Institution of Legal Proceedings against Organs of State Bill: Reason for Delay;Maintenance Courts Visits

SECURITY AND CONSTITUTIONAL AFFAIRS SELECT COMMITTEE
27 February 2002
INSTITUTION OF LEGAL PROCEEDINGS AGAINST ORGANS OF STATE BILL; MAINTENANCE COURTS VISITS

Chairperson: Chief Moekona

Relevant documents
Institution of Legal Proceedings Against Organs of State Bill [B65-99]
Justice Portfolio Committee minutes of 12 October and 12 September 2001 (see Appendix)

SUMMARY
The Director of Parliamentary Legislation in the Department of Justice briefed the Committee on the difficulties they are encountering in having the Institution of Legal Proceedings Against Organs of State Bill finalised.

A proposed visit by the Committee to the maintenance courts of the Eastern Cape and the North West Province was briefly discussed.

MINUTES
Institution of Legal Proceedings Against Organs of State Bill
Mr. De Lange, Director of Parliamentary Legislation, told the Committee that the Bill is dealing with legal technical issues that are complex. The Bill in its present form is deemed to be in conflict with the Constitution because it denies the individual the right to sue a State Department in a court of law and it is widely held belief that justice delayed is justice denied. There should also be no difference in terms of the prescription for the private sector and the public sector. Presently the Bill proposes that a person must give a State organ a notice period of six months in advance before taking any legal action against it but this is not applicable to the private sector.

A judgement was handed down by the Constitutional Court last year which recognizes the fact that the State needs some kind of protection and it retained the six months notice period but the court has a discretion to waive this in the interests of justice. In other words it justifies the limiting period but said it must be flexible and court still has discretion on the matter. Another hindrance as claimed by the Chairperson of the Portfolio Committee on Justice and Constitutional Development is that the Preamble of the Bill is not clear enough it and work needs to be done to make it more clear.      
 
Discussion
The Chairperson commented that now he has been briefed, he is in a better position to understand why there is a delay in processing the Bill.

Mr. De Lange said they now have three options: they either repeal or withdraw the Bill entirely or pass the Bill and have the Constitutional Court look at case by case but the correct way is to rationalise the Bill. The Bill should not be considered in its present form but after intensive investigation and debate which must ensue.

The Chairperson asked whether the Department is happy with the proposals made by the Chair of the Portfolio Committee.

Mr. De Lange replied that the Department is in agreement with the proposals.

Mr. Mkhalipi (ANC) said it was not clear to him whether the Bill had gone through the right channel or whether it could stand the test of the South African Court. He also wanted some clarification on the definition of contract, prescription and whether if under the Public Service Act, a public servant can sue the state and not be subjected to the six months time limit.

Mr. J DeLange referred the Member to the Training and Education Act No 90 of 1979 , which has been declared unconstitutional because of its time limit. The course of action must be instituted before the period lapses. Public servants may have a normal recourse through the Labour Relations Act.

Mr. Mkhalipi noted that he also served on the Select Committee on Local Government. He said they find themselves in a difficult situation and on several occasions they have considered litigation against the local authorities. He wanted to know the prospects of the Bill affording the municipalities some form of protection against litigation.

Mr. De Lange said the Bill does not cover Local Government.

The Chair noted that they have several options as a way forward: they could mandate the drafter, Mr De Lange, to come up with formal proposals for rationalising the Bill; or invite the Chairperson of the Justice Portfolio committee to address them or the two chairpersons could alone meet to discuss have a person to person discussions of the Bill.

Mr. De Lange said the first option is correct they can advise the Minister to withdraw or send the Bill back to the National Assembly.

Proposed Provincial visits to the Maintenance Courts of Eastern Cape & North West
The proposed dates for visits are between 11&15 March 2002 The Chairperson told Members that he has been advised by the Chairperson of Chairpersons that on their visits to the Provinces they must concentrate on the violation of human rights.

Mr. Makubo agreed with the notion that they should concentrate on human rights issues as outlined in State of the Nation address.

Ms Lubidla (ANC) asked Members whether they have a copy of the 2001 Annual Report of the Human Rights Commission, which can serve as a guide.

