IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO. CCT 41/95
In the matter between :
MOHLOMI. LEACH MOKELA Applicant
and
THE MINISTER OF DEFENCE Respondent
RESPONDENTS HEADS OF ARGUMENT
1. The Respondent concurs with the heads of argument filed on his behalf in the matter ofLuitinghv The Minister of Defence (Case No. CCT 29/95).
2. 2.1. The discussion in these heads of argument will be limited only to those issues which are raised in the heads of argument filed on behalf of this Applicant.
2.2. Issues which are common to both matters and which have been set out in Respondents heads already filed of record, will not again be addressed.
THE FACTS
3. The action was instituted by the Applicant, as a minor, duly assisted by his father.
Particulars of claim, p.3, para 1
4. The date of institution of the action remains in dispute. The copy of the particulars of claim filed of record does not reflect a Registrar's stamp evincing the date of issue, nor is the date of service apparent. The writing "Issued on 1 November 1994" is left unexplained.
Summons, p. 1
5. In the result, Applicant's action falls short of the provisions of Section 113 of the Defence Act, No. 44 of 1957, as amended ("Section 113"), in that:
5.1. The Applicant failed to give due notice of the intended action; and
5.2. The action was not instituted within a period of 6 months from the date on which the cause of action arose.
Special plea, p.10, paras 3 and 4 Replication, p. 13, para 4
6. The Applicant alleges that Section 113 of the Act violates various rights enshrined in the Constitution. The Applicant must show and this Honourable Court must first consider, whether or not Section 113 of the Act interferes with the specific fundamental right. The onus of justification is on the Respondent.
S v Zuma and Others. 1995 (2) SA 642 (CC) at 654 G
Mirhadizadeh v The Queen in right of Ontario. (1987) 33 DLR (4th) 314 at 316
Andrews v Law Society of British Columbia. (1989) 56 DLR (4th) 1989 at 21
RvOakes. (1986) 26 DLR (4th) 221 at 225-226
7. Respondent denies that Section 113 constitutes a prima facie violation of Sections 8, 22 or 28(1) of the Constitution of the Republic of South Africa, Act No. 200 of 1993, as amended ("the Constitution"). It is furthermore submitted that such violation as may be found by this Honourable Court is reasonable and justifiable in terms of Section 33 of the Constitution.
EQUALITY BEFORE THE LAW
8. Section 113 of the Act does not discriminate between persons who have a civil action in terms of the Act. All such litigants are subject to the same provision and have the same benefit of the law. The mere fact that Section 113 may treat litigants against the South African National Defence Force differently from those litigants whose actions against individuals are governed by the provisions of the Prescription Act, Act No. 68 of 1969, as amended, does not constitute a violation of Section 8 of the Constitution. Difference in the treatment of similarly situated persons does not by itself violate the provisions of Section 8.
"In the present case all persons wishing to commence actions are subject to the same provisions. Tfiere is no discrimination between one class of Plaintiff and another."
(Per Steele J in Muhadtadeh v The Queen in right of Ontario. (1987) 33 DLR (4th) 314 at 317)
'The significance of the Supreme Court's judgment in Andrews is that the benefit of s. 15(1) is now limited to groups or classes who are enumerated in that section or who can be considered to be analogous to them. The mere fact that legislation may treat one group of Canadians differently from another is not sufficient to invoke the protection of the section.
Indeed, his judgment recognises the obvious fact that governments and legislatures must make distinctions and treat groups differently ..."
(Per Blair JA in Mirhadizadeh v The Queen in right of Ontario. (1987) 60 DLR (4th) 597 at 600)
Cf. MweWe v Ministry of Works. Transport and Communication. (NHC) 9 March 1995, unreported
Chairman of the Council of State v Ookose. 1994 (2) BCLR1 (CKAD)
9. Moreover, Section 113 does not provide for differentiated treatment on the grounds of human characteristics. Nor does it relate to personal characteristics of the individuals or groups, i.e. minors. The fact that Section 113 results in an unequal treatment of minors when compared to those minors enjoying the benefit of the extended prescription period under Section 13 of Act 68 of 1969, does not entitle the Applicant to the protection afforded by Section 8.
