South Africa: Constitutional Court

CONSTITUTIONAL COURT OF SOUTH AFRICA

 

 

 

                                                                                                                          Case CCT 54/00

 

 

SIAS MOISE                                                                                                                  Plaintiff

 

versus

 

TRANSITIONAL LOCAL COUNCIL OF

GREATER GERMISTON                                                                                          Defendant

 

and

 

THE MINISTER OF JUSTICE AND

CONSTITUTIONAL DEVELOPMENT                                                                   Intervenor

 

and

 

THE WOMEN’S LEGAL CENTRE                                                                   Amicus curiae

 

 

Heard on         :           16 May 2001

 

Decided on     :             4 July 2001

 

 

 

 

JUDGMENT

 

 

 

 

 

SOMYALO AJ:

 

 

[1]       The plaintiff instituted action in his personal capacity, as well as in his representative capacity on behalf of his minor daughter, Faith Moise, against the defendant for recovery of delictual damages arising out of injuries sustained on 28 April 1998.  She was injured while attempting to board a bus, driven at the time by an employee of the defendant acting in the course and within the scope of his employment. At the time the plaintiff’s daughter was 8 years old.

 

 

[1]       In the Witwatersrand High Court (the High Court), the defendant raised a special plea to the effect that the plaintiff’s action was time-barred by reason of his failure to comply with the provisions of section 2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act[1] (the Act).  The plaintiff’s replication included an attack on the constitutionality of section 2(1)(a) of the Act as being inconsistent with the provisions of section 34 of the Constitution.  After some preliminary skirmishes, the case finally resolved itself into a determination of the constitutionality of section 2(1)(a) of the Act.

 

[2]       At the conclusion of the hearing, the High Court made the following order:

 

“(1)      The special plea is dismissed with costs, on the basis that the provisions of Section 2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act No. 94 of 1970 are unconstitutional.

(2)        The finding in paragraph 1 above is referred to the Constitutional Court for confirmation in terms of the provisions of Section 167(5) of the Constitution of the Republic of South Africa Act No. 108 of 1996.

(3)        The Defendant is to pay the costs occasioned by the argument of the special plea..”

 

[3]       The order declaring the provisions of section 2(1)(a) of the Act invalid was submitted to this Court for confirmation in terms of section 172 of the Constitution and directions for its disposal were given by the President of the Court.  However, the plaintiff and the defendant reached an agreement and had no further interest in the matter. Amended directions were then given, notifying the Minister of Provincial and Local Government, the Minister of Justice and Constitutional Affairs (the Minister) as well as the South African Local Government Association of the matter and inviting other interested parties to make representations as to confirmation or otherwise.  An amicus curiae, the Women’s Legal Centre, supported confirmation and at the request of the Court the Minister appointed counsel to present argument on the question.²  The Court is indebted to counsel for both the amicus and the Minister for their helpful submissions.

 

[4]       Section 2(1)(a) of the Act provides as follows:

 

“Subject to the provisions of this Act, no legal proceedings in respect of any debt shall be instituted against an administration, local authority or officer (hereinafter referred to as the debtor)—

(a)  unless the creditor has within ninety days as from the day on which the debt became due, served a written notice of such proceedings, in which are set out the facts from which the debt arose and such particulars of such debt as are within the knowledge of the creditor, on the debtor by delivering it to him or by sending it to him by registered post . . .”.

 

[5]       The basis of the plaintiff’s attack on section 2(1)(a) of the Act and the basis on which the High Court held it to be invalid is that (a) it limits the right under section 34 of the Constitution and (b) this limitation cannot be justified.  Section 34 provides as follows:

 

“Everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum.”

 

[6]       This entails a two-stage enquiry: first whether or not section 2(1)(a) limits the right of access to a court thus protected by section 34 of the Constitution.  If it does not, that is the end of the matter.  However, if it does, a second enquiry has to be undertaken. That is whether the limitation of the right of access is reasonable and justifiable within the meaning of section 36 of the Constitution.  This latter provision and the limitations analysis it requires will be discussed later.

