THE SUPREME COURT OF APPEAL OF SOUTH AFRICA
JUDGMENT
Reportable
Case No: 1222/2017
In the matter between:

TIMOTHY FANFANI MABASO

APPELLANT

And

NATIONAL COMMISSIONER OF POLICE
FIRST RESPONDENT
MINISTER OF POLICE

SECOND RESPONDENT

Neutral citation:
Mabaso v National Commissioner of Police & another
(1222/2017) [2019] ZASCA 43 (29 March 2019)

Coram:
Navsa AP, Van der Merwe, Makgoka JJA and Mokgohloa and Eksteen
AJJA
Heard:
21 February 2019

Delivered:
29 March 2019
Summary:
State – actions against – s 3 of the Institution of Legal Proceedings
Against Certain Organs of State Act 40 of 2002 – interpretation thereof – whether by
necessary implication there is a duty on an organ of state receiving notice in terms of
s 3 to make a decision to accept, reject or settle claim prior to commencement of
litigation.

___________________________________________________________________

ORDER
___________________________________________________________________

On appeal from: Western Cape Division, Cape Town (Le Grange J) sitting
as court of first instance:
1  The appeal is dismissed with no order as to costs.
2  The order of the court a quo is amended to read as follows:
‘The application is dismissed with no order as to costs.’
___________________________________________________________________
JUDGMENT
___________________________________________________________________
Makgoka JA (Navsa AP, Van der MerweJA and Mokgohloa and Eksteen AJJA
concurring)
[1] Section 3(1)(a) of the Institution of Legal Proceedings Against Certain Organs
of State Act 40 of 2002 (the Act) provides that no legal proceedings for the recovery
of a claim may be instituted against an organ of state unless  the claimant has given
written notice to such an organ of state of his or her or its intention to institute such
legal proceedings. In terms of s 3(2)(a) of the Act, such notice must be given within
six months after the claim (styled ‘debt’) became due. The specific organ of state in
this instance is the department of police, nominally represented by the second
respondent, the Minister of Police (the Minister), and the first respondent, the
National Commissioner of Police (the Commissioner).
[2] The issue in this appeal is whether an organ of state receiving such notice is
obliged to make a decision on whether to accept, reject or endeavor to settle the
claim prior to litigation, and to provide reasons to a claimant for such decision. The
court a quo, the Western Cape Division of the High Court, answered that question in
the negative, and dismissed with costs, the appellant’s application seeking a
declaratory order to that effect. The appeal is with the leave of the court a quo.

Factual background
[3] The facts are straightforward. On 10 June 2015 the appellant, Mr Timothy
Mabaso, through his attorneys, gave notice in terms of s 3(1)(a) of the Act to the
Commissioner, of his intention to institute a damages claim against the Minister.1 It is
common cause that the notice was served within the six months period prescribed in
s 3(2)(a) of the Act. In that notice, it was alleged that following his arrest and
detention on 20 February 2015, the appellant had been assaulted by the police
whilst in custody. A sum of R400 000 was claimed for general damages and for loss
of earnings, payable within 14 days.
[4] There was no response to the notice, nor to a subsequent letter dated 13 July
2015. In the latter correspondence, instead of payment, it was demanded of the
Commissioner to take a decision within 14 days as to whether he admitted liability.
The Commissioner was given until 7 August 2015 to make that decision, failing
which an application would be brought to ‘enforce our right to a decision from you.’
There was similarly no response to that letter, and further correspondence yielded no
substantive answer.

[5] As a result, on 2 December 2015, the appellant launched an application in the
court a quo for the following relief: a declarator that the respondents have an
obligation to take a decision to accept, reject or settle the claim; a concomitant order
in terms of the Promotion of Administrative Justice Act 3 of 2000 (the PAJA), for the
review and setting aside, of the respondent’s failure to take the decision; and an
ancillary order directing the respondents to take a decision and inform the applicant
thereof, within 14 days of service of the order, with ‘full and suitable written reasons
therefor’. As stated already, the application was dismissed. The court a quo
reasoned that, given the context and purpose of the provisions of the Act, it could not
have been intended by the legislature to create a duty on the respondents to take a

1 The notice is addressed to the National Commissioner of Police in terms of s 4(1) of the Act, which
provides that in the case of the Department of Police, the notice must be sent to the National
Commissioner and the Provincial Commissioner of the province in which the cause of action arose, as
defined in s 1 of the South African Police Service Act 68 of 1995.

