Moise v Greater Germiston Transitional Local Council: Minister of Justice and Constitutional Development Intervening (Women's Legal Centre as Amicus Curiae)

• Jurisdiction: South Africa
• Judge: Chaskalson P, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, Sachs J, Yacoob J, Madlanga AJ and Somyalo AJ
• Judgment Date: 04 July 2001
• Docket Number: CCT 54/2000
• Hearing Date: 16 May 2001
• Counsel: No appearance for the plaintiff. No appearance for the defendant. L T Sibeko for the intervenor. A M Breitenbach (with him M L Norton) for the amicus curiae.
• Court: Constitutional Court

Somyalo AJ:

[1] The plaintiff instituted action in his personal capacity, as well as in his representative capacity on behalf of his minor daughter, F Faith Moise, against the defendant for recovery of delictual damages arising out of injuries sustained on 28 April 1998. She was injured while attempting to board a bus, driven at the time by an employee of the defendant acting in the course and within the scope of his employment. At the time the plaintiff's daughter was eight years old. G

[2] In the Witwatersrand High Court (the High Court) the defendant raised a special plea to the effect that the plaintiff's action was time-barred by reason of his failure to comply with the provisions of s 2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local Authorities) H Act [1] (the Act). The plaintiff's replication included an attack on the constitutionality of s 2(1)(a) of the Act as being inconsistent with the provisions of s 34 of the Constitution of the Republic of South Africa Act 108 of 1996. After some preliminary skirmishes, the case finally resolved itself into a determination of the constitutionality of s 2(1)(a) of the Act.

[3] At the conclusion of the hearing, the High Court made the following order: I

'(1)

The special plea is dismissed with costs, on the basis that the

Somyalo AJ

provisions of s 2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970 are A unconstitutional.

(2)

The finding in para 1 above is referred to the Constitutional Court for confirmation in terms of the provisions of s 167(5) of the Constitution of the Republic of South Africa Act 108 of 1996.

(3)

The defendant is to pay the costs occasioned by the argument of the special plea.' B

[4] The order declaring the provisions of s 2(1)(a) of the Act invalid was submitted to this Court for confirmation in terms of s 172 of the Constitution and directions for its disposal were given by the President of the Court. However, the plaintiff and the defendant reached an agreement and had no further C interest in the matter. Amended directions were then given, notifying the Minister of Provincial and Local Government, the Minister of Justice and Constitutional Affairs (the Minister) as well as the South African Local Government Association of the matter and inviting other interested parties to make representations as to confirmation or D otherwise. An amicus curiae, the Women's Legal Centre, supported confirmation and at the request of the Court the Minister appointed counsel to present argument on the question. [2] The Court is indebted to counsel for both the amicus and the Minister for their helpful submissions. E

[5] Section 2(1)(a) of the Act provides as follows:

'Subject to the provisions of this Act, no legal proceedings in respect of any debt shall be instituted against an administration, local authority or officer (hereinafter referred to as the debtor) -

(a)

unless the creditor has within 90 days as from the day on which the debt became due, served a written notice of such proceedings, in which are set out the facts from which the debt arose F and such particulars of such debt as are within the knowledge of the creditor, on the debtor by delivering it to him or by sending it to him by registered post. . . .'

[6] The basis of the plaintiff's attack on s 2(1)(a) of the Act and the basis on which the High Court held it to be invalid is that (a) it limits the right under G s 34 of the Constitution and (b) this limitation cannot be justified. Section 34 provides as follows:

'Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.' H

[7] This entails a two-stage enquiry: first, whether or not s 2(1)(a) limits the right of access to a court thus protected by s 34 of the Constitution. If it does not, that is the end of the matter. However, if it does, a second enquiry has to be undertaken. That is whether the limitation of the right of access is reasonable and justifiable within the meaning of s 36 of the Constitution. This latter provision and the limitations analysis it requires will be discussed later. I

Somyalo AJ

[8] Obviously the question, whether or not s 2(1)(a) of the Act limits the constitutional right of access to court and, if A so, to what extent depends primarily on the meaning and effect of the section. It is important to examine the Act as a whole as the section 'forms part and parcel of a composite scheme . . .'. [3] Section 2(1)(b), sometimes referred to as providing an 'investigation or negotiation period', stipulates that after service of the s 2(1)(a) notice, no legal proceedings may be instituted against the debtor B before the expiration of a period of 90 days, unless the debtor has in writing denied liability for the debt before the expiration of such period. Section 2(1)(c) places a bar on the institution of proceedings 24 months after the date when the debt became due, while s 2(2)(c) provides that a debt shall not be regarded as due before the first day on which the creditor has knowledge of the C identity of the debtor and the facts from which the debt arose. [4]

[9] Section 4 then permits a claimant (styled a creditor) to apply to a court of competent jurisdiction for leave to serve the s 2(1)(a) notice after the prescribed period, on such conditions as the court may deem fit, but subject to the 90-day D investigation/negotiation period and the 24-month cut off. The court considering such an application must satisfy itself that

(a)

the debtor is not prejudiced by the failure; [5] or

(b)

by reason of special circumstances, the creditor could not reasonably have been expected to serve the notice within the E prescribed period.

[10] Special time limits within which litigation has to be instituted and requirements as to notice are a common feature of statutes relating to claims against organs of State, so much so that they were the subject of a special report by the South African Law F Commission in October 1985. [6] We are not concerned here with rules as to time limits and extinctive prescription, which have their own well-known rationale. Nor are we concerned with rules relating to the manner or form in which proceedings are to be instituted in particular courts. Here the focus is on special statutory provisions that single out particular kinds of proceedings G

Somyalo AJ

against specific kinds of defendants and attach special extraneous preconditions to their institution. The object is not to A regulate judicial proceedings but to protect the interests of the defendants. The reasons for this category of legislation were conveniently collated in the following terms by the South African Law Commission in its October 1985 report: [7] B

'The circumstances under which the State can incur liability are legion. Because of the State's large and fluctuating work force and the extent of its activities, it is impossible to investigate an incident properly long...