Moise v Transitional Local Council of Greater Germiston

The plaintiff, Sias Moise, acting in his personal capacity and on behalf of his minor daughter, instituted a delictual damages claim against the Transitional Local Council of Greater Germiston after his eight-year-old daughter was injured on 28 April 1998 while attempting to board a bus driven by an employee of the defendant acting in the course and scope of employment. In the Witwatersrand High Court, the defendant raised a special plea that the claim was time-barred because the plaintiff failed to serve written notice within 90 days as required by section 2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970. The plaintiff challenged the constitutionality of that provision as infringing the right of access to courts under section 34 of the Constitution. The High Court upheld the constitutional challenge and referred the declaration of invalidity to the Constitutional Court for confirmation.

The Constitutional Court confirmed the order of the Witwatersrand High Court declaring section 2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970 constitutionally invalid.

This case is significant for reinforcing the constitutional right of access to courts under section 34 and for scrutinising statutory notice requirements imposed on claims against organs of state. It confirms that short and rigid notice periods may be unconstitutional where they impose disproportionate barriers to litigation, particularly for vulnerable claimants, and it underscores the obligation on government to justify limitations of constitutional rights.