decision to accept, reject or endeavour to settle claims pursuant to a s 3 notice, prior
to commencement of litigation.
Mootness
[6] At the commencement of the proceedings before us, we enquired of the
parties whether the action contemplated in the notice in terms of s 3 had already
been instituted. We were informed that summons had been issued and served on
the department in November 2017, and that the action was being defended.
Subsequent to the hearing, on 6 March 2019, the appellant’s attorney formally filed a
notice in which the following was confirmed: given that the claim would have
prescribed on 20 February 2018, summons was issued on 24 November 2017 and
served on 29 November 2017; a notice of intention to defend was served on 6
December 2017; the department had delivered its plea on 18 October 2018, and a
trial date has not yet been allocated.
[7] In light of this, the question of mootness arises. Simply put, it now appears
that the department has decided to repudiate the claim. In conventional terms, thus,
strictly speaking, there is no need to compel the department to make a decision.
Section 16(2)(a) of the Superior Courts Act 10 of 2013 provides that:
‘(i)
When at the hearing of an appeal the issues are of such a nature that the decision
sought will have no practical effect or result, the appeal may be dismissed on this
ground alone.
(ii)
Save under exceptional circumstances, the question whether the decision would
have no practical effect or result is to be determined without reference to any
consideration of costs.
[8] Generally, courts do not decide issues of academic interest only. In Radio
Pretoria v Chairman, Independent Communications Authority of South Africa &
another 2005 (1) SA (SCA) para 41 it was pointed out that courts ‘decide real
disputes and do not speculate or theorise’ and that ‘statutory enactments are to be

applied to or interpreted against particular facts and disputes and not in isolation.’
This court has repeated this on a number of occasions.2
[9] However, there is a caveat to the general principle. A court has a discretion to
enter into the merits of an appeal, notwithstanding the mootness of the issue as
between the parties, where, as was put in Qoboshiyane NO & others v Avusa
Publishing Eastern Cape (Pty) Ltd & others [2012] ZASCA 166; 2013 (3) SA 315
(SCA) para 5, when ‘a discrete issue of public importance arose that affect matters in
the future’ and on which adjudication of this Court is required.3 The Constitutional
Court summed up the approach thus in Ferreira v Levin NO & others; Vryenhoek &
others v Powell NO & others 1996 (1) SA 984 (CC); 1996 (1) BCLR 1 (CC) (Ferreira)
para 164:
‘[I]n an adversarial system decisions are best made when there is a genuine dispute in which
each party has an interest to protect. There is moreover the need to conserve scarce judicial
resources and to apply them to real and not hypothetical disputes. …These objections do
not apply to the present case. The applicants have a real and not hypothetical interest in the
decision. The decision will not be academic; on the contrary it is a decision which will have
an effect on all s 417 enquiries and there is a pressing public interest that the decision be
given as soon as possible.’
See also Laugh It Off Promotions CC v South African Breweries International
(Finance) BV t/a Sabmark International and another [2005] ZACC 7; 2006 (1) SA
144 (CC); 2005 (8) BCLR 743 (CC) para 28, where the Constitutional Court, in
deciding to hear a matter which had become moot by the time it reached that court,
considered the matter to have ‘important and abiding implications for the workings of
our economy’ and of concern to the broader public.

2 See Premier, Provinsie Mpumalanga, en 'n Ander v Groblersdalse Stadsraad 1998 (2) SA 1136
(SCA) 1141D-E; Rand Water Board v Rotek Industries (Pty) Ltd 2003 (4) SA 58 (SCA) para 26; Coin
Security Group (Pty) Ltd v SA National Union for Security Officers & others 2001 (2) SA 872 (SCA)
para 9; Port Elizabeth Municipality v Smit 2002 (4) SA 241 (SCA) para 7; Legal Aid South Africa v
Magidiwana & others [2014] ZASCA 141; 2015 (2) SA 568 (SCA); [2014] 4 All SA 570 (SCA) para 2.
3 See further Natal Rugby Union v Gould 1999 (1) SA 432 (SCA) at 444I-J and 445A-B; Land and
Landbouontwikkelingsbank van Suid Afrika v Conradie 2005 (4) SA 506 (SCA) para 14; The Merak S:
Sea Melody Enterprises SA v Bulktrans (Europe) Corporation 2002 (4) SA 273 (SCA) para 4; Van
Staden & others NNO v Pro-Wiz (Pty) Ltd [2019] ZASCA 7 paras 4-5.

