Moise v Greater Germiston Transitional Local Council (CCT 54/00) [2001] ZACC 21; 2001 (4) SA 491 (CC); 2001 (8) BCLR 765 (CC) (4 July 2001)

Moise v Greater Germiston Transitional Local Council (CCT 54/00) [2001] ZACC 21; 2001 (4) SA 491 (CC); 2001 (8) BCLR 765 (CC) (4 July 2001)

Section 2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970 imposes a significant obstacle to access to court by requiring written notice within 90 days of the debt becoming due, with only limited scope for condonation. This limitation is particularly harsh for vulnerable claimants who may lack resources or awareness of their rights. The condonation mechanism does not sufficiently mitigate the impediment. The government failed to provide any substantive justification for the limitation, and legislative reform was already pending to replace the scheme with a less restrictive notice period. Applying the criteria in section 36 of the Constitution,...

Citation
[2001] ZACC 21
Parties
Plaintiff: Sias Moise; Defendant: Transitional Local Council of Greater Germiston; Intervenor: The Minister of Justice and Constitutional Development; Amicus Curiae: The Women’s Legal Centre
Court
Constitutional Court
Jurisdiction
South Africa
Judgment Date
4 July 2001
Case Number
CCT 54/00
Procedural Posture
Constitutional Confirmation / Confirmation of High Court Order of Constitutional Invalidity
Outcome
Section 2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970 is declared unconstitutional and invalid. The High Court's order of invalidity is confirmed. The application for variation of the order is refused.
Judges
Somyalo AJ, Chaskalson P, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, Sachs J, Yacoob J, Madlanga AJ
Legal Topics
Right of Access to Court, Limitation of Actions Against State, Notice Requirements, Bill of Rights Limitation, Delictual Liability, Constitutional Invalidity
Constitutional Law Civil Procedure Delict Right of Access to Court Limitation of Actions Against State Notice Requirements Bill of Rights Limitation Delictual Liability +1 more

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Parties

Sias Moise

Plaintiff

Transitional Local Council of Greater Germiston

Defendant

The Minister of Justice and Constitutional Development

Intervenor

The Women’s Legal Centre

Amicus Curiae

Procedural Posture

Constitutional Confirmation / Confirmation of High Court Order of Constitutional Invalidity

Legal Issues

  1. 1 Does section 2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970 limit the right of access to court under section 34 of the Constitution.
  2. 2 If so, is such limitation reasonable and justifiable under section 36 of the Constitution.
  3. 3 Should the declaration of invalidity be confirmed by the Constitutional Court.

Ratio Decidendi

Section 2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970 imposes a significant obstacle to access to court by requiring written notice within 90 days of the debt becoming due, with only limited scope for condonation. This limitation is particularly harsh for vulnerable claimants who may lack resources or awareness of their rights. The condonation mechanism does not sufficiently mitigate the impediment. The government failed to provide any substantive justification for the limitation, and legislative reform was already pending to replace the scheme with a less restrictive notice period. Applying the criteria in section 36 of the Constitution,...

Court Disposition

Section 2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970 is declared unconstitutional and invalid. The High Court's order of invalidity is confirmed. The application for variation of the order is refused.

Orders

  • The order made by Hoffman AJ in the Witwatersrand High Court on 25 October 2000 declaring constitutionally invalid section 2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970 is confirmed.
  • The application for variation of the order issued in this matter on 4 July 2001 is refused.