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2 Reasons why implementation of the previous report should be reconsidered

2.1 Parliament has demonstrated its willingness to relax the strict requirements insisted on previously. Section 57(1) of the South African Police Service Act^[1] has changed the period within which legal action must be commenced from 6 months after the time when the cause of action arose in section 32(1) of the Police Act^[2] to 12 months after the date upon which the claimant became aware of the alleged act or omission or after the date upon which the claimant might be reasonably expected to have become aware of the alleged act or omission, whichever is the earlier date. Section 57(5) of the new Act gives a court the right to dispense with the requirements or prohibitions contained in the section where the interests of justice so require.

2.2 In the case of Mohlomi v Minister of Defence^[3] the Constitutional Court declared the provisions of section 113(1) of the Defence Act^[4] inconsistent with section 22 of the interim Constitution^[5] and to be invalid for that reason. Such declaration of invalidity apply to and govern all actions instituted either before or since 27 April 1994^[6] which were not already barred by section 113(1) on that date and which, on 26 September 1996,^[7] have not yet been finally determined by judgments delivered at first instance or on appeal or by settlements duly concluded. All cases to which the declaration of invalidity apply will be regulated by chapter III of the Prescription Act^[8] until Parliament produces a suitable replacement for section 113(1).^[9]

2.3 It is submitted that Parliament should produce a suitable replacement, not only for section 113(1), but also for other similar provisions. Each such provision must be scrutinised to see whether its own particular range and terms are compatible with the right which section 22 of the interim Constitution bestows on everyone to have his or her justiciable disputes settled by a court of law.^[10] The decision of the Constitutional Court has created serious doubt about the validity of many provisions, especially those that agree closely with section 113(1) of the Defence Act. Similar questions will arise under sections 34 and 36 of the 1996 Constitution of the Republic of South Africa.^[11]

2.4 It is further submitted that it is highly desirable that a uniform provision should be enacted for actions against all government institutions. The numerous provisions which lay down different requirements in different Acts create uncertainty.^[12] This uncertainty is aggravated by the uncertainty about the constitutionality of each different provision.

[1] Act 68 of 1995.

[2] Act 7 of 1958 .

[3] 1997 (1) SA 124 (CC).

[4] Act 44 of 1957.

[5] Act 200 of 1993: Every person shall have the right to have justiciable disputes settled by a court of law or, where appropriate, another independent and impartial forum.

[6] The date when the interim Constitution came into force.

[7] The time of the order.

[8] Act 68 of 1969.

[9] Paragraphs [25] and [26] of the Mohlomi case.

[10] Paragraph [12] of the Mohlomi case.

[11] Act 108 of 1996.

[12] Paragraph 5.2 at 7 of the Commission’s previous report.