[10] In this case, despite the matter being moot between the parties, the
interpretive issue raised in the appeal is of importance, involving as it does, the
statutory responsibilities of an organ of state and the rights of prospective litigants
who give notice of a contemplated litigation.  Should the appellant succeed, the
decision will have serious implications for how organs of state deal with the notices
of the kind in question. There will of course also be attendant logistical and
management issues that will arise. Furthermore, the appeal concerns a discrete
legal issue – the interpretation of s 3 of the Act. It is therefore my view that the
appeal should be entertained.
Background and purpose of the Act
[11] It is useful to have regard to the background and purpose of the Act. As noted
in Minister of Safety and Security v De Witt [2008] ZASCA 103; 2009 (1) SA 457
(SCA) para 1, the Act followed on the judgments of the Constitutional Court in
Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) and Moise v Greater
Germiston Transitional Local Council: Minister of Justice and Constitutional
Development Intervening 2001 (4) SA 491 (CC); 2001 (8) BCLR 765 (CC) in which
onerous limitation provisions relating to notices to be given in respect of
contemplated litigation against the state were found to be inconsistent with the right
of access to courts and declared invalid. The advent of the Act was foreshadowed in
Moise paras 20-22.
[12] As to its purpose, the long title to the Act states it as being ‘[T]o regulate
prescription and harmonize the periods of prescription of debts for which certain
organs of state are liable; to make provision for notice requirements in connection
with the institution of legal proceedings against certain organs of state in respect of
recovery of debt.’ The Act repealed several statutes that had previously regulated
proceedings against various state organs, including the police, defence force and
local authorities.  In the preamble, there is, amongst others, reference to the right of
access to courts as enshrined in s 34 of the Constitution, and justifiable limitations
thereon in terms of s 36 of the Constitution.
Rationale for limitation provisions

[13] It must be emphasised that provisions such as s 3, as correctly observed in
Mogopodi, are designed primarily for the benefit of organs of state, rather than
prospective litigants. This view is fortified by the decisions of this court in relation to s
32 of the repealed Police Act. The provisions of that section, which were analogous
to s 3, were held to have been designed for the benefit of the police rather than the
prospective plaintiff. 4 The Constitutional Court adopted this view in Mohlomi para 7.
And, in Moise para 10 it was stated that the object of similar statutory provisions is
‘to protect the interests of the defendants.’ In Madinda v Minister of Safety and
Security [2008] ZASCA 34; [2008] 3 All SA 143 (SCA); 2008 (4) SA 312 (SCA) at
para 7 this court adopted the view in relation to s 3.
[14] In Mohlomi, para 9, Didcott J explained the general purpose of clauses such
as s 3(1):
‘The conventional explanation for demanding prior notification of any intention to sue an
organ of government is that, with its extensive activities and large staff which tends to shift, it
needs the opportunity to investigate claims laid against it to consider them responsibly and
to decide, before getting embroiled in litigation at public expense, whether it ought to accept,
reject or endeavour to settle them.’
[15] Similarly, in Mogopodi v Member of the Executive Council for the Free State
[2008] ZAFSHC 38, the Free State High Court reiterated this purpose when it said at
para 7 that the underlying purpose for the giving of notice in terms of s 3 of the Act
was one of convenience in order to assist the particular organ of state to conduct
proper investigations into the claim and then to decide whether to make payment or
defend the intended action.
[16] It is against this backdrop that I consider the appellant’s assertions as to the
purpose of s 3. Counsel for the appellant submitted, with reference to the passages
in Mohlomi and Mogopodi, referred to above, that the purpose of s 3 is to create an
obligation on an organ of state to make a decision on whether to accept or repudiate
a claim prior to litigation.  It must be pointed out that whether an organ of state has

4 See Minister van Polisie en ŉ ander v Gamble en ŉ ander 1979 (4) SA 759 (A) at 770 C; Hartman v
Minister van Polisie 1983 (2) SA 489 (A) at 497H-498C; Minister van Wet en Orde en ‘n ander v
Hendricks 1987 (3) SA 657 (A) at 662E-663G.

