof shall be
3
given to the defendant one month at least before
the commencement thereof."
It is not disputed that the section, in so far as it relates to a six month
period within which action must be commenced, provides for an
expiry period ("vervaltermyn"), and not a prescriptive period; and
generally that a plaintiff who has failed to comply with this provision
is debarred from suing and cannot rely upon any of the grounds which
delay the commencement of the running of prescription or its
completion (see
Hartman v Minister van Polisie
1983 (2) SA 489
(A),
499 C-H; cf
Pizani v Minister of Defence
1987 (4) SA 592
(A), 602
C-F). Hitherto the only exception allowed is where compliance with
sec 32 was at the relevant time impossible: lex non cogit ad imposibilia (
see
Montsisi v Minister van Polisie
1984 (1) SA 619
(A) ). It may be taken that in the absence of impossibility failure to
comply with sec 32 results in effect in the extinguishment of the
plaintiffs cause of action ( see
Montsisi
's case, supra, at 637 F - 638
4
A).
Proclamation No R5, 1995 relating to the Rationalisation
of the South African Police Service ("the Proclamation") was made
and promulgated in terms of sec 237 (3) of the Constitution of the
Republic of South Africa Act 200 of 1993 ("the Constitution"). As
its name indicates, the purpose of this Proclamation is to rationalise
the Police Service in order to achieve the aims of establishing an
effective administration as described in sec 237 (1) of the Constitution.
The President is empowered by sec 237(3) to do this by proclamation
in the Gazette. The Proclamation was promulgated on 27 January
1995.
The Proclamation repeals practically the whole of the Police Act, including sec 32 thereof. The corresponding provision
relating to the limitation of actions in the Proclamation is sec 17
thereof, the relevant portions of which read as follows:
5
"(1) No legal proceedings shall be instituted against
the State or any body or person in respect of any alleged
act performed in terms of this Proclamation, or an alleged
failure to do anything which should have been done in
terms of this Proclamation, 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 earliest date.
(2) No such legal proceedings 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.
(5) Subsections (1) and (2) shall not be construed as
precluding a court of law from dispensing with the
requirements or prohibitions of those sections where the
interests of justice so require."
Although sec 17 of the Proclamation has the same general
purpose as sec 32 of the Police Act had, there are certain important
6
differences between the two enactments. Firstly, the expiry period
has been extended from six months to twelve calendar months.
Secondly, whereas under sec 32 the expiry period commenced to run
as from the date when the cause of action arose, under sec 17 this
period commences as from the date upon which the claimant became
aware of the act or omission constituting his cause of action or as
from the date when the claimant might be reasonably expected to have
become aware of the act or omission, whichever is the "earliest" (sic)
date. This change means that sec 17 is more or less in line with sec
12(3)
of the
Prescription Act 68 of 1969
. And, thirdly, whereas
under
sec 32
the Court had no power to dispense with the
requirements of the section, under
sec 17(5)
there is provision for such
a dispensing power, to be exercised where the interests of justice so
require. There is no doubt that
sec 32
was a somewhat Draconian
measure in that a claimant who was unaware that he had a cause of
action when it arose or who failed for reasons falling short of
impossibility to prosecute his claim within the time limits laid down
received no special consideration or redress.
Sec 17
was obviously
introduced in order to ameliorate the position (cf
Pizani
's case, supra,
7
at 602 D - H).
The problem in the present case arises from one of the
transitional provisions in the Proclamation, viz
sec 12
(2) (i), which
reads:
"Notwithstanding the repeal of the laws referred to in
subsection (1), but subject to the provisions of this
Proclamation and the Constitution -
(i) any cause of action that arose against a force
established by a law referred to in Annexure A,
before the commencement of this Proclamation,
will be actionable against the Service, subject also
to any limitations or defences that may be applicable prior to the commencement of this
Proclamation: Provided that the provisions of sec
17 shall be applicable to all such causes of action/'
(The laws referred to in subsection (1) include the Police Act.)
Sec 12(2)(i) is retrospective in the sense that it applies the
provisions of sec 17 to causes of action which arose prior to the
commencement of the Proclamation. The proviso, which makes sec
17 applicable, speaks of "all such causes of action". This refers back
8
to the opening words of para (i), "any cause of action". "Any" is an
all-embracing term.
"In its natural and ordinary sense 'any' - unless restricted by the context - is an indefinite term
which includes all of the things to which it relates."
(Pre Innes JA in
Hayne & Co v Kaffrarian Steam
Mill Co Ltd
1914 AD 363
, at 371.)
