Mabaso v National Commissioner of Police & another

On 10 June 2015, the appellant (Mr Timothy Mabaso) gave notice in terms of section 3(1)(a) of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (the Act) to the National Commissioner of Police of his intention to institute a damages claim. The claim arose from an alleged assault by police officers while the appellant was in custody following his arrest and detention on 20 February 2015. The appellant claimed R400,000 for general damages and loss of earnings. The Commissioner did not respond to the notice or to subsequent correspondence demanding a decision on whether liability was admitted. The appellant launched an application in the Western Cape Division of the High Court seeking a declaratory order that the respondents had an obligation to take a decision to accept, reject or settle the claim, and an order in terms of the Promotion of Administrative Justice Act 3 of 2000 (PAJA) to review and set aside the failure to take such a decision. The High Court dismissed the application with costs. The appellant appealed with leave. By the time of the appeal, summons had been issued and served in November 2017, and the department was defending the action.

• Whether section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002, by necessary implication, places a duty on an organ of state receiving notice of an intention to institute legal proceedings to make a decision to accept, reject or settle the claim prior to commencement of litigation
• Whether an organ of state is obliged to provide reasons to a claimant for such decision
• Whether the appeal had become moot given that litigation had already commenced
• Whether section 34 of the Constitution (right of access to courts) supports an interpretation that creates such an obligation
• Whether the PAJA applies to a failure by an organ of state to make a decision following receipt of a section 3 notice

1. The appeal is dismissed with no order as to costs. 2. The order of the court a quo is amended to read: 'The application is dismissed with no order as to costs.'

Section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 does not, by necessary implication, impose a duty on an organ of state receiving notice of intention to institute legal proceedings to make a decision to accept, reject or settle the claim prior to commencement of litigation. Words cannot be read into a statute by implication unless the implication is a necessary one in the sense that without it effect cannot be given to the statute as it stands. The provisions of section 3 are designed primarily for the benefit of organs of state rather than prospective litigants, to enable investigation of claims and decision-making before litigation. Section 34 of the Constitution (access to courts) is not implicated as section 3 preserves the right to have disputes adjudicated by a court; there is no adjudicable 'dispute' until legal proceedings are instituted. The PAJA does not apply to a failure by an organ of state to make a decision following receipt of a section 3 notice, as such failure does not adversely affect any right of the claimant whose right to institute proceedings remains preserved subject to the limitation period in section 5(2). An interpretation that would create such an implied obligation would create significant practical difficulties including establishing parallel litigation processes and placing intolerable time burdens on state departments.

The Court made several non-binding observations: (1) It would be salutary for organs of state, within their means and resources, to attempt to communicate as early as circumstances permit their attitude to claims by affected persons. (2) The Court noted the philosophical differences between the legislative scheme of the Road Accident Fund and the Act under consideration - the RAF Act was enacted for the benefit of claimants while the Act was enacted primarily for the benefit of organs of state. (3) The Court observed that section 3 and many other similarly worded provisions have been implemented for many years without difficulties, suggesting that had the legislature intended to create an obligation to make a decision, it would have done so in express terms. (4) The Court acknowledged that national state departments have a difficult task in monitoring and evaluating complaints and claims made against them, extending over large geographical areas and encompassing many individual employees and officials. (5) The Court noted that the purpose of provisions such as section 3, as explained in Mohlomi, is to give organs of government the opportunity to investigate claims, consider them responsibly, and decide whether to accept, reject or endeavour to settle them before getting embroiled in litigation - but this describes the purpose of the notice requirement, not an enforceable obligation to make a decision.

This judgment provides authoritative guidance on the interpretation and purpose of section 3 of the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. It clarifies that the provision does not, by necessary implication, impose an obligation on organs of state to make a decision on claims prior to litigation being instituted. The judgment reinforces that provisions requiring notice before suing the state are designed primarily to benefit state organs by enabling them to investigate claims and prepare for litigation, rather than to benefit prospective claimants. It establishes important principles regarding when provisions can be read into legislation by necessary implication, emphasizing that courts should not usurp legislative functions or create parallel litigation processes. The case also demonstrates the application of mootness principles, showing that courts retain discretion to decide matters of public importance even where the issue between the parties has been resolved. The judgment balances the interests of access to justice with the practical realities faced by state departments in managing claims, while encouraging (without mandating) timely communication by state organs where possible.