Amnesty Hearings — Sebokeng — 1998-07-14

MR BERGER: Okay, I have no difficulty with both sections being at the core of this particular problem and the proper interpretation of both sections.  Section 19, the section that you refer me to, does use the word "upon receipt of any application for amnesty" and then talks about the Committee returning the application to the applicant and giving such directions in respect of the completion and submission of the application.  It doesn't talk about re-submission of the application, the application - when an application is submitted, in our submission it must be a valid application.  Now the use of the word "any", my learned friend for the applicants says in his heads of argument that any means any and therefore includes invalid applications as well.  Chairperson, there is a case referred to in my heads at page 5, paragraph 16 - "Minister of Safety and Security versus Malutsi and another".  Now whilst it's authority for the proposition that I make in that paragraph, it's also authority for the proposition that "any" doesn't necessarily mean "any" -the law reports, Chairperson, as you will know, are repleted cases which say that "shall" does not always mean "shall" , "and" doesn't always mean "and" and so on, one has to look at it in it's proper context.  Now in the Malutsi case, if I could very briefly state what happened.  Mrs Malutsi instituted action against the Minister of Safety and Security for damages arising out of the death of her husband.  Her husband was shot and killed by a policeman.  Initially it was alleged that that policeman shot and killed the deceased acting within the course and scope of his duties as a policeman.  It became apparent just before trial that perhaps that cause of action wasn't going to be successful and another - well it was argued that it was an extension of the cause of action but the court found it was a new cause of action - was found - which said that it was negligent for the Minister or for the police to have issued this particular policeman with a gun and therefore and that negligence - the policeman had a criminal record - and therefore that negligence led to the death of the deceased.  The reliance was placed - you will recall there was Section 32 of the Police Act that said if you didn't issue a letter in terms of Section 32 out one month before you issued summons, in which you set out the cause of action, you were forever time barred and your cause of action had to be started within six months - your summons had to be issued within six months.  A proclamation had been issued by the Minister of Safety and Security prior to that which repealed Section 32 and included a new provision, Section 17, which said "any cause of action" and again used the word any, "which arose prior to the coming into operation of this proclamation will now be governed by the terms of this proclamation" and the proclamation gave the courts the discretion to condone non-compliance with Section 32, it was now Section 17, you could institute action within a year but even if you didn't do that, as long as it was in the interests of justice, the court could dispense with the requirements of that section, whereas previously, under the old legislation, the court - once the time bar came down in terms of Section 32, that was the end of it and the courts had no power to condone and it was argued on behalf of Mr Malutsi, that any cause of action meant exactly what it said, "any cause of action".  It was found by the Appellate Division, Chief Justice Corbett at the time said the following at page 97 of this judgement, he said "The proviso which makes Section 17 applicable speaks of all such causes of action"  This refers back to the opening words of paragraph 1, quote "any cause of action."
   "Any" is an all embracing term and then there's a quote from N.S.J.A. "In it's natural and ordinary sense, 'any', unless restricted by the context, is an indefinite term which includes all the things to which it relates."
	Chief Justice Corbett continued:  "The critical question in this case is whether any cause of action in the opening part of paragraph (i) should be given an all inclusive or a restrictive meaning.  Should the term be interpreted to comprehend cases where prior to the commencement of the proclamation the claimant in respect of a cause of action which arose against the police force had not complied with the requirements of Section 32 and as at the commencement of the proclamation time had run out or should it be read to restrict it's provisions to such cases where as at the commencement of the proclamation, time had not yet run out.  For convenience, I shall refer to these respectively as the extensive interpretation and the restricted interpretation" and the court finally came to the conclusion that any cause of action did not mean "any cause of action" it meant any cause of action that was still valid.
	I'm sorry, I'm being told that I'm speaking too fast for the interpreters, I'll slow down.
	The sum total of everything that I've said up to this point is that any cause of action in that statute was interpreted in it's context to mean "any cause of action which was still valid".

CHAIRPERSON: But isn't the key question the passage that you've read, that is the word "any", given it's ordinary meaning, is an indefinite terms which refers to all that it refers to unless it is restricted by the context in which it occurs and the enquiry here must be whether, in the context in which it occurs, in Section 19, is it to be given the broad or the restrictive interpretation?  Isn't that the essence of the matter?

MR BERGER: Yes, but in the Malutsi decision, unless it is qualified by it's context, was a quote back to words used by N.S.J.A.  Yes, but the finding in Malutsi was as I have set out in our heads of argument, the actual wording of the section and the proclamation as a whole, did not in it's context restrict the meaning of the word "any", it did not.

CHAIRPERSON: I don't know whether you understand what I'm saying, what I'm saying is that the enquiry here is whether the word "any" in the provision in which it occurs in Section 19, is restricted.  In the case that you've cited, the court found that it was not or that it was, whatever the finding was?

MR BERGER: That is was restricted.

CHAIRPERSON: It was restricted - but the court had to interpret that in the context in which it occurs.

MR BERGER: The court came to the conclusion that "any" in that case was restricted because of competing rights, because of vested rights.

CHAIRPERSON: Yes I understand that.

MR BERGER: That was the context, not the context of the legislation, but the context in which the legislation applied.

CHAIRPERSON: Is it the enquiry here whether "any" is restricted, that is what I'm trying to find out from you?

MR BERGER: Chairperson, our submission is that that is not decisive, that's what I'm trying to explain.

CHAIRPERSON: Okay.