Leach Mokela Mohlomi v Minister of Defence

The plaintiff, a minor at the time, was shot by a soldier on 2 May 1994 and sought damages from the defendant Minister of Defence. The plaintiff, who was indigent, approached the Campus Law Clinic of the University of the Witwatersrand for assistance. Due to a mistake, the clinic initially sent notice to the Minister of Safety and Security instead of the Minister of Defence. When the error was discovered six weeks later, proper notice was given to the defendant, but only 28 days before commencing the action instead of the required one month (31 days). The defendant raised a special plea based on section 113(1) of the Defence Act 44 of 1957, which required (1) that civil actions be instituted within six months of the cause of action arising, and (2) that written notice be given at least one month before commencement. While the action was instituted within the six-month period, the notice was three days short of the one-month requirement. The plaintiff challenged the constitutionality of section 113(1).

• Whether section 113(1) of the Defence Act 44 of 1957 is inconsistent with section 22 of the interim Constitution (Act 200 of 1993), which guarantees the right to have justiciable disputes settled by a court of law
• Whether the time limitations and notice requirements in section 113(1) constitute an unreasonable and unjustifiable limitation on the right of access to courts
• Whether section 113(1) can be justified under section 33(1) of the interim Constitution (the limitations clause)
• Whether section 113(1) violates the equality guarantee in section 8 of the Constitution
• Whether section 113(1) violates the right to property in section 28 of the Constitution

Section 113(1) of the Defence Act 44 of 1957 was 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 that were not already barred by section 113(1) on that date and which have not yet been finally determined. The case was remitted to the Witwatersrand Local Division for trial. No order as to costs was made.

A statutory provision that imposes time limitations on the institution of legal proceedings violates the constitutional right of access to courts (section 22 of the interim Constitution) where it fails to provide claimants with an adequate and fair opportunity to exercise that right. The adequacy and fairness of the opportunity must be assessed in light of the particular circumstances characterizing the class of cases in question, including relevant social context. A limitation on access to courts cannot be justified under section 33(1) of the Constitution where the state's legitimate interests could be adequately protected through less restrictive means. Section 113(1) of the Defence Act, which required notice one month before suit and commencement of action within six months of the cause of action arising, with no provision for condonation of non-compliance, was too rigid and severe given South African conditions of poverty, illiteracy, and limited access to legal services, and could not be justified when compared to less restrictive alternatives like section 57 of the South African Police Service Act.

Didcott J made several notable observations: (1) He expressed regret that the defendant persisted with the technical objection despite the three-day shortfall being caused by an honest mistake and causing no apparent prejudice. (2) He noted that requirements for prior notice to state defendants had long been criticized by judges as "clogging" ordinary rights to seek court assistance and constituting "drastic" and "serious infringement" of individual rights. (3) He discussed but declined to rule on the alternative arguments based on equality (section 8) and property rights (section 28), having found the section 22 challenge determinative. (4) He distinguished Zimbabwean, Ciskeian, and Namibian cases relied on by the defendant, noting they involved different constitutional provisions and that testing adequacy against "normal" rather than "extraordinary" situations was inappropriate where reasonably conceivable situations of hardship are realistic in the South African context. (5) He observed that the generalisation that "statutes of limitation do not distinguish between just and unjust delay" is not apt in South Africa, where several statutes do provide for condonation. (6) He noted the South African Law Commission had recommended a decade earlier that special time requirements for suing the state should be scrapped, except for a notice requirement subject to judicial condonation.

This landmark judgment established important principles regarding access to justice in post-apartheid South Africa. It recognized that constitutional rights of access to courts must be interpreted in light of South African social realities, including poverty, illiteracy, language barriers, and limited access to legal services. The Court rejected rigid procedural requirements that effectively deny vulnerable litigants their day in court, particularly where less restrictive alternatives can adequately protect legitimate state interests. The case demonstrates the Constitutional Court's willingness to scrutinize statutory provisions that were acceptable under the old legal order but inconsistent with the values of the new constitutional dispensation. It also illustrates the proportionality analysis required under the limitations clause: examining whether desired ends could be achieved through means less damaging to constitutional rights. The judgment prompted legislative reform and influenced subsequent cases on access to justice and procedural fairness.