The Chairperson said if he can get hold of the copy of the report he will have it distributed to Members. He noted that they have an amount of R91 000.00 which must be used before 31 March 2002. They also have an agreement with Treasury that if funds have been committed but not yet spent, they will not be taken away.

Ms Lubidla agreed that they have been assured that the budget rollovers will not be taken provided it is assigned for use before the end of the financial year.

 and where to go will depend on them. The information he is having is that the week has been declared as the Committee Week and that is why he was confident that they will be allowed to utilize the week and he will make a formal proposal to the relevant office.

Ms Lubidla wanted more clarification on the visits whether they will split the delegation between the two provinces.

The Chairperson reminded Members of their decision not to split the delegation they either visit one Province or both as one delegation.

Ms Lubidla suggested that they visit both Provinces as they will not be spending the whole day in one place they are just going to do oversight and the Eastern Cape is a vast area.

Mr. Zulu suggested one Province and said the courts in the rural areas are scattered and usually usually proceedings start at 10am. The cities do have people who monitor human rights abuses.

Ms Lubidla said they are just going to visit Maintenance Courts where people are being treated badly by the Clerks as if the money is coming from them.  

Mr. Makubo seconded the motion by Zulu that they visit one place.

The Chairperson said, as the Two Provinces are poles apart they agree that they should take One Province per time.

Mr. Mkhalipi said they have to make sure that the Province they are visiting is a trouble spot.

The Chairperson revealed to Members that he has received a letter from the Eastern Cape delegation complaining about grants in Umtata and Kokstad areas because of the manner in which people are treated.

Ms Lubidla proposed that they start with the North West because it is not as vast as the Eastern Cape.

Mr. Makubo seconded the proposal that they start with the NorthWest.

The meeting was adjourned.                

Appendix 1:
JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
12 October 2001

Institution of Legal Proceedings against Organs of State Bill
At the commencement of the presentation, Advocate De Lange noted that the Bill had been passed by the National Assembly on the 28 September 2001. However, a number of grievances and concerns have been raised by various other Committees. He then handed over to Advocate Labuschagne to continue with the presentation.

Background to the legislation
Adv Labuschagne stated that the technicality and complexity of the Bill hampered its finalisation. In October 1985, the Law Commission submitted a paper to the Justice Portfolio Committee to amend all relevant provisions regarding prescription and the lapsing of time periods within which to inform or institute legal proceedings against an organ of state. However, as a result of numerous objections raised by certain organs of state, the Bill was never produced in Parliament.

In 1995, the Law Commission submitted a supplementary Bill containing a vast number of legislative changes, which was subsequently passed by Parliament in September 1999. The Portfolio Committee then redrafted the Bill, which was passed by the National Assembly in September 2000.

Adv Labuschagne noted that the reason for the delay in finalising this Bill was based on the controversial constitutional court judgement in the Moise case which had only been brought to the National Assembly's attention after the Bill had been passed. The Committee at the time then recommended that the Bill be kept in abeyance pending the outcome of the Constitutional Court's judgement in the Moise matter.

Clause 1
Adv Labuschagne outlined Clause 1 (1)(vii)(a), (b), (c), (d), explaining that the definition of the term "organs of state" incorporated national and provincial departments and a municipality. Also any functionary or institution exercising a power in terms of the Constitution as well as a Commissioner for the South African Revenue Services. Another important feature of the Bill was that the definition of "debt" expressly excluded debts arising out of contractual liabilities.

Clause 2
Clause 2(1) and Clause 2(2)(a) and (b) dealing with the prescription of debts, the amendment and repeal of laws as well as transitional arrangements were comprehensively explained to the Committee.

Clause 2(3) of the Bill, it was advised by Advocate Labuschagne, aimed at applying the Prescription Act to debts incurred prior to and after the enactment of the Bill. The aim and purpose of Clause 4(a) and (b) was to allow the expired portion of the prescription period of a debt to be deducted from the period of prescription as contemplated in terms of the Prescription Act.

In concluding the discussion on Clause 2 of the Bill, Advocate Labuschagne advised that although this Clause was of a very technical nature, its important aspect was that it contained the transitional periods of new debts after the commencement of the Bill.