 

[7]       Obviously the question whether or not section 2(1)(a) of the Act limits the constitutional right of access to court and, if so to what extent, depends primarily on the meaning and effect of the section.  It is important to examine the Act as a whole as the section “forms part and parcel of a composite scheme . . .”.³  Section 2(1)(b), sometimes referred to as providing an ‘investigation or negotiation period’, stipulates that after service of the section 2(1)(a) notice, no legal proceedings may be instituted against the debtor before the expiration of a period of ninety days, unless the debtor has in writing denied liability for the debt before the expiration of such period.  Section 2(1)(c) places a bar on the institution of proceedings 24 months after the date when the debt became due, while section 2(2)(c) provides that a debt shall not be regarded as due before the first day on which the creditor has knowledge of the identity of the debtor and the facts from which the debt arose.⁴

 

[8]       Section 4 then permits a claimant (styled a creditor) to apply to a court of competent jurisdiction for leave to serve the section 2(1)(a) notice after the prescribed period, on such conditions as the court may deem fit, but subject to the 90 day investigation/negotiation period and the 24-month cut off.  The court considering such an application must satisfy itself that—

            (a)       the debtor is not prejudiced by the failure;⁵ or

            (b)       by reason of special circumstances, the creditor could not reasonably have been expected to serve the notice within the prescribed period.

 

[9]       Special time limits within which litigation has to be instituted and requirements as to notice are a common feature of statutes relating to claims against organs of state, so much so that they were the subject of a special report by the South African Law Commission in October 1985.⁶  We are not concerned here with rules as to time limits  and extinctive prescription, which have their own well-known rationale.  Nor are we concerned with rules relating to the manner or form in which proceedings are to be instituted in particular courts.  Here the focus is on special statutory provisions that single out particular kinds of proceedings against specific kinds of defendants and attach special extraneous preconditions to their institution.  The object is not to regulate judicial proceedings but to protect the interests of the defendants.  The reasons for this category of legislation were conveniently collated in the following terms by the South African Law Commission in its October 1985 report:⁷

 

“The circumstances under which the State can incur liability are legion.  Because of the State’s large and fluctuating work force and the extent of its activities, it is impossible to investigate an incident properly long after it has taken place. . . . The State is obliged by law to follow cautious and sometimes cumbersome procedures. Government bodies operate on an annual budget and must be notified of possible claims as soon as possible. . . . The State needs time to deliberate and consider questions of policy and the possibility of settlements. . . . The State acts in the public interest and not for gain . . . Because public funds are involved the State must guard against unfounded claims. . . .  [T]he State is an attractive target for unfounded claims.”

 

[10]     This kind of provision is quite common⁸ and its justification has not changed much in the years since the Law Commission made these comments.  The position was summarised by Marais JA in Abrahamse v East London Municipality and Another; East London Municipality v Abrahamse:⁹

 

“The purpose of legislation like this is plain and has been set forth in so many cases that their citation yet again seems unnecessary.  In this instance it is to protect a local authority against precipitate citation of it in a lawsuit by a litigant seeking to obtain payment of a debt allegedly due by the local authority.  It is aimed at providing a local authority with an opportunity of investigating the matter sooner rather than later when investigations might prove more difficult, of considering its position, and, if so advised, of paying or compromising the debt before becoming embroiled in costly litigation.”

 

[11]     However, as this Court pointed out in Mohlomi, provisions of this kind requiring notice prior to the institution of legal proceedings have over the years been subject to considerable judicial criticism because they interfere with the right of access to the courts.  Didcott J, writing for the Court, drew attention to instances of judicial concern in the following terms:¹⁰

 

“Over the years some Judges have drawn attention, even so, to the adverse effect on  claimants of requirements like those.  Innes JA described them in Benning v Union Government (Minister of Finance)¹¹ as ‘(c)onditions which clog the ordinary right of an aggrieved person to seek the assistance of a court of law’.  One was thought by Watermeyer J in Gibbons v Cape Divisional Council¹² to be ‘a very drastic provision and ‘a very serious infringement of the rights of individuals’.¹³  In Avex Air (Pty) Ltd v Borough of Vryheid¹⁴ Botha JA spoke in the selfsame vein of another ‘(h)ampering as it does the ordinary rights of an aggrieved person to seek the assistance of the courts’. And Corbett CJ echoed that comment in Administrator, Transvaal, and Others v Traub and Others¹⁵ when he observed that the provision then in question ‘undoubtedly hampers the ordinary rights of an aggrieved person to seek the assistance of the courts.’”

