Mohlomi v Minister of Defence (CCT41/95) [1996] ZACC 20; 1996 (12) BCLR 1559; 1997 (1) SA 124 (26 September 1996)

Mohlomi v Minister of Defence (CCT41/95) [1996] ZACC 20; 1996 (12) BCLR 1559; 1997 (1) SA 124 (26 September 1996)

Section 113(1) of the Defence Act imposes rigid requirements for notice and institution of action against the state, allowing only six months from the cause of action and requiring written notice at least one month before commencement. The court found that these requirements, in the context of South Africa's social realities—poverty, illiteracy, and lack of access to legal advice—operate harshly and deny many claimants a real and fair opportunity to seek judicial redress. The inability to condone non-compliance, regardless of fault or prejudice, further exacerbates the infringement. The court held that the limitation is not reasonable or justifiable under section 33(1) of the...

Citation
[1996] ZACC 20
Parties
Plaintiff: Leach Mokela Mohlomi; Defendant: Minister of Defence
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
26 September 1996
Case Number
CCT41/95
Procedural Posture
Constitutional Review / Referral From Witwatersrand Local Division; Pre Trial Special Plea on Constitutionality
Outcome
Section 113(1) of the Defence Act is declared inconsistent with section 22 of the interim Constitution and invalid. The declaration applies to all actions not already barred by section 113(1) as of 27 April 1994 and not yet finally determined. The present case is remitted for trial.
Judges
Didcott, Chaskalson, Mahomed, Ackermann, Kentridge, Kriegler, Langa, Madala, Mokgoro, O'Regan, Sachs
Legal Topics
Limitation of Actions, Access to Courts, Notice Requirements, Constitutional Invalidity, Prescription, Condonation
Constitutional Law Civil Procedure Limitation of Actions Access to Courts Notice Requirements Constitutional Invalidity Prescription Condonation

Case Brief

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Parties

Leach Mokela Mohlomi

Plaintiff

Minister of Defence

Defendant

Procedural Posture

Constitutional Review / Referral From Witwatersrand Local Division; Pre Trial Special Plea on Constitutionality

Legal Issues

  1. 1 Does section 113(1) of the Defence Act unconstitutionally limit the right of access to courts under section 22 of the interim Constitution?
  2. 2 Is the limitation imposed by section 113(1) reasonable and justifiable under section 33(1) of the Constitution?
  3. 3 Should section 113(1) be declared invalid for inconsistency with the Constitution?

Ratio Decidendi

Section 113(1) of the Defence Act imposes rigid requirements for notice and institution of action against the state, allowing only six months from the cause of action and requiring written notice at least one month before commencement. The court found that these requirements, in the context of South Africa's social realities—poverty, illiteracy, and lack of access to legal advice—operate harshly and deny many claimants a real and fair opportunity to seek judicial redress. The inability to condone non-compliance, regardless of fault or prejudice, further exacerbates the infringement. The court held that the limitation is not reasonable or justifiable under section 33(1) of the...

Court Disposition

Section 113(1) of the Defence Act is declared inconsistent with section 22 of the interim Constitution and invalid. The declaration applies to all actions not already barred by section 113(1) as of 27 April 1994 and not yet finally determined. The present case is remitted for trial.

Orders

  • Section 113(1) of the Defence Act is declared inconsistent with section 22 of the interim Constitution and invalid.
  • The declaration of invalidity applies to all actions instituted before or since 27 April 1994 not already barred by section 113(1) on that date and not yet finally determined.