Clause 3
As regards Clause 3 of the Bill it imposed a duty on a party to notify an organ of state of its intention to institute legal proceedings in writing and within a period of six months. It also allowed for a creditor to apply for condonation should the aforementioned requirements not have been complied with.

Clause 4 and 5
Adv Labuschagne advised that the content of Clause 4 of the Bill dealing with the service of notice and Clause 5 of the Bill dealing with the service of process were self-explanatory and proved non-problematic. This ended his explanation of the proposed amendments to the Bill.

Discussion
According to Adv De Lange one of the prevalent issues was that laws to be amended and repealed contained two objectionable views: firstly, the rules regarding prescriptive periods for an ordinary person and an organ of state was significantly different. And secondly, limitations were imposed on members of the public who wished to institute legal proceedings against an organ of state. He added that due to the vast mass of State administration, an organ of state must be placed in a position to decide sufficiently whether to impose legal proceedings or to settle out of Court.

Mr Lever (DP) asked firstly if Clause 3(3)(a) applied mutatis mutandis to Clause 2. The content of Clause 2 dealt with claims of a delictual nature. Hence, it would only be fair and equitable that a claimant should have had some kind of knowledge of the debt. And, that this requirement of a claimants knowledge and awareness be read simultaneously with the content of Clause 3(3)(a) of the Bill. Was this intended at the time of drafting these Clauses?
Advocate Labuschagne stated that he was unclear as to the answer and requested that he be allowed to research this aspect and revert to the Committee at a later stage.

Secondly he asked what was meant by "good cause" as contained in Clause 4(b)(ii) of the Bill.
Regarding Mr Lever's (DP) question on the term "good cause", Advocate Labuschagne advised that he foresaw no problems herewith and that it should be retained. This view was confirmed by the Portfolio Committee on its last meeting.

Thirdly, why was Clause 2 included at the commencement of the Bill and not at the end. He stated that his opinion was based on the view that Clause 2 of the Bill contained exceptions and therefore would best be placed at the end of the Bill.
Advocate Labuschagne advised that this particular section did not contain exceptions, instead its function was to regulate the prescription period of debts and the repeal of laws. It was not intended to be a sole conditional clause in the Bill. Additionally, that the placement of this Clause in the Bill had been done at the request of the Portfolio Committee.

The Chair then asked the Committee if there was any urgency in finalising the Bill and what the initial reaction of the Portfolio Committee was to the Constitutional Court's ruling in the Moise case.

Advocate De Lange replied that firstly there was no urgency in finalising the Bill and secondly that the Portfolio Committee had required a summary of the Moise judgement. Apart from this, the Portfolio Committee had raised a number of other issues which required adjustments in the Bill and which was still to be decided upon.

The Chair then stated that the definition of "debt" as contained in Clause 1(1)(iii) appeared to be problematic. An issue raised by the Portfolio Committee surrounding this definition was its failure to include debts arising from all causes of actions as contained in the Prescription Act. This was an issue that required review.

Mr Lever (DP) asked if in interpreting the Court would still be obliged to apply its own common law principles. Adv Labuschagne responded that when a court has to interpret a debt, it will do so by referring to Clause 2 and Clause 3.

Mr Lever (DP) why the State should be afforded special considerations since the justification of this Bill was based on the Moise matter? Adv De Lange once again emphasised that the personnel administration of an organ of state was mammoth in fulfilling this task.

Mr Lever (DP) asked if this Bill was a real necessity and expressed the opinion that it afforded organs of state an unfair advantage. Advocate De Lange's response to this question was that the merit of the Bill should be reviewed.

The Chair interjected and asked if it was advisable to continue with discussions and finalise the Bill or should the State Law Advisors be allowed to reconsider and research issues raised.

Advocate De Lange supported the second option and advised that the State Law Advisors be allowed to draft a supplementary report to be placed before the Committee at a later stage. Mr Lever (DP) supported this view.

The Chair advised that a number of issues in the Bill needed reconsideration and rethinking so as to give the Committee a clear guideline of what the Bill aimed to achieve.

The Chair asked the State Law Advisors to approach the Committee upon its completion of the final draft of the Bill.

JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
12 September 2001
CONSTITUTIONALITY OF INSTITUTION OF LEGAL PROCEEDINGS AGAINST ORGANS OF STATE BILL IN VIEW OF JUDGMENT ON LIMITATIONS ACT: DISCUSSION

Chairperson: Adv J H de Lange

Relevant Documents:
Constitutionality of Institution of Legal Proceedings against Organs of State Bill in view of the Decision in the Moise case (See Appendix)
Constitutional Court judgement at http://www.concourt.gov.za for Sias Moise v Greater Germiston Transitional Local Council & Minister of Justice & Constitutional Development
Institution of Legal Proceedings against Organs of State Bill [65B - 1999]

SUMMARY
The Committee discussed the Moise case in which section 2(1)(a) of the Limitation of Legal Proceedings Act was held to be unconstitutional. The Committee identified that the ninety day period within which a complainant needed to initiate an action was too restrictive. This provision of the Act was discussed in the light of the Institution of Legal Proceedings Against Organs of State Bill, which provided for a much less restrictive position.

The Committee also identified the fact that the unconstitutional finding was very specific to this case and that the principle of prescription of actions against the state was not inherently unconstitutional. No evidence had been led by the State, the party charged with the duty of justifying the limitation of the relevant right. The Chairperson expressed his dissatisfaction that the State had presented no evidence to the Constitutional Court. He identified this as a problem as this had happened more than twice in the present year.

MINUTES
The Justice Committee met to consider the Moise case which concerned the constitutionality of section 2(1)(a) of the Limitations of Legal Proceedings Act 94 of 1970. The Constitutional Court confirmed the finding of the lower court that the section was indeed unconstitutional. Mr Labuschagne, a drafter for the Department of Justice, explained that the section provided that no legal proceedings could be initiated against an administration unless the creditor has within ninety days from the day on which the debt became due, served a written notice of such proceedings. The section also provides for other formalities that would need to be observed. The Constitutional Court however found that these provisions were unconstitutional as they seriously limited the individual's right to access to the courts.

Mr Labuschagne pointed out that in paragraph nineteen of the judgment, the court stated that once a right such as this was subject to limitation, the burden to prove that the limitation is necessary and justifiable in an open and democratic society lies with that individual who seeks to limit the right. Mr Labuschagne pointed out that no evidence was led on behalf of the State. To this the Constitutional Court said that it would have to assume the worse and rule that the section was unconstitutional.

Adv de Lange commented that for this reason the ruling on this matter was very specific to this case but it was still important to know that there were certain principles that could be gleaned from the judgment.

Mr Labuschagne continued and said that the most significant feature of the Act was that it provided for a period of ninety days within which action needed to be taken. However, the Institution of Legal Proceedings Against Organs of State Bill [B 65B - 1999] provided for a period of six months within which action needed to be initiated. The Constitutional Court alluded to this Bill in the judgment saying that they could not comment on the constitutionality of the Bill as it was not before the court at that time. Despite this, Mr Labuschagne said it was his view that the Court said this Bill was less restrictive. Mr Labuschagne told the Committee that the Bill contained provisions that were in principle similar to those in the Limitations of Legal Proceedings Act, and if this latter Act failed to meet the constitutional benchmark then the Bill could too. He added that it would be hard to speculate on what would happen if the Bill were passed into legislation. He suggested that one possible solution to their problem would be to pass the Bill and see if anyone challenged it.

Here Adv de Lange said that the Constitutional Court had not been averse to the principle of prescription of actions against the state, but decided as it did on the facts of that case. It was important to remember that evidence had not been led by the state.

Mr Labuschagne agreed but said that here the most important question would be whether the six month period provided for in the Bill would be felt to be enough by the Constitutional Court.

Adv de Lange agreed but said that the period was not the only matter which needed to be examined. Of importance would be the period of prescription and the grounds for condonation.

Mr Labuschagne said that the Bill actually improved the position around these matters: it extended the period to a more reasonable six months and relaxed the requirements relating to condonation.

Adv de Lange told Mr Labuschagne that he felt that this was good work and a welcome change to the old position.

Dr J Delport (DP) said that he was satisfied that the position of the individual had been catered for sufficiently but asked why the interests of the State were ignored or at least not sufficiently provided for. Why is the administration always placed in a worse position and subject to stricter requirements even when the State has better records of relevant information? He suggested that the same principles around prescription which apply to other institutions should apply to the State. Then there would be one body of law governing prescription in relation to the State, companies and private individuals.

