Mohlomi v Minister of Defence

• Jurisdiction: South Africa
• Judge: Didcott J, Chaskalson P, Mahomed DP, Ackermann J, Kentridge AJ, Kriegler J, Langa J, Madala J, Mokgoro J, O'Regan J, Sachs J
• Judgment Date: 26 September 1995
• Citation: 1997 (1) SA 124 (CC)
• Docket Number: CCT 41/95
• Hearing Date: 21 November 1995
• Counsel: G J Marcus (with him B E Leech) for the plaintiff Z F Joubert SC (with him P Stais) for the defendant
• Court: Constitutional Court

Didcott J:

[1] In the case that we now have before us, a civil action which has come here from the Witwatersrand Local Division of the Supreme Court, the J

Didcott J

A plaintiff is suing the defendant for damages. They are claimed as compensation for the consequences of injuries which the plaintiff is said to have sustained on 2 May 1994 when a soldier shot him intentionally. The litigation began while he was still a minor. So he started it with the help of his father and natural guardian. The pleadings in the action have closed, but it has not yet gone to trial. B

[2] The claim is contested by the defendant, whose plea denied all the allegations of fact on which it was based. He also filed a special plea, invoking s 113(1) of the Defence Act 44 of 1957 and taking the preliminary point of non-compliance with that. The subsection decrees that:

C 'No civil action shall be capable of being instituted against the State or any person in respect of anything done or omitted to be done in pursuance of this Act, if a period of six months . . . has elapsed since the date on which the cause of action arose, and notice in writing of any such civil action and of the cause thereof shall be given to the defendant one month at least before the commencement thereof.'

D Those dual requirements, according to the defendant, governed the litigation but were not met. He complained, firstly, that the time which passed from 2 May 1994 until the date when the action was instituted had exceeded six months and, secondly, that the necessary notice had been given to him less than a month in advance of that later E date. A replication to the special plea followed, in which the plaintiff disputed the first charge, conceded the second one, and contended that neither mattered because the subsection clashed with ss 8, 22 and 28 of the interim Constitution (the Constitution of the Republic of South Africa Act 200 of 1993) and was therefore invalid.

F [3] The plaintiff then applied to the Witwatersrand Local Division for an order under s 102(1) of the Constitution which referred to us, for our ruling on it, the issue raised by that contention. Goldblatt J, who heard the application, granted the order that had been sought. He accounted for his decision by saying:

G 'I consider that it is in the interest of justice that the matter be referred to the Constitutional Court in that at present the merits of the plaintiff's claim cannot be considered because he is barred from proceeding therewith by virtue of his failure to give notice timeously to the defendant in terms of s 113(1) of the Defence Act.'

Such was indeed the effect of s 113(1), as dictated by the judgment delivered in Hartman v Minister van H Polisie[1] which had placed that peremptory construction on an analogous provision couched in comparable terms. Goldblatt J did not allude in addition to the late start of the litigation which had been alleged and denied. But the result of that, if established, was the same under the subsection as the one that he mentioned when dealing I with the notice, barring the action in so many words, and its significance called for no separate comment. The order of referral, I had better add, questioned the constitutionality of the subsection in both its parts.

Didcott J

A [4] The first complaint voiced by the defendant has now, as it happens, fallen away. Counsel agreed during the hearing before us that the summons had in truth been issued, and the plaintiff had thus instituted the action, [2] on the day preceding the last permissible one. That fact was readily ascertainable all along. It is safe to suppose that, had B the defendant's counsel received adequate instructions initially, the objection would never have been taken. Although the point remained in dispute on the pleadings at the time of the referral, the dispute was always an artificial one which I shall ignore, viewing the case as it would have looked from the beginning with no such feature.

[5] The other circumstances that are germane to the constitutional issue have all been common cause from the C outset. They are simply these. The action is indeed the sort which s 113(1) describes and accordingly covers. The requisite notice was given to the defendant in the correct form and terms. That occurred, however, 28 days before the date when the litigation commenced instead of the 31 comprising a month at the time of the year that counted. D

[6] The affidavit filed in support of the application for the referral explained the lateness of the notice. No part of the story that it told was then or is now challenged. What emerges is this. After the shooting the plaintiff was admitted to a hospital, where he remained for some seven weeks. A couple of months later he approached and E sought assistance from the Campus Law Clinic of the University of the Witwatersrand, an office run by attorneys and students which provides indigent people with free legal services. It undertook to handle his case. During a consultation that followed the student interviewing him gained the mistaken impression, and recorded in the file, that a policeman had shot him. The sequel was a notice saying so which the Clinic sent at once to the Minister of F Safety and Security in professed compliance with s 32(1) of the Police Act 7 of 1958, a provision resembling s 113(1) that operated then with reference to the police force. The attorney in charge of the case, who knew that a soldier was said to have done the shooting, detected the mistake six weeks afterwards when he had the occasion G to examine the file. He immediately gave the defendant the notice which concerns us now. By that time, however, the deadline for the institution of the action was too close to brook the delay in launching it that would have allowed 31 days to elapse before its commencement.

[7] The notice would have complied fully with s 113(1) had the month during which it was given happened to be H February rather than October, the actual one. Its lateness by a few days strikes me as a matter of no great moment, especially when so fortuitous a factor is borne in mind. That the loss of those days caused any prejudice to the other side, or even inconvenience, was never suggested and sounds most unlikely. One wonders why the G defendant, or the official entrusted with the decision if he was not personally responsible for that, chose in all those circumstances to lodge the objection and, in particular, to persist with it after

Didcott J

A learning what had accounted for the unpunctuality. [3] The President of this Court put that very question to the defendant's counsel when the case was argued here, but he was unable to answer it. The hard line taken seems on the whole, and in the absence of information casting a better light on it, to have been unfortunate.

B [8] The most pertinent of the three constitutional provisions on which the plaintiff relies in attacking s 113(1) is obviously s 22. It proclaims that:

'Every person shall have the right to have justiciable disputes settled by a court of law or, where appropriate, another independent and impartial forum.'

C Whether the subsection invades that right is the first question which presents itself. An affirmative answer poses in turn the second question, which is whether s 33(1) of the Constitution nevertheless excuses the invasion.

[9] An insistence on notices of the kind required by s 113(1) is by no means peculiar to the particular proceedings that it governs. Similar conditions precedent to the institution of actions are and have long been D familiar features of our statutory terrain, especially the part occupied by departments of State, provincial administrations and local authorities once they become prospective defendants. [4] The conventional explanation for E demanding prior notification of any intention to sue such an organ of government is that, with its extensive activities and large staff which tends to shift, it needs the opportunity to investigate claims laid against it, to consider them responsibly and to decide, before getting embroiled in litigation at public expense, whether it ought to accept, reject or endeavour to settle them. [5] Over the years some Judges have drawn attention, even so, F to the adverse effect on claimants of requirements like those. Innes JA described them in Benning v Union Government (Minister of Finance)[6] as '(c)onditions which clog the ordinary right of an aggrieved person to seek the assistance of a court of law'. One was

Didcott J

A thought by Watermeyer J in Gibbons v Cape Divisional Council[7] to be 'a very drastic provision' and 'a very serious infringement of the rights of individuals'. [8] In Avex Air (Pty) Ltd v Borough of Vryheid[9] Botha JA spoke in the selfsame vein of another '(h)ampering as it does the ordinary rights of an aggrieved person to seek the assistance of the courts'. And Corbett CJ echoed that comment in Administrator, Transvaal, and Others v B Traub and Others[10] when he observed...