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380 Chapter 16
legal decision making. These problems are best illustrated by focusing on
some of the jurisprudence of the Constitutional Court where it has adopted a
minimalist procedure: for the purposes of illustration we shall consider its case
law relating to the right of access to courts.
In Mohlomi v Minister of Defence 58 the Constitutional Court considered the
constitutionality of a provision of the Defence Act dealing with civil actions that
are instituted against the Defence Force. 59 The impugned section stipulated that
a civil action may only be launched within six months of the cause of action
arising and may only be instituted once a notice of intention to commence an
action is given to the defendant one month before the case is launched. The
applicant had failed to serve the relevant notice a full one month before
commencing the action for fear that the matter would exceed the six-month
prescription limit on instituting actions. The Court had to decide whether this
provision which placed time limits on when an action could be instituted
infringed the applicant’s right of access to court (section 22 of the interim
Constitution).
Didcott J found that what matters in deciding questions relating to the
right of access to courts was ‘the sufficiency or insufficiency, the adequacy or
inadequacy, of the room which the limitation leaves open in the beginning for the
exercise of the right. For the consistency of the limitation with the right depends
upon the availability of an initial opportunity to exercise the right that
amounts in all the circumstances that characterises the class of case in
question, to a real and fair one.’ 60 The judge took account of the realities of
South Africa where poverty and illiteracy abound and lead to a lack of
knowledge of law and access to legal representation. Consequently, he found
that the right of access to courts was infringed as individuals were provided with
too short a time in which to give notice and commence their claims. They had
not been provided with ‘an adequate and fair opportunity to seek judicial
redress for wrongs allegedly done to them’. 61 The Court also found that there
was no adequate justification for the limitation given that less restrictive means
(a longer time period) could have been adopted. 62 In analysing the right to
have access to court, we find a confusion in Mohlomi. Rights analysis is
supposed to take place in a two-stage process: The first stage involves deciding
whether the right has been violated and the second stage whether the limitation
on the right is justifiable. However, in Mohlomi, the Court, confusingly,
assumes a limitation is taking place but builds a test concerning the
adequacy thereof into the first stage of the enquiry. Yet, the
‘reasonableness’ and ‘justifiability’ of a limitation is precisely a matter that is
supposed to be determined at the second stage of the rights enquiry. The Court
appears to lack a deeper grasp of the differences between the two stages of
58
1997 1 SA 124 (CC).
59 Sec 113(1) of Act 44 of 1957.
60 Mohlomi (n 58 above) para 12.
61
Mohlomi (n 58 above) para 14.
62 Mohlomi (n 58 above) para 18.