Mabaso v National Commissioner of Police and Another

• Jurisdiction: South Africa
• Citation: 2020 (2) SA 375 (SCA)

Mabaso v National Commissioner of Police and Another
2020 (2) SA 375 (SCA)

2020 (2) SA p375

Citation	2020 (2) SA 375 (SCA)
Case No	1222/2017; [2019] ZASCA 43
Court	Supreme Court of Appeal
Judge	Navsa AP, Van Der Merwe JA, Makgoka JA, Mokgohloa AJA and Eksteen AJA
Heard	March 29, 2019
Judgment	March 29, 2019
Counsel	JH Roux SC (with PS van Zyl) for the appellant.; K Pillay for the respondents.

Flynote : Sleutelwoorde

State — Actions by and against — Actions against — Notice — Whether duty on organ of state receiving notice to make decision to accept, reject or settle claim prior to commencement of litigation — Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, s 3.

Headnote : Kopnota

On 10 June 2015 Mr Mabaso duly gave notice of his intention to institute action against an organ of state, as required by s 3 of the Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002 (the Act). When no reply was forthcoming, Mr Mabaso sent a letter dated 13 July 2015 to the National Commissioner of Police in which he demanded of the Commissioner to take a decision within 14 days as to whether liability was admitted, failing which he indicated that an application would be brought to 'enforce our right to a decision from you'.

Not having received any response, Mr Mabaso launched an application (during December 2015) for the following relief: a declarator that the respondents, the National Commissioner of Police and the Minister of Police, were obliged to take a decision to accept, reject or settle the claim (based on the constitutional right of access to courts); a concomitant order in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) for the review and setting-aside of the respondents' 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'.

The High Court dismissed the application, reasoning 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. In Mr Mabaso's appeal to the Supreme Court of Appeal —

Held

The underlying purpose for the giving of notice in terms of s 3 of the Act was one of convenience: 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 (see [15]). There was no express provision in s 3 placing an obligation on an organ of state to make a decision concerning the contemplated legal proceedings prior to it being instituted; such an obligation could only be found by reading the provision into the section by implication (see [21]).

A dispute envisaged in s 34 was one in respect of which legal proceedings had been instituted, and was therefore capable of resolution by the application of law in a 'public hearing before a court'. At the stage when a s 3 notice was given, and until legal proceedings were instituted, there was no adjudicable 'dispute'. It followed that s 3 did not implicate the right of access to courts. (See [23] – [27].)

2020 (2) SA p376

The department's failure to make a decision pursuant to a s 3 notice did not affect any right of the appellant, let alone adversely. The appellant's right to institute legal proceedings was fully reserved, subject only to the limitation period in s 5(2). Reliance on the provisions of PAJA was thus misplaced; it was not applicable. (See [28] – [30].)

Also of no assistance to appellant was his reliance on the allegedly comparable Road Accident Fund Act 56 of 1996. There was a marked distinction between that Act and its regulations and s 3; they had discernible philosophical orientations and there were other important differences between them. (See [31] – [40].)

As for the appellant's reliance on the Independent Police Investigative Directorate Act 1 of 2011 (IPID Act) and the constitutional norms of accountability and responsiveness, the IPID Act had no connection with the Act; they served disparate purposes and therefore the IPID Act was not relevant to the interpretation of s 3. And the laudable constitutional norms of accountability and responsiveness also could not found an obligation where the Act did not expressly provide for it, and where such an obligation could not be reasonably implied. (See [41] – [42].)

Two further factors militated against implying the suggested provision in s 3: firstly, the difficulty of formulating the provision and determining its scope; and second, the prospect of parallel litigation. 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. (See [43] – [48].)

The consequences of the declarator sought would be to deduce a time within which, in general terms, a decision had to be made. To accede to what was sought by the appellant would be to place an intolerable time burden on the state, and would also ignore reality. For all these reasons the appeal would fail (see [50]).

Cases cited

Aetna Insurance Co v Minister of Justice 1960 (3) SA 273 (A): referred to

Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs and Tourism and Others 2004 (4) SA 490 (CC) (2004 (7) BCLR 687; [2004] ZACC 15): dictum in para [90] applied

Bernstein and Others v Bester and Others NNO 1996 (2) SA 751 (CC) (1996 (4) BCLR 449; [1996] ZACC 2): dictum in para [105] applied

Biowatch Trust v Registrar, Genetic Resources, and Others 2009 (6) SA 232 (CC) (2009 (10) BCLR 1014; [2009] ZACC 14): applied

Coin Security Group (Pty) Ltd v SA National Union for Security Officers and Others 2001 (2) SA 872 (SCA) ([2000] ZASCA 48): referred to

Daniels v Road Accident Fund [2011] ZAWCHC 104: distinguished

Engelbrecht v Road Accident Fund and Another 2007 (6) SA 96 (CC) (2007 (5) BCLR 457; [2007] ZACC 1): distinguished