an obligation to make a decision pursuant to a notice in terms of s 3, did not arise in
either of the two cases.
[17] Mohlomi concerned the validity of s 113(1) of the Defence Act 44 of 1957. The
subsection limited to six months, the period within which actions against the Minister
of Defence relating to the conduct of members of the defence force had to be
instituted after the cause of action arose. And, a notice had to be given to the
Minister one month before the commencement of the action. The subsection was
found to constitute an unjustifiable infringement of the right of access to courts, and
was accordingly declared invalid. In Mogopodi the issue was whether the notice
given complied with s 3. The remarks in the passages referred to were thus made in
passing. It is in that context the passages should be understood. They have no
bearing on the interpretation of the provisions of s 3.

The relevant provisions of the Act
[18] It is convenient now to consider the relevant provisions of the Act. As stated
above, s 3(1)(a) provides that no legal proceedings for the recovery of a claim may
be instituted against an organ of state unless  the claimant has given written notice
to such an organ of state of his or her or its intention to institute such legal
proceedings. As previously stated, in terms of s (3)(2)(a) such notice must be served
on the organ of state within six months from the date on which the claim became
due. That notice must, in terms of s 3(2)(b)(i) and (ii), briefly set out the facts giving
rise to the claim, and such particulars as are within the knowledge of the claimant.
[19] Section 3(4) empowers a court, on application, to condone a failure by a
claimant to serve a notice, either timeously, or at all. It is clear that s 5(2), set within
the architecture of the Act, contemplates that an indication of repudiation of liability
might be given before the expiry of the 30 day period, ie before litigation. It is equally
clear that there is no obligation in the subsection on the state during that period to
make such a decision. However, should an organ of state repudiate liability before
the expiry period, the claimant may commence litigation upon such repudiation.
Interpretive framework

[20] A resolution of the present dispute requires a consideration of a proper
construction of s 3 of the Act, read contextually. The principles which should inform
that exercise are trite. The starting point is the Constitution. It commands courts in s
39(2), when interpreting any legislation, to promote the spirit, purport and objects of
the Bill of Rights. Courts must also adopt a generous and purposive approach as
explained in Ferreira para 46.
[21] There is no express provision in s 3 that places an obligation on an organ of
state to make a decision concerning the contemplated legal proceedings prior to it
being instituted, as contended for by the appellant. Such an obligation can only be
found by reading the provision by implication into the section. As observed by
Corbett JA in Rennie NO v Gordon & another NNO 1988 (1) SA 1 (A) at 22D-F,
words cannot be read into a statute by implication unless the implication is a
necessary one in the sense that without it effect cannot be given to the statute as it
stands. See also Palvie v Motale Bus Service (Pty) Ltd 1993 (4) SA 742 (A) at 749C.
This important injunction received the imprimatur of the Constitutional Court in
Bernstein & others v Bester NO & others 1996 (2) SA 751 (CC) para 105.5

The appellant’s case
[22] Counsel for the appellant submitted that s 3 should be read so as to oblige an
organ of state to make a decision subsequent to receipt of a notice in terms of s 3,
and prior to litigation. He submitted that this interpretation of s 3 was one which
followed by necessary implication. For this, counsel relied on the following: the right
of access to courts guaranteed in s 34 of the Constitution; the provisions of the
PAJA; alleged comparable legislation; and implications for the Independent Police
Investigative Directorate Act 1 of 2011 (the IPID Act), which, it was said, go together
with constitutional norms of accountability and responsiveness. I consider them in
turn.

5 See Geuking v President of the Republic of South Africa 2003 (3) SA 34 (CC); 2004 (9) BCLR 895
(CC) para 20; NDPP v Mohamed 2003 (4) SA 1 (CC); 2003 (5) BCLR 476 (CC) para 48; Masetlha v
President of the Republic of South Africa [2007] ZACC 20; 2008 (1) SA 566 (CC); 2008 (1) BCLR 1
(CC) para 192.

