Minister of Police v Mbali

• Jurisdiction: South Africa
• Judge: van Reenen CJ, Goldin JA and James JA
• Judgment Date: 27 August 1984
• Citation: 1984 (4) SA 757 (TkA)
• Hearing Date: 13 August 1984
• Court: Transkei Appellate Division

Van Reenen CJ:

The issue in this appeal is narrow and crisp. G The question which calls for an answer can be easily stated, but not so easily answered.

The respondent alleges that he had been assaulted by members of the police force and, as a result, had suffered damages. He consulted a firm of attorneys and they wrote the following letter to the appellant:

"We are acting on the instructions of the abovenamed who advises that on or about 20 October 1980 he was wrongfully and H unlawfully assaulted by some members of the police force attached to Dubeni Police Station in the district of Lady Frere as a result of which client sustained serious injuries.

As a result of the said assault client sustained damages in the sum of R2 000 for which he holds you liable, as the police officers in question were acting within the scope of their employment and in the course of their duties. Our instructions are to demand, as we hereby do, payment of the amount aforesaid."

I Subsequently, summons was issued against the appellant and in his particulars of claim respondent averred that "plaintiff has complied with the provisions of s 25 of Act 16 of 1979."

To this the appellant raised a special plea, which, in its final guise, averred that

"The plaintiff in the present action has failed to give any notice

Van Reenen CJ

whatsoever, alternatively, has failed to give a valid A notice, to the defendant in terms of s 25 (1) of Act 16 of 1979."

HENDLER AJ dismissed this special plea, hence this appeal. (See 1984 (2) SA 596 (Tk).)

The crisp issue is whether the letter from the respondent's attorneys satisfies the requirements of s 25 of Act 16 of 1979, which reads as follows:

B "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 the cause thereof shall be given to the defendant at least one month before the commencement of such action."

The provisions of this section, as well as others of a like C trend enacted to protect other Government agencies, Provincial Councils and local authorities, have been debated at great length in a large number of judgments, the dicta of which are somewhat difficult to reconcile, largely for the reason that these provisions were, in those cases, applied to wide ranging sets of facts.

D The general tendency has been to give as liberal an interpretation as possible in favour of the litigants who sought redress from public bodies, but, apt as the Court may be to come to the aid of the subject, care must be taken to ensure that the clear intention of the Legislature is not stultified. It is generally recognised that there are good grounds for this E type of legislation...