As was stated by Mclntyre J in Andrews v Law Soaetv of British Columbia, supra, at p. 11
"In other words, the admittedly unattainable ideal should be that a law expressed to bind all should not because of irrelevant personal differences have a more burdensome or less beneficial impact on one than another." (Own underlining)
and at pl8: ' "/ would say then that discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society." (Own underlining)
Cf. Mirhadizadeh v The Queen in right of Ontario. 60 DLR supra at 601 Murphy v Welsh: Stoddard v Watson. (1991) 81 DLR (4th) 475 at 483 Rights and Constitutionalism, The New South African Legal Order Van
Wyketak p.208
10. The Applicant places reliance upon the purposes of the Constitution. It is accepted that the aims and objects of the legislature , in enacting Section 113, should be assessed, inter alia, in the context of pre-Constitutional history. It does not, however, necessarily follow that Section 113 is discriminatory or that it constitutes an unreasonable limitation period which frustrates "an ethos of accountability". The evolution and ratio of Section 113 was fully dealt with in the heads of argument filed on Respondent's behalf in the Luitingh matter.
ACCESS TO COURT
11. Section 113 neither limits nor negates the Applicant's right to have his action settled by a Court of law,
"but merely limits in time the remedy of bringing proceedings to enforce that right. Tfiey only require that the constitutional right be asserted within a particular time".
(Own underlining)
Stambotie v Commissioner of Police. 1990 (2) SA 369 (ZSC) at 371 J - 372 A
12. It is stated on behalf of the Applicant that the limitation period provided for in Section 113 is "unreasonable". This contention is unfounded. In any event, the Applicant does not suggest that the times prescribed are so inadequate as, in a practical sense, to negate the essential content of the right.
13. Furthermore, it is of importance to consider that the fundamental rights enshrined in Chapter 3 of the Constitution are as a rule not absolute and are limited by the rights of others and by the legitimate needs of society. As in other countries, there are numerous laws of general application which limit the exercise of various fundamental rights. In particular, there exist a number of statutory provisions which limit the right in terms of Section 22, by prescribing specific time limits in respect of prior notice and/or instituting action.
14. It would not be inappropriate in this respect to consider the dictum of Mclntyre J in Andrews v Law Society of British Columbia, supra at p.13
"It is, of course, obvious that legislatures may - and to govern effectively - must treat different individuals and groups in different ways. Indeed, such distinctions are one of the main preoccupations of legislatures. The
classifying of individuals and groups, the making of different provisions respecting such groups, the application of different rules, regulations, requirements and qualifications to different persons is necessary for the governance of modern society."
15. It is submitted that in deciding whether Section 113 of the Act is reasonable and justifiable, this Honourable Court will have regard to the following:
"Although one may envisage situations in which the person would be absolutely unable to give notice and commence action within the times permitted, for instance he may have been incapacitated in an accident, the adequacy of the period must be tested against the normal and not the extraordinary situation. For statutes of limitation do not distinguish between just and unjust delay. This means that in the very rare case a person with a good claim, through no dilatoriness or fault on his part but due to circumstances beyond his control, will be barred from asserting a constitutional right,"
Stambolie v Commissioner of Police, supra, at 374 H-J Cf: Montsisi v Minister van Potisie. 1984 (1) SA 619 (AA)
10
16. For the reasons abovestated, and in the event of this Honourable Court finding that Section 113 does limit the Applicant's right of access to Court, it is submitted that such limitation is permissible.
RIGHT TO PROPERTY
17. Section 28(1) provides for the right to "hold rights in property". However, Section 28 is not unqualified and the aforementioned terminology alone is insufficient reason to hold that this includes in the constitutional guarantee a right of civil action. Such a wide interpretation is not justified.
Section 28, read with Sections 121 to 123 of the Constitution
18. Should this Honourable Court be disposed to interpret the right to property widely to include, for example, commercial interests, certain social rights and economic benefits, the approach should, with respect, be circumspect.