Section 34 of the Constitution
[23] Section 34 of the Constitution 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.’
[24] It was submitted on behalf of the appellant that the limited period within which
the s 3 notice must be given, implicates the claimant’s right to access to courts
contained in s 34 of the Constitution. Therefore, it was argued, s 3 should be
construed so as to impose a duty on an organ of state to make a decision whether to
settle the claim pursuant to the notice. In this way, counsel submitted, access to
courts is facilitated, rather than hindered. It was furthermore contended that the right
enshrined in s 34 includes the right to have a matter where possible, resolved
without resort to litigation.
[25] In this regard, counsel pointed to the appellant’s personal circumstances. He
is indigent and therefore was unable to proceed with litigation, unless assisted pro
bono. He would benefit from an early decision by the department to settle his claim
without him engaging in costly litigation. In these circumstances, so the submission
went, absent a duty to make a decision, the effect of s 3 would be diluted, and the
limitation of the appellant’s right to have a dispute decided in an open court would be
unjustified. This, it was contended, severely limited the appellant’s right of access to
courts.
[26] There is no constitutional challenge to the validity of s 3. It must also be borne
in mind that s 3 envisages that in the event of a claim being repudiated, the dispute
would be fully ventilated before a court of competent jurisdiction. Against that
background, it is difficult to understand how s 34 of the Constitution supports the
appellant’s case. If anything, s 3 preserves the appellant’s right to have his case
adjudicated by court. It is thus difficult to see, as contended for by the appellant, how
a litigant’s right is frustrated thereby. As pointed out above, s 5(2) of the Act affords
the state an opportunity to repudiate liability to a claimant, but it certainly does not
oblige it to respond during the 30 day period.

[27] It is plain that the dispute envisaged in s 34 is one in respect of which legal
proceedings have been instituted, and is therefore capable of resolution by the
application of law in a ‘. . . public hearing before a court.’ At the stage when a s 3
notice is given, and until legal proceedings are instituted, there is no adjudicable
‘dispute’. It follows that s 3 does not implicate the right of access to courts.
The PAJA
[28] I turn now to deal with the appellant’s reliance on the provisions of the PAJA.
The essence of the appellant’s case in this regard is that s 3 compels an organ of
state to make payment or timeously repudiate liability. The appellant recognises that
the Act does not prescribe a period within which the department must make this
decision, hence reliance on the PAJA. It was contended that s 6(3)(a) of the PAJA
comes into play. That section provides that if any person relies on the ground of
review referred to in section 6(2)(g) and the relevant law (as in this case) does not
prescribe a period within which the administrator is required to take that decision,
and the administrator has failed to take the decision it is duty bound to take, that
person may institute proceedings for review on the ground that there has been
unreasonable delay in taking the decision.
[29] It was submitted that since a reasonable period of time had elapsed from the
giving of the notice the appellant was entitled to a declaratory order. Furthermore, s
8 of the PAJA, so it was asserted, was of assistance to the appellant. Section 8(2)
provides that a person who relies on any ground of review may seek an order,
among others, directing the taking of the decision. The appellant’s case fails at the
first hurdle. As demonstrated above, neither s 3 nor   s 5, or any other provision of
the Act, compels a decision prior to the 30 day period.
[30] In any event, the department’s failure to make a decision pursuant to a s 3
notice, does not affect any right of the appellant, let alone adversely. The appellant’s
right to institute legal proceedings is fully reserved, subject only to the limitation
period in s 5(2). As explained by Froneman J in Hunter v Financial Sector Conduct
Authority & others [2018] ZACC 31; 2018 (6) SA 348 (CC); 2018 (12) BCLR 1481
(CC) para 105, a failure to investigate does not meet the PAJA criterion. Applied to

the present case, it follows that the PAJA is not applicable to the department’s failure
to investigate the appellant’s claim and make a decision on whether to accept or
repudiate liability. Reliance on the provisions of the PAJA is thus misplaced.
Alleged comparable legislation
[31] Principally, the appellant relied on some provisions of the Road Accident Fund
Act 56 of 1996 (RAF Act) and its regulations. He asserted that, because those
provisions have been found to place an obligation on the Road Accident Fund (the
Fund) to investigate claims submitted to it and decide whether to accept or repudiate
liability, a similar finding ought to be made in respect of s 3.  For this submission,
counsel for the appellant sought reliance on Road Accident Fund v Duma and Three
Similar Cases [2012] ZASCA 169; [2013] 1 All SA 543 (SCA); 2013 (6) SA 9 (SCA)
(Duma) and Daniels v Road Accident Fund [2011] ZAWCHC 104 (Daniels).
[32] Duma concerned s 17(1) of the Road Accident Fund Act 56 of 1996 (the RAF
Act) which limits the Road Accident Fund’s liability to compensate a third party for
general damages for ‘serious injuries’. Road Accident Fund (RAF) regulation 3(3)(c)
provides that a third party who wishes to claim for general damages must submit a
‘serious injury assessment report to the Fund, which is ‘obliged to compensate’ such
third party if it is satisfied that the injury has been correctly assessed as serious.
Regulation 3(4) provides that if the Fund is not satisfied that the injury has been
correctly assessed, it is obliged to reject the report and furnish the third party with
reasons for the decision. It may alternatively, direct the third party to submit to a
further assessment.
[33] There is a marked distinction between the RAF Act, its regulations and the
Act. There is a clear and express obligation on the Fund to consider the third party’s
claim. That obligation is two-fold. First, to decide whether the claimant meets the
‘serious injury’ threshold, and second, to furnish the claimant with the reasons for its
decision to reject the claim. There is no such equivalent provision in the Act. Duma
does not assist the appellant.