The critical question in this case is whether "any cause of action" in
the opening part of para (i) should be given an all-inclusive or a
restricted meaning. Should the term be interpreted to comprehend
cases where prior to the commencement of the Proclamation the
claimant in respect of a cause of action which arose against the Police
Force had not complied with the requirements of sec 32 and as at the
commencement of the Proclamation time had run out; or should it be
read to restrict its provisions to such cases where as at the
commencement of the Proclamation time had not yet run out? (For
convenience I shall refer to these respectively as "the extensive
interpretation" and "the restricted interpretation".)
I have found this a very difficult question and I have, with
respect to my Brother Marais, not derived much assistance from the
9
fact that prior to the commencement of the Proclamation claims might have lain against foreign policemen and foreign police forces.
While
no doubt such claims would be comprehended by the words "any
cause of action", this phrase remains one of wide import. ' Nor do I
think that the extensive interpretation would necessarily result in the
possibility of decided cases being reopened and of boundless liability
and prejudice to the defendant Police Force. What does, however,
seem to me to be of cardinal importance is the effect which the
extensive interpretation would have on vested rights or immunities.
In
Bellairs v Hodnett and Another
1978 (1) SA 1109
(A)
this Court held as follows (at 1148 F-G):
"There is a general presumption against a statute being construed as having retroactive effect and even where a
statutory provision is expressly stated to be retrospective
in its operation it is an accepted rule that, in the absence
of contrary intention appearing from the statute, it is not
treated as affecting completed transactions and matters
which are the subject of pending litigation (Bell v. Voorsitter
van die Rasklassifikasieraad en Andere,
1968
(2) S.A. 678
(A.D.); Pinkey v Race Classification Board
and Another,
1968 (4) S.A. 628
(A.D.); Steyn, Uitleg
10
van Wette, 4th ed., pp. 86-92)."
In similar vein is this dictum from
National Iranian Tanker Co v MV
Pericles GC
1995(1) SA 475 (A), at 483 H-I.
"There is at common law a prima facie rule of
construction that a statute (including a particular provision
in a statute) should not be interpreted as having
retrospective effect unless there is an express provision to
that effect or that result is unavoidable on the language
used. A statute is retrospective in its effect if it takes
away or impairs a vested right acquired under existing laws or creates a new obligation or imposes a new duty
or attaches a new disability in regard to events already
past."
Reference may also be made to sec 12(2) of the Interpretation Act 33
of 1957 which provides that, where a law repeals any other law, then,
unless the contrary intention appears, the repeal shall not, infer alia,
revive anything not in force or existing at the time at which the repeal
takes effect or affect the previous operation of any law so repealed or
affect any right or privilege acquired under any law so repealed.
In the present case the new cause of action arose on 7
11
August 1993, but application to amend the particulars of claim in order to incorporate this new cause of action was made only on 22
February 1995. Clearly the requirements of sec 32 were not complied
with and by February 1994, approximately a year before the
promulgation of the Proclamation, the appellant had acquired a vested
right not to be sued in respect of this new cause of action. Sec 32 had come into operation and first respondent's claim based upon
the
new cause of action had been extinguished. In the light of the
authorities on retrospectivity to which I have alluded there is no doubt
that in this type of case a strong argument can be advanced in favour
of a restricted interpretation of sec 12(2)(i) of the Proclamation.
Moreover, there is much to be said for the view that when sec 12(2)(i)
of the Proclamation speaks of "any cause of action" it means a cause
of action which is still, at the commencement of the Proclamation,
extant and does not include one which in effect has ceased to exist by
reason of the provisions of sec 32.
On the other hand, I am very conscious of the clearly
expressed intention of the legislator to ameliorate the harshness of sec
32 and to make such amelioration not purely prospective. I am also
12
struck by the incongruity of reaching an interpretation of sec 12(2)(i)
which will mean that a claimant whose cause of action arose 5 months
and 29 days before the commencement of the Proclamation and had
not done anything about sec 32 would in terms of sec 12(2)(i), read
with sec 17, have a further six months within which to give notice and
to institute proceedings, whereas a claimant who had also failed to
comply with sec 32, but whose cause of action had arisen 6 months
before the commencement of the Proclamation, would be forever time-
barred.
Having given the matter anxious consideration, I have
come to the conclusion that there is insufficient indication of a
legislative intent to warrant interference with the vested right of the
defendant Police Force in whose favour the expiry term provided by
sec 32 has run its course. I, therefore, opt for the restricted
interpretation of sec 12(2)(i) of the Proclamation It follows that the
appeal must succeed and that an order in the form formulated by my
Brother Marais should be made.
M M CORBETT