Lafras Luitingh v Minister of Defence

The plaintiff, a former member of a disbanded military unit engaged in clandestine activities, sued the Minister of Defence for money claimed under a contract governing his service. The defendant raised a special plea under section 113(1) of the Defence Act 44 of 1957, arguing that: (1) the requisite notice was not given, and (2) proceedings were started more than six months after the cause of action arose. The plaintiff denied these claims and argued the provision was unconstitutional. The cause of action allegedly arose in 1990, but summons was issued on 29 April 1994, two days after the interim Constitution came into force. With consent of both parties, the Transvaal Provincial Division (per Curlewis DJP) referred the constitutional validity of section 113(1) to the Constitutional Court under section 102(1) of the Constitution. The parties indicated they would likely submit the dispute to the Ombudsman if the provision was struck down.

• Whether the referral to the Constitutional Court under section 102(1) of the interim Constitution was competent
• Whether the constitutional issue was potentially decisive of the case when material factual and legal questions remained unanswered
• Whether it was in the interests of justice to refer the matter before resolving preliminary issues
• Whether the Court should grant direct access under Rule 17(1) where a referral was found to be incompetent
• The proper interpretation and application of section 102(1) of the interim Constitution regarding referrals

The referral was struck off the roll, the application for direct access was refused, and the case was remitted to the Transvaal Provincial Division. No order as to costs was made.

A referral under section 102(1) of the interim Constitution is incompetent where material factual and legal questions remain unresolved that determine whether the constitutional issue can even arise or whether it is potentially decisive of the case. A constitutional issue cannot be considered 'potentially decisive' if the constitutional provision on which it is based may not even apply to the case. Courts must follow the general principle of deciding cases without reaching constitutional issues where possible - this requires resolving preliminary non-constitutional matters first. The Constitutional Court has the authority to review whether the interests of justice support a referral and is not bound by the referring court's value judgment on this question. Direct access will not be granted under Rule 17(1) merely to cure an incompetent referral unless exceptional circumstances exist.

Didcott J questioned whether section 102(1) contemplated referrals based on the parties' agreement to pursue alternative dispute resolution (via the Ombudsman) rather than to obtain a ruling needed for adjudication of the matter. He suggested this may not have been the purpose the section was designed to serve, but left the point undecided as it was not argued. The Court also left open the full interpretation of the proviso to section 102(1) regarding what evidence must be heard before referral, assuming without deciding that it did not require the referring judge to hear evidence on all factual components of disputed questions. The judgment noted that sections 26 and 27 of the Constitution (economic activity and labour practices) appeared to have no bearing on section 113(1) of the Defence Act, and questioned why they were included in the referral order. The Court commented on the need for referring courts to explain why they believe a constitutional challenge may succeed when considering the interests of justice.

This case established important principles governing referrals to the Constitutional Court under section 102(1) of the interim Constitution. It clarified that: (1) referrals must meet strict requirements including that the issue be within the Court's exclusive jurisdiction, potentially decisive, and that referral be in the interests of justice; (2) constitutional issues should not be decided prematurely when the case can be resolved on other grounds; (3) factual and legal questions that affect whether a constitutional issue can even arise must be resolved first; (4) the Constitutional Court is not bound by the referring court's assessment of the interests of justice and can decline to hear matters not ripe for adjudication; and (5) direct access will not be granted merely to legitimate an incompetent referral absent exceptional circumstances. The judgment reinforced judicial economy and the principle of constitutional avoidance, requiring that non-constitutional issues be resolved first where possible.