Adv de Lange said that there were important additional considerations which existed in the context of the State. The State is an attractive target for potential litigants. The Constitutional Court is not averse to the principle but the question is where the line will be drawn, beyond which actions will not be allowed.

Mr Labuschagne told the Committee that there were additional problems as the Bill provided specifically for matters falling into the realms of contract law and delict. The Bill however failed to mention other matters that might fall outside these established bodies of law. Adv de Lange added that the position of these matters would thus be unsure. He said that the Committee would have to speak to the NCOP (where the Bill is currently) to solve this shortcoming. When consulting with the NCOP the Committee would also need to establish, whether in the opinion of the NCOP, the Bill is technically flawless.

Dr Delport said that he supported the Chairperson in has views on the Bill but added that the Bill would be back before the Committee before long. Adv de Lange said that this would be fine as the Bill needed to be challenged as did the limitation of the right in the case. He said that this was an important part of the democratic process.

The meeting was adjourned.

Appendix:
CONSTITUTIONALITY OF INSTITUTION OF LEGAL PROCEEDINGS AGAINST ORGANS OF STATE BILL IN VIEW OF THE DECISION IN THE MOISE CASE

1. In Moise V Transitional Local Council of Greater Germiston and Others Case CCT 54/00, decided on 4 July 2001, the Constitutional Court confirmed a decision of the
Witwatersrand High Court declaring constitutionally invalid section 2(1)(a) of the Limitation of
Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970.

2. Section 2(1)(a) reads as follows:
(1) 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;

3. Section 34 of the Constitution of the Republic of South Africa, Act 108 of 1996 reads 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.

4. The court decided that viewing section 2(1)(a) in the composite scheme consisting of (i) specific notice, (ii) within a short period and (iii) with limited scope for condonation for non-compliance, it constitutes a material limitation of an individual's right of access to a court of law under section 34 of the Constitution. (Paragraph [16] of the Moise case. References to paragraph numbers in square brackets below are to paragraph numbers of this case.)

5. Once a limitation has been found to exist, the burden of justification under section 36(1) of the Constitution rests on the party asserting that the limitation is saved by the application of the provisions of the section. (Paragraph [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. (Paragraph [20].) Government does not seriously contend for the validity of section 2(1 )(a) and has in the Institution of Legal Proceedings Against Organs of State Bill 65B of 1999 (the "Bill") opted for a substantially different scheme than that in issue in the Moise case. 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. (Paragraph [22].)

6. The right of access to courts protected under section 34 is of cardinal importance for the adjudication of justiciable disputes and requires active protection. (Paragraph [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) outweighs the governmental interest concerned and the section is not reasonably justifiable. (Paragraph [24].) One of the criteria is that there are less restrictive means to achieve the purpose of the limitation. (Paragraph [17].)

7. The court did not express any view on the reasonableness or otherwise of the notice period of six months and the criteria for condonation for which the Bill provides. (Paragraph [22].) The most significant features of the Bill alluded to in argument before the court were 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. (Paragraph [21].) The notice in section 2(1)(a) has to contain significant information regarding the occurrence and of the damages allegedly suffered. (Paragraph [13].)

8. For ease of comparison some of the corresponding provisions of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act 94 of 1970 and the Bill are set out opposite each other in the table below (emphasis added by me):

Limitation of Legal Proceedings (Provincial and Local Authorities Act 94 of 1970
2.(1)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;
(b) before the expiration of a period of ninety days as from the day on which the notice contemplated in paragraph (a) was served on the debtor, unless the debtor has in writing denied liability for the debt before the expiration of such period;
(c) after the lapse of a period of twenty-four months as from the day on which the debt became due.