Rights and Constitutionalism, supra, p.478 es
11
19. The case of Logan v Zimmerman Brush Co. 455 US 422; 71 L Ed 2d 265 is no support for Applicant's contention that Section 28 includes rights of action. The Court in that case dealt with the Due Process Clause of the 14th Amendment of the US Constitution, which effectively provides that no person shall be deprived of life, liberty or property, without due process of law. (The 14th Amendment applies to the individual states, whereas the 5th Amendment, which is of similar effect, applies to the Federal Government.) The United States Constitution does not specifically provide for substantive access to justice in civil matters (as is provided for in Section 22 of the South African Constitution). It is understandable therefore that the United States Supreme Court has found and expanded upon the determination that a cause of action is a species of property protected by the said clause. This is confirmed by Blackmun J:
"The Court traditionally has held that the due process clauses protect civil litigants who seek recourse in the Courts, either as Defendants hoping to protect their property or as Plaintiffs attempting to redress grievances. In Societe Internationale v Rogers. 357 US 197 (1958), for example - where a Plaintiffs claim had been dismissed for failure to comply with a trial Courts order - the Court read the 'property* component of the Fifth Amendments due process clause to impose 'constitutional limitations upon the power of courts, even in cud of their own valid processes, to dismiss an
12
and:
action without affording a party the opportunity for a hearing on the merits of his cause'." (p.429)
"In any event, the view that Logan's FEPA claim is a constitutionally protected one follows logically from the Court's more recent cases analysing the nature of a property interest. Tfie hallmark of property, the Court has emphasised, is an individual entitlement grounded in State law, which cannot be removed except'for cause'. Memphis Light. Gas and WaterDiv v Craft 436 US 1, 11 - 12 (1978); Goss v Lopez. 419 US 565, 573 - 574
(1975); Board of Regents v Roth. 408 US 564, 576 - 578 (1972). Once that characteristic is found, the types of interests protected as 'property' are varied and, as often as not, intangible, relating 'to the whole domain of social and economic fact'." (p.430)
and also:
Thus, while the right to seek a divorce may not be a property interest in the same sense as is a tort or a discrimination action, the theories of the
13
cases are not very different: having made access to the Courts an entitlement or a necessity, the State may not deprive someone of that access ..." (p.430, n.5)
20. Substantive access to justice is also not constitutionalised in Germany, which fact has arguably led to the wide interpretation of property rights (guarantee of ownership) in that country, although admittedly a narrower interpretation than in the United States.
Rights and Constitutionalism, supra, p. 469
21. The right of access to Court as provided for in Section 22 of the South African Constitution, makes it wholly unnecessary to broaden the scope of Section 28 to also include therein the same guarantee.
14
CONCLUSION
22. Although the limitation provision of Section 113 may require consideration by the legislature, it does not entitle the Applicant to the protection of the Constitution.
PANAYIOTIS STAIS Chambers
Johannesburg 9 November 1995
IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA
CASE NO. CCT 41/95
In the matter between :
MOHLOML LEACH MOKELA Applicant
and
THE MINISTER OF DEFENCE Respondent
UST OF AUTHORITIES
1. S v Zuma and Others. 1995 (2) SA 642 (CC) at 654 G
2. Mirhadizadeh v The Queen in right of Ontario. (1987) 33 DLR (4th) 314 at 316 3. Andrews v Law Society of British Columbia. (1989) 56 DLR (4th) 1989 at 21 4. Rv Pokes. (1986) 26 DLR (4th) 221 at 225 - 226
5. Mirhadtadeh v The Queen in right of Ontario. (1987) 33 DLR (4th) 314 at 317 6. Mirhadizadeh v The Queen in right of Ontario. (1987) 60 DLR (4th) 597 at 600 7. M-wint> v Ministry of Works. Transport and Communication. (NHC) 9 March 1995,
unreported
8. Chairman of the Council of State v Ookose. 1994 (2) BCLR1 (CKAD)
9. Murphv v Welsh: Stoddard v Watson. (1991) 81 DLR (4th) 475 at 483 10. StamboUe v Commissioner of Police. 1990 (2) SA 369 (ZSC)
11. Montsisi v Minister van Polisie. 1984 (1) SA 619 (AA)
12. Logan v Zimmerman Brush Co. 455 US 422; 71 L Ed 2d 265
LITERATURE
1. Rights and Constitutionalism. The New South African Legal Order Van Wyk et al, p.208