 

To these concerns should be added the comment on the specific provision with which we are concerned here by Harms JA in the majority judgment in Abrahamse:

 

“The Act deals with competing interests: those of plaintiffs and those of local authorities.  It limits the right of the plaintiff to institute action by requiring notice within a very limited time period after the relevant event.  A plaintiff who requires more time may make an application for relief in terms of s 4.  The Court has then to weigh up the competing interests . . .”.¹⁶

 

[12]     The requirement of written notice as a precondition to the institution of legal proceedings is in itself an obstacle to such legal proceedings.  If it is considered in conjunction with the “very limited period” of 90 days after the due date,¹⁷ “as part and parcel of a composite scheme”, it is apparent that it amounts to a real impediment to the prospective claimant’s access to a court.  The time period is very short, the notice has to be served on the prospective debtor and it has to contain significant information regarding the occurrence and of the damages allegedly suffered.  And, of course, failure to comply with the notice requirement vitiates the claim unless, under section 4 of the Act, a court can be satisfied as to the absence of prejudice to the debtor or the existence of special circumstances exculpating timeous non-compliance.

 

[13]     Moreover, the condonation opportunity afforded to a prospective claimant by section 4 does not render the impediment immaterial.  The obstacle remains regardless of this potential amelioration of its harshness.  This is particularly so if one takes into account that many potential litigants (arguably the majority) are poor, sometimes illiterate and lack the resources to initiate legal proceedings within a short period of time.  Many are not even aware of their rights and it takes time for them to obtain legal advice.  Some come by such advice only fortuitously.  For them a mere 90 days from the commission of the delict within which to serve formal notice on the debtor(s) is, in the words of Didcott J in Mohlomi,¹⁸ not a “real and fair” “initial opportunity” to approach the courts for relief.

 

[14]     It should also be noted that section 4 does not afford a defaulting creditor carte blanche.  The power of a court under the section is confined to extending the period for notice and is by no means open-ended.  The jurisdictional criteria for the grant of the indulgence are quite clearly circumscribed and are not mere formalities.  As the plaintiff in Abrahamse¹⁹ found to his cost, condonation may well be refused despite a hard-luck tale.

 

[15]     Viewing section 2(1)(a) of the Act in the context of the composite scheme consisting of (i) specific notice (ii) within a short period and (iii) with limited scope for condonation for non-compliance, it does constitute a material limitation of an individual’s right of access to a court of law under section 34 of the Constitution.

 

[16]     The enquiry must then turn to possible justification.  Can the limitation be justified under section 36(1) of the Constitution?  That section reads as follows:

 

(1)  The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including—

                        (a)        the nature of the right;

                        (b)        the importance of the purpose of the limitation;

                        (c)        the nature and extent of the limitation;

                        (d)        the relation between the limitation and its purpose; and

                        (e)        less restrictive means to achieve the purpose.

(2)  Except as provided in subsection (1) or in any other provision of the Constitution, no law may limit any right entrenched in the Bill of Rights.

 

[17]     It is by now settled law what a limitation exercise under section 36 of the Constitution requires.  In National Coalition for Gay and Lesbian Equality and Another v Minister of Justice and Others²⁰ the nature, purpose and process of the exercise were explained thus:

 

“[33]  Although s 36(1) of the 1996 Constitution differs in various respects from s 33 of the interim Constitution its application still involves a process, described in S v Makwanyane and Another as the ‘. . . weighing up of competing values, and ultimately an assessment based on proportionality . . . which calls for the balancing of different interests’.

 

[34]  In Makwanyane the relevant considerations in the balancing process were stated to include

‘. . . the nature of the right that is limited and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy and, particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question’.

The relevant considerations in the balancing process are now expressly stated in s 36(1) of the 1996 Constitution to include those itemised in paras (a) – (e) thereof.  In my view, this does not in any material respect alter the approach expounded in Makwanyane, save that para (e) requires that account be taken in each limitation evaluation of ‘less restrictive means to achieve the purpose (of the limitation)’.  Although s 36(1) does not expressly mention the importance of the right, this is a factor which must of necessity be taken into account in any proportionality evaluation.

