Moise v Transitional Local Council of Greater Germiston

The plaintiff instituted action in his personal capacity and on behalf of his minor daughter, Faith Moise (aged 8 at the time), against the defendant for recovery of delictual damages arising from injuries sustained on 28 April 1998. She was injured while attempting to board a bus driven by an employee of the defendant acting in the course and scope of employment. The defendant raised a special plea that the plaintiff's action was time-barred by reason of failure to comply with section 2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970, which required written notice to be served within 90 days of the debt becoming due. The plaintiff challenged the constitutionality of section 2(1)(a) as being inconsistent with section 34 of the Constitution. The Witwatersrand High Court declared the provision unconstitutional and referred the matter to the Constitutional Court for confirmation. The plaintiff and defendant subsequently reached agreement and had no further interest in the matter, but the Minister of Justice and Constitutional Development intervened and the Women's Legal Centre participated as amicus curiae.

• Whether section 2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970 limits the right of access to courts protected by section 34 of the Constitution
• If section 2(1)(a) does limit the constitutional right, whether such limitation is reasonable and justifiable under section 36 of the Constitution
• Whether the 90-day notice requirement constitutes a material impediment to accessing courts

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 was confirmed. All ten justices (Chaskalson P, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, Sachs J, Yacoob J and Madlanga AJ) concurred in the judgment of Somyalo AJ.

Section 2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970, requiring written notice within 90 days of a debt becoming due as a precondition to instituting legal proceedings against local authorities, constitutes a material limitation of the right of access to courts protected by section 34 of the Constitution. When viewed as part of a composite scheme with strict notice requirements and limited condonation opportunities, the 90-day period does not afford prospective litigants, particularly the poor and illiterate, a real and fair initial opportunity to approach courts for relief. Such limitation is not reasonable and justifiable under section 36 of the Constitution, as the active protection of the right of access to court outweighs the governmental interest in early notice, particularly where government has failed to discharge its burden of justifying the limitation with evidence and less restrictive means are available.

The Court noted that it was unnecessary to consider the alternative argument based on the equality provisions in section 9 of the Constitution. The Court also observed that special time limits and notice requirements for claims against organs of state are common features of South African legislation, which have been subject to considerable judicial criticism over the years. The Court referenced the South African Law Commission's 1985 report examining such provisions and noted that similar provisions exist in numerous statutes. The Court declined to express any view on the reasonableness of the proposed six-month notice period in the pending Bill to replace the Act, as it was not before the Court for evaluation. The judgment includes an extensive review of the traditional justifications for notice requirements protecting state bodies, including the need for timely investigation, protection of public funds, and guarding against unfounded claims, but emphasizes these must be balanced against constitutional rights.

This case is significant in South African jurisprudence as it establishes the primacy of the constitutional right of access to courts protected by section 34 over statutory limitations that unduly restrict that access. It demonstrates the Court's willingness to strike down procedural barriers that disproportionately affect vulnerable litigants, particularly the poor and illiterate who may lack resources and legal knowledge. The judgment reinforces that justiciability of Bill of Rights protections requires meaningful access to courts, and that procedural obstacles which render rights illusory will not be tolerated. It also clarifies the application of the section 36 limitations analysis, including the burden on government to justify limitations with factual evidence and policy considerations. The decision led to legislative reform through the Institution of Legal Proceedings Against Organs of State Bill, which proposed more reasonable notice periods.