4. If a creditor has failed to comply with the provisions of paragraph (a) of subsection (1) of section 2 in relation to legal proceedings which he desires to institute and the debtor has not, within fourteen days after having been requested by the creditor to do so, in writing waived his right to invoke those provisions, the court having jurisdiction in respect of such legal proceedings may, notwithstanding those provisions but subject to the provisions of paragraphs (b) and (c) of that subsection (quoted above), grant to the creditor on his application and on such conditions as the court may deem fit, leave to serve the notice contemplated in the said paragraph (a) on the debtor after the lapse of the period prescribed in that paragraph, if the court is satisfied-

(a) that the debtor is not prejudiced by the failure; or
(b) that by reason of special circumstances the creditor could not reasonably have been expected to serve the notice within that period.

Institution of Legal Proceedings against Organs of State Bill 65B of 1999
3. (1) No legal proceedings, for the recovery of a debt may be instituted against an organ of state unless -
(a) the creditor has given the organ of state in question notice in writing of his or her or its intention to institute the legal proceedings in question; or
(b) the organ of state in question has consented in writing to the institution of legal proceedings without such notice.
(2) A notice must -
(a) within six months from the date on which the debt became due, be served on the organ of state in accordance with section 4(1); and
(b) briefly set out -
(i) the facts giving rise to the debt; and
(ii) such particulars of such debt as are within the knowledge of the creditor.

4.(1) A notice must be served on an organ of state by delivering it by hand or by sending it by certified mail, or, subject to subsection (2), by sending it by electronic mail or by transmitting it by facsimile, in the case where the organ of state is-...
[followed by the official who should receive notice in each case]
5. (2) No process... may be served before the expiry of a period of 30 days after the notice, where applicable, has been served on the organ of state...
3.(4)(a) If an organ of state relies on a creditor's failure to serve a notice in terms of subsection (2)(a), the creditor may apply to a court having jurisdiction for condonation of such failure.
(b) The court may grant an application referred to in paragraph (a) if it is satisfied that-
(i) thedebt has not been extinguished by prescription;
(ii) good cause exists for the failure by the creditor; and
(iii) the organ of state was not unreasonably prejudiced by the failure.
(c) If an application is granted in terms of paragraph (b), the court may grant leave to institute the legal proceedings in question, on such conditions regarding notice to the organ of state as the court may deem appropriate.

9. The main difference between the provisions quoted in the table is the doubling of the "short" (paragraph [16]) or "very limited" (paragraph [13]) period of a "mere 90 days" (paragraph [14]) to six months. The waiting period of 90 days in section 2(1)(b) will be reduced to 30 days in terms of clause 5(2) of the Bill. The prescription period is 2 years in terms of section 2(1 )(c) of the Act, but the ordinary period, of at least three years, will apply in terms of clause 3(4)(b)(i) of the Bill. Where any prejudice for the debtor would exclude the ground for condonation in section 4(a), only unreasonable prejudice would suffice for clause 3(4)(b)(iii) of the Bill. "Good cause" for failure in clause 3(4)(b)(ii) of the Bill is probably wider than that "by reason of special circumstances the creditor could not reasonably have been expected" to comply in section 4)(b). However, all the requirements in clause 3(4)(b) must be satisfied to qualify for condonation under the Bill while proof of any of (a) or (b) in section 4 will suffice.

10. Mainly as a result of the absence in the Moise case of evidence or argument in support of the limitation in section 2(1)(a), the decision gives very little guidance on the constitutionality of the Bill. In view of the similarities between the Act and the Bill there is a possibility that it would be found that the Bill also constitutes a material limitation of an individual's right of access to a court of law under section 34 of the Constitution. In order to determine constitutionality a balancing of interests must 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. ([35] quoted in paragraph [18].)

11. Although the court did not express any view on the reasonableness or otherwise of the notice period of six months and the criteria for condonation for which the Bill provides, the decision of the court seems to imply that the provisions of the Bill are less restrictive than section 2(1)(a). (Paragraph [22].) On balance a conclusion that the Bill is less restrictive seems justified. It is difficult to predict what the court will decide on the constitutionality of provisions contained in the Bill, but it will undoubtedly make a substantial difference if constitutionality is argued vigorously before the court and no less restrictive means to achieve the purpose of the Bill are under consideration by government. The only way to ensure constitutionality would be to remove all the special requirements for the institution of legal proceedings against organs of state. However, this would only be an option if it is accepted that special requirements cannot be justified. During its considerations the Portfolio Committee was satisfied that special requirements are justified.

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