 

[35]  The balancing of different interests must still take place.  On the one hand there is the right infringed; its nature; its importance in an open and democratic society based on human dignity, equality and freedom; and the nature and extent of the limitation.  On the other hand there is the importance of the purpose of the limitation.  In the balancing process and in the evaluation of proportionality one is enjoined to consider the relation between the limitation and its purpose as well as the existence of less restrictive means to achieve this purpose.”  (Footnotes omitted.)

 

[18]     It is also no longer doubted that, once a limitation has been found to exist, the burden of justification under section 36(1) rests on the party asserting that the limitation is saved by the application of the provisions of the section.  The weighing up exercise is ultimately concerned with the proportional assessment of competing interests but, to the extent that justification rests on factual and/or policy considerations, the party contending for justification must put such material before the court.  It is for this reason that the government functionary responsible for legislation that is being challenged on constitutional grounds must be cited as a party.  If the government wishes to defend the particular enactment, it then has the opportunity — indeed an obligation — to do so.  The obligation includes not only the submission of legal argument but placing before court the requisite factual material and policy considerations.  Therefore, although the burden of justification under section 36 is no ordinary onus, failure by government to submit such data and argument may in appropriate cases tip the scales against it and result in the invalidation of the challenged enactment.  Indeed, this is such a case.

 

[19]     The absence of evidence or argument in support of the limitation has a profound bearing on the weighing up exercise, the more so as the parties who chose to remain silent have special knowledge of provincial and local government administration.  The local government body directly involved in the litigation opted to make no representations in support of the constitutional validity of the special statutory protection on which it relied on at the trial.  Despite the Court’s invitation, neither the national government department responsible for provincial and local government, the spheres of government for whose benefit the Act is on the statute book, nor the national association of local government bodies entered the lists on behalf of the impugned provision.  Perhaps their conduct — or inaction — is due to the facts that were disclosed in affidavits deposed to by the Minister and the Director General in his department when the Minister was asked by the Court to instruct counsel to submit argument on the validity of section 2(1)(a) of the Act.  They revealed that the Act as a whole is likely to be repealed shortly.  Indeed, had it not been for the current litigation, a Bill²¹ which aims to replace the Act and has already been approved by the National Assembly, would probably have become law by now.

 

[20]     That Bill is based substantially on a draft annexed to the South African Law Commission’s report²² dating from 1985.  Several features of the report and of the Bill were alluded to in argument before us, the most significant being that the Law Commission found (and the House of Assembly accepted) that instead of a notice period of 90 days after the relevant occurrence, prospective claimants should be afforded a breathing space of six months to lodge notice of their claims.  In addition the Bill expands the scope of and relaxes the requirements for condonation for non-compliance with the notice requirement and is uniformly applicable to all government institutions. In the circumstances the reticence on the part of the governmental invitees when afforded an opportunity to defend such a moribund statute is understandable.

 

[21]     The Bill is not before this Court for evaluation, and it would not be appropriate to express any view on the reasonableness or otherwise of the notice period of six months and the criteria for condonation for which it provides.  But we cannot close our eyes to the circumstance that no cogent defence of the existing notice period has been forthcoming.  We are moreover entitled, if not obliged, to have regard to the fact that the Minister’s affidavit contains an extract from his speech in Parliament when introducing the Bill in which he expressed criticism of the Act and of the notice period.  Government does not seriously contend for the validity of section 2(1)(a) and has in the Bill opted for a substantially different scheme than that in issue here.  This is an indication that government and the experts advising it believe that a limitation as to the time for giving notice and the criteria for condonation could be less restrictive than that contained in section 2(1)(a) of the Act.

 

[22]     The practical and general policy considerations in support of prior notice of intended delictual claims against provincial or local government bodies also support the notice being sufficiently proximate to the precipitating incident to enable the government body effectively to investigate the claim and evaluate its validity and extent.  However, untrammelled access to the courts is a fundamental right of every individual in an open and democratic society based on human dignity, equality and freedom.  In the absence of such right the justiciability of the rights enshrined in the Bill of Rights would be defective; and absent true justiciability, individual rights may become illusory.  In Beinash and Another v Ernst & Young and Others²³ Mokgoro J, on behalf of a unanimous Court said:

 

“The right of access to courts protected under s 34 is of cardinal importance for the adjudication of justiciable disputes.  When regard is had to the nature of the right in terms of s 36(1)(a), there can surely be no dispute that the right of access to court is by nature a right that requires active protection.”