Ferreira v Levin NO and Others; Vryenhoek and Others v Powell NO and Others 1996 (1) SA 984 (CC) (1996 (1) BCLR 1; [1995] ZACC 13): dictum in para [164] applied

Geuking v President of the Republic of South Africa and Others 2003 (3) SA 34 (CC) (2003 (1) SACR 404; 2004 (9) BCLR 895; [2002] ZACC 29): referred to

Hartman v Minister van Polisie 1983 (2) SA 489 (A): referred to

Hunter v Financial Sector Conduct Authority and Others 2018 (6) SA 348 (CC) (2018 (12) BCLR 1481; [2018] ZACC 31): dictum in para [105] applied

Land en Landbouontwikkelingsbank van Suid-Afrika v Conradie 2005 (4) SA 506 (SCA) ([2005] 4 All SA 509; [2005] ZASCA 15): referred to

2020 (2) SA p377

Laugh It Off Promotions CC v SAB International (Finance) BV t/a Sabmark International (Freedom of Expression Institute as Amicus Curiae) 2006 (1) SA 144 (CC) (2005 (8) BCLR 743; [2005] ZACC 7): dictum in para [30] applied

Legal Aid South Africa v Magidiwana and Others 2015 (2) SA 568 (SCA) ([2014] 4 All SA 570; [2014] ZASCA 141): referred to

Madinda v Minister of Safety and Security 2008 (4) SA 312 (SCA) ([2008] 3 All SA 143; [2008] ZASCA 34): dictum in para [7] applied

Masetlha v President of the Republic of South Africa and Another 2008 (1) SA 566 (CC) (2008 (1) BCLR 1; [2007] ZACC 20): referred to

Minister of Safety and Security v De Witt 2009 (1) SA 457 (SCA) ([2008] ZASCA 103): referred to

Minister van Polisie en 'n Ander v Gamble en 'n Ander 1979 (4) SA 759 (A): referred to

Minister van Wet en Orde en 'n Ander v Hendricks 1987 (3) SA 657 (A): referred to

Mogopodi v Member Executive Council, Free State [2008] ZAFSHC 38: applied and distinguished

Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) (1996 (12) BCLR 1559; [1996] ZACC 20): applied and distinguished

Moise v Greater Germiston Transitional Local Council: Minister of Justice and Constitutional Development Intervening (Women's Legal Centre as Amicus Curiae) 2001 (4) SA 491 (CC) (2001 (8) BCLR 765; [2001] ZACC 21): dictum in para [10] applied

Natal Rugby Union v Gould 1999 (1) SA 432 (SCA) ([1998] 4 All SA 258; [1998] ZASCA 62): referred to

National Director of Public Prosecutions and Another v Mohamed NO and Others 2003 (4) SA 1 (CC) (2003 (1) SACR 561; 2003 (5) BCLR 476; [2003] ZACC 4): referred to

Palvie v Motale Bus Service (Pty) Ltd 1993 (4) SA 742 (A): referred to

Port Elizabeth Municipality v Smit 2002 (4) SA 241 (SCA) ([2002] ZASCA 10): referred to

Premier, Provinsie Mpumalanga, en 'n Ander v Groblersdalse Stadsraad 1998 (2) SA 1136 (SCA): referred to

Qoboshiyane NO and Others v Avusa Publishing Eastern Cape (Pty) Ltd and Others 2013 (3) SA 315 (SCA) ([2012] ZASCA 166): dictum in para [5] applied

Radio Pretoria v Chairman, Independent Communications Authority of South Africa and Another 2005 (1) SA 47 (SCA): dictum in para [41] applied

Rand Water Board v Rotek Industries (Pty) Ltd 2003 (4) SA 58 (SCA): referred to

Rennie NO v Gordon and Another NNO 1988 (1) SA 1 (A): dictum at 22D – F applied

Road Accident Fund Appeal Tribunal and Others v Gouws and Another 2018 (3) SA 413 (SCA) ([2018] 1 All SA 701; [2017] ZASCA 188): dictum in para [27] applied

Road Accident Fund v Duma and Three Similar Cases 2013 (6) SA 9 (SCA) ([2013] 1 All SA 543; [2012] ZASCA 169): distinguished

The Merak S: Sea Melody Enterprises SA v Bulktrans (Europe) Corporation 2002 (4) SA 273 (SCA) ([2002] ZASCA 18): referred to

Van Staden and Others NNO v Pro-Wiz (Pty) Ltd 2019 (4) SA 532 (SCA) ([2019] ZASCA 7): referred to.

2020 (2) SA p378

Legislation cited

The Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, s 3: see Juta's Statutes of South Africa 2018/19 vol 1 at 2-685 and 2-686.

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