Leach Mokela Mohlomi v Minister of Defence

The plaintiff, Leach Mokela Mohlomi, was shot and injured by a soldier on 2 May 1994. While still a minor, he instituted a delictual claim for damages against the Minister of Defence. The defendant raised a special plea based on section 113(1) of the Defence Act 44 of 1957, which required that civil actions against the State be instituted within six months of the cause of action and that written notice be given at least one month before instituting proceedings. Although the action itself was instituted within the six-month period, the required notice was served only 28 days before summons, due to an administrative mistake by the Campus Law Clinic acting for the plaintiff. As a result, the plaintiff challenged the constitutionality of section 113(1), arguing that it infringed rights under the interim Constitution, particularly the right of access to courts.

Section 113(1) of the Defence Act 44 of 1957 was declared unconstitutional and invalid for being inconsistent with section 22 of the interim Constitution.

This case is a leading authority on the constitutional right of access to courts in South Africa. It established that rigid statutory time bars and notice requirements applicable to claims against the state may be unconstitutional if they do not afford claimants a real and fair opportunity to litigate. The judgment influenced subsequent legislative reform and constitutional jurisprudence concerning limitation periods, notice provisions, and judicial condonation.