 

[23]     Applying the primary criteria enumerated in section 36 of the Constitution, the active protection of the right of this particular category of prospective litigants to approach a court for adjudication of their claims without the limitation contained in section 2(1)(a) of the Act outweighs the governmental interest concerned.  The section is not reasonably justifiable and the order of invalidation made by Hoffman AJ should be confirmed.

 

[24]     It is unnecessary to consider an alternative line of argument, based on the equality provisions in section 9 of the Constitution, that was pursued on behalf of the amicus.

 

Order

[25]     The order made by Hoffman AJ in the Witwatersrand High Court on 25 October 2000 declaring constitutionally invalid section 2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970 is confirmed.

 

 

 

Chaskalson P, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, Sachs J, Yacoob J and Madlanga AJ concur in the judgment of Somyalo AJ.

For the intervenor:                            LT Sibeko, instructed by the State Attorney, Johannesburg.

 

For the amicus curiae:                      AM Breitenbach and ML Norton, instructed by the Women’s Legal Centre, Cape Town.

CONSTITUTIONAL COURT OF SOUTH AFRICA

 

 

 

                                                                                                                           Case CCT 54/00

 

 

SIAS MOISE                                                                                                                  Plaintiff

 

versus

 

TRANSITIONAL LOCAL COUNCIL OF

GREATER GERMISTON                                                                                          Defendant

 

 

Delivered on  :           21 September 2001

 

 

JUDGMENT

 

 

 

 

KRIEGLER J:

 

 

[1]       On 4 July 2001 this Court confirmed an order made in the Witwatersrand High Court declaring invalid section 2(1)(a) of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970 (the section).  Shortly after the judgment and confirmatory order were handed down, an organisation that had been an amicus curiae in the confirmation proceedings[2] lodged an application for a variation of the order.  It submitted that instead of merely confirming the order, this Court ought to have added a provision making the order retrospective so as to apply to all extant actions that were not already time-barred when the Interim Constitution came into force on 27 April 1994.  The absence of such a qualification was, so it was alleged in a supporting affidavit, a “patent error or omission” in the order which (a) created “uncertainty as to its effect upon actions instituted but not finally determined at the time that the order was made” and (b) could be rectified by the Court under rule 28 of the Constitutional Court Rules read with rule 42(1)(b) of the Uniform Rules of Court.

 

[2]       The President of the Court invited the amicus to file written argument in support of its contentions and this has now been done.  No other representations have been received.

 

[3]       The amicus is to be commended for conscientiously raising in the public interest a perceived error in need of correction.  The Court is also indebted to Mr Breitenbach and Ms Cowen of the Cape Bar for the careful argument they prepared on behalf of the amicus.  Reconsideration of the order in the light of the application for variation and the argument filed in support thereof, however, demonstrates no need for any addition to the order.

 

[4]       In the first place it is doubtful whether it would be competent for this Court to amend the order, whether merely for purposes of clarification or to make additions.   Courts are generally not empowered to reopen their own cases once they have been finally concluded.  In Minister of Justice v Ntuli[3] Chaskalson P cited with approval the well-known passage in the judgment in the Firestone case[4] dealing with the  principles of our common law regarding subsequent alteration of judgments or orders.  The central proposition is that “once a court has duly pronounced a final judgment or order, it has itself no authority to correct, alter, or supplement it.”  As explained in the Firestone judgment,[5] there are four categories of exceptions to this general principle.  Of these, two are relevant here.  The first is that if a court is approached within a reasonable time it has the power to correct, alter or supplement its own judgment or order “in respect of accessory or consequential matters, for example, costs or interest on the judgment debt, which the Court overlooked or inadvertently omitted to grant.”  The second is that a court “may clarify its judgment or order, if, on a proper interpretation, the meaning thereof remains obscure, ambiguous or otherwise uncertain”.

