The plaintiff, a former member of a now-disbanded military unit involved in clandestine activities, instituted a civil action against the Minister of Defence in the Transvaal Provincial Division for payment allegedly due under a contract governing his service. The Minister raised a special plea relying on section 113(1) of the Defence Act 44 of 1957, which required notice to be given and imposed a six‑month time bar on civil actions against the State for acts done under the Act. The plaintiff disputed that section 113(1) applied, alternatively alleged compliance, and further contended that the provision was unconstitutional under the Interim Constitution. By agreement between the parties, and on application to the High Court, the constitutional validity of section 113(1) was referred to the Constitutional Court before the remaining factual and legal disputes were resolved.
The referral was struck off the roll, the application for direct access to the Constitutional Court was refused, and the matter was remitted to the Transvaal Provincial Division. No order as to costs was made.
This case is significant for its authoritative guidance on constitutional procedure, particularly referrals under section 102(1) of the Interim Constitution. It underscores the principle of constitutional avoidance, clarifies the requirements of potential decisiveness and the interests of justice, and affirms the Constitutional Court’s control over the timing of constitutional adjudication. The judgment has influenced later practice on premature constitutional challenges and referrals.