 

[5]       Foundational to the first category of circumstances in which a court is empowered to correct, alter or supplement its own judgment is that something had been overlooked or inadvertently omitted in the formulation of the judgment and/or the order.  Here, however, there was no such oversight or error.  Although the amicus argued in this Court that the declaration of invalidity should be couched under the interim Constitution,[6] the plaintiff’s cause of action arose in 1998 and his challenge to the constitutionality of the section was quite clearly framed under the 1996 Constitution.  The plaintiff’s replication to the defendant’s special plea (raising as a defence that there had been no timeous written notice as required by the section) concluded with an averment that if indeed there had been no such notice “the Plaintiff alleges that Section 2(1)(a) of the Act is inconsistent with section 34 of the Constitution . . . and that such inconsistency is neither reasonable nor justifiable . . .”.  Section 34, of course, is the provision in the Bill of Rights guaranteeing the right of everyone “to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court . . .”.  That is the challenge that was debated in the High Court and although the order of that Court does not expressly spell it out in so many words,[7] that is the contention that was ultimately upheld.  It follows that the declaration of invalidity that served before this Court for confirmation under section 167(5) of the Constitution was that the section was fatally inconsistent with section 34 of the Constitution.

 

[6]       Notwithstanding the detailed and helpful argument presented on behalf of the amicus at the hearing, its basic submission that the constitutional validity of the section ought to be gauged according to its consistency with sections 8 and 22 of the interim Constitution and that the order of invalidity should be couched under the interim Constitution was not, strictly speaking, in point and was not accepted.  Nor, more pertinently, was its consequential submission that the order of invalidation should be backdated to 27 April 1994, when the interim Constitution came into force.  Neither inconsistency with that constitution nor retrospectivity to its inception had been raised or canvassed in the court below.  They had also not been addressed in the affidavits by and written argument on behalf of the Minister of Justice and Constitutional Development and the Director-General of Justice that had been filed in opposition to confirmation.  This Court focused on the question whether the section was indeed invalid on the ground identified by the High Court.  Having answered that question in the affirmative, a designedly unqualified order was made confirming the declaration of invalidity made in the High Court.  The case can therefore not be reopened on the ground that there was an inadvertent error in the formulation of the order.  It reads as it was intended to read.

 

[7]       Before leaving the discussion of judicial oversight as a basis for reopening a case to supplement a judgment or order, one further point should be stressed.  That is that nothing in this judgment should be understood as expressing any view on the question whether an order under section 98(6) of the interim Constitution or under section 172(1)(b) of the Constitution regulating the retrospectivity or any other aspect of an order invalidating a statutory provision falls within the purview of the “accessory or consequential matters” that can subsequently be added in cases of inadvertent omission.  That question is one of considerable complexity and general importance on which the Court did not have the benefit of argument and should therefore be slow to venture an opinion.  In the light of the conclusion that the application under the rubric of inadvertent omission must fail on the facts, it is however not necessary to pursue this line of enquiry.

 

[8]       The alternative basis upon which the amicus seeks to found its application for reopening in order to vary the order is, as it was put in the Firestone case,[8] because the order is “obscure, ambiguous or otherwise uncertain”.  The amicus lays considerable stress on this aspect, saying that the absence of any order regulating the retrospective effect of the declaration of invalidity will lead to uncertainty in three ways:

 

•           it is not clear whether the order operates retrospectively or prospectively;

•                     if the order operates prospectively, it is not clear whether it operates from the date of the order in the High Court or from the date of the order in this Court;

•                     if it operates retrospectively, it is not clear whether it operates from 4 February 1997 or 27 April 1994.

 

 

[9]               Is that indeed the case?  Does the order really leave room for the three possible constructions put on it by the amicus — and possibly for others?  In seeking the answer to these questions the logical starting point must be to interpret the order.  That would also accord with the precondition to the ambiguity exception identified by Trollip JA in Firestone[9] — “if, on a proper interpretation, the meaning . . . remains obscure . . .”.  In conducting such an interpretation exercise the context is of course crucial.  The context here is that the order to be interpreted was issued in proceedings for the confirmation of an order issued by another court, which latter order specified neither the constitution nor the specific section under which the declaration of constitutional invalidity was being made.  Yet the High Court’s order was not ambiguous.  It quite unequivocally related to the Constitution, from which that Court derived its power to invalidate and which was alleged in the replication — and found in the judgment — to be inconsistent with the section.  This order of invalidation by the High Court was confirmed without qualification in the order of this Court.  It is therefore clear that neither the order in the High Court nor the confirmatory order in this Court was in any way related to the interim Constitution.

 

It also follows that the date of inception of the interim Constitution, namely 27 April 1994, is irrelevant in this case.

 

[10]                      It should next be noted that the plaintiff’s replication specifically targeted the absolute requirement of the section that no legal proceedings could be instituted unless the prescribed written notice had been served.  The validity of the plaintiff’s cause of action was not in issue; nor was the case concerned with prescription or the statutory time-barring of that cause of action.  The defendant had raised a special statutorily created procedural bar to the institution of the action and it was that impediment and that impediment alone that was held to be inconsistent with the right to access to the courts guaranteed by section 34 of the Constitution.  The case therefore involved and resolved a purely procedural issue.  So much for the factual context in which the order falls to be interpreted.

 

[11]                      Proper interpretation of an order of court also entails determining the legal context within which the words in the order were used.  The order in question here related to invalidation in terms of the Constitution of a statutory provision that had been on the statute book before the Constitution came into force.  Upon examination that pre-constitutional provision was found to be inconsistent with the Constitution.  That brought into play a principle of law known as the principle (or doctrine) of objective invalidity.  In the context of declaring a statutory provision invalid for its inconsistency with a constitution that means that the declaration proclaims the finding that the inconsistency exists.  It also means that the inconsistency is proclaimed to have arisen and subsisted since first it arose.  Thus, in the case of an inconsistent statute antedating the Constitution, the inconsistency arose on 4 February 1997, when the Constitution came into force and its norms were superimposed on the existing legal system.  If a statute enacted after the inception of the Constitution is found to be inconsistent, the inconsistency will date back to the date on which the statute came into operation in the face of the inconsistent constitutional norms.  As a matter of law, therefore, an order declaring a provision in a statute such as that in question here invalid by reason of its inconsistency with the Constitution, automatically operates retrospectively to the date of inception of the Constitution.  As will be shown in the next two paragraphs, however, courts are given the power to qualify this effect of their orders of invalidation.

 

[12]                      This was made plain in the judgment of Ackermann J in the case of Ferreira v Levin,[10] where the objective theory of constitutional invalidity was first discussed by this Court.  Although there was some disagreement on other issues traversed in the judgment, this particular aspect enjoyed the support of the majority of the Court and has not been doubted since.  It does not matter that Ferreira v Levin was written at a time when the interim Constitution applied; the underlying legal principle remains.  Nor is the principle affected by a difference between the governing provisions of the two constitutions.  While, both constitutions are premised on this principle and both leave room for orders of invalidation to be accompanied by appropriate supplementary orders regulating their retrospectivity, there is a significant difference between their respective points of departure in that regard.  Under the interim Constitution[11] an order of invalidity could be ordered to be retrospective but if nothing was said it would, in the case of pre-constitution legislation such as the section, operate prospectively only.

 

[13]                      That position has been reversed under the 1996 Constitution.  The current position is that the Constitution assumes the full retrospective effect of constitutional invalidation and empowers the court declaring the invalidation to limit its retrospective effect.  Section 172(1) of the Constitution provides as follows:

“(1)      When deciding a constitutional matter within its power, a court —

(a)        must declare that any law or conduct that is inconsistent with the Constitution  is invalid to the extent of its inconsistency; and

(b)        may make any order that is just and equitable, including —

(i)         an order limiting the retrospective effect of the declaration of invalidity; and

(ii)        an order suspending the declaration of invalidity for any period and on any conditions, to allow the competent authority to correct the defect.”

 

Because the order of the High Court declaring the section invalid as well as the confirmatory order of this Court were silent on the question of limiting the retrospective effect of the declaration, the declaration was retrospective to the moment the Constitution came into effect.  That is when the inconsistency arose.  As a matter of law the provision has been a nullity since that date.

 

[14]                      To sum up: the order designedly and unequivocally operates retrospectively to 4 February 1997.  It is not possible to delineate the effect of such an order in other cases.  That will have to be done on a case by case basis.  There is therefore no reason to amend the order.

 

Order

[15]                      The application for variation of the order issued in this matter on 4 July 2001 is refused.

 

 

Chaskalson P, Langa DP, Ackermann J, Madala J, Mokgoro J, O’Regan J, Sachs J, Yacoob J, Du Plessis AJ and Skweyiya AJ concur in the judgment of Kriegler J.