[34] In Daniels, the Western Cape High Court considered the systemic failure by
the RAF to diligently investigate claims submitted to it. This had resulted in
unnecessary litigation in respect of claims which should have been settled. Even
after summons had been issued, the Fund, instead of promptly settling the matters,
defended them on spurious grounds. The court noted that the prescribed claim form
required detailed information, which if furnished, would enable the Fund to
investigate the claim and decide whether to settle or contest it.
[35] The court also had regard to the purpose of the RAF Act. It referred to
Engelbrecht v Road Accident Fund & another 2007 (6) SA 96 (CC); 2007 (5) BCLR
457 (CC). In that case, it was observed at para 23, with reference to Aetna Insurance
Co v Minister of Justice 1960 (3) SA 273 (A) at 285E-F that the stated primary
concern of the legislature in enacting the RAF Act (and its predecessors) has always
been ‘to give the greatest possible protection . . . to persons who have suffered loss
through a negligent or unlawful act on the part of the driver or owner of a motor
vehicle.’
[36] The court also pointed out that in terms of s 4(1)(b) of the RAF Act, the Fund’s
powers and functions include 'the investigation and settling’ of claims submitted to it.
It is in that context that the court in Daniels concluded that the provisions of the RAF
Act, which limit common law and constitutional rights, and create an obligation on the
Fund to diligently investigate claims submitted to it and to determine whether it is
liable to compensate the claimant.
[37] There are clear and discernable philosophical orientations between the
legislative scheme of the Fund and the Act under consideration. Significantly, there
is also a limit placed on the degree of compensation in relation to the Fund.
Moreover, their respective stated purposes are vastly different. The RAF Act was
enacted for the benefit of claimants. On the contrary, as stated already, the Act
under consideration was in the main, enacted for the benefit of the organs of state,
rather than the claimants.

[38] Another important difference is that the duty of the Fund to make a decision
on a claim received by it, is expressly provided for in s 4(1)(b) of the RAF Act. There
is no such provision in the Act. Third, the RAF prescribed form is elaborate, and
requires detailed and specified information about the claim. This points to the duty on
the Fund to consider the claim and endeavour to settle it. On the other hand, s
3(2)(b) only requires the facts and particulars of the claim to be ‘briefly set out’. It
does not prescribe the form in which this should be done. It follows that Daniels is
also distinguishable.
[39] In a different context, in Road Accident Fund Appeal Tribunal and others v
Gouws and another [2017] ZASCA 188; [2018] 1 All SA 701 (SCA); 2018 (3) SA 413
(SCA) this court considered the powers of the Road Accident Appeal Tribunal to
determine finally whether the injuries submitted to it for assessment were caused by
or arose out of the driving of a motor vehicle. There were no express provisions in
the RAF Act or the Regulations that conferred on the Tribunal such power. Counsel
for the Tribunal submitted that having regard to the object of the RAF Act, such
power could be implied. Rejecting that suggestion, the following was said at para 27:
‘As stated above, the general rule is that express powers are needed for the actions and
decisions of administrators. As pointed out by Professor Hoexter, implied powers may,
however, be ancillary to the express powers or exist either as a necessary or reasonable
consequence of the express powers. Furthermore, the author goes on to state that ‘a court
will be more inclined to find an implied power where the express power is of a broad,
discretionary nature – and less inclined where it is a narrow, closely circumscribed power’.
Where the administrative action or decision is likely to have far reaching effects, it is less
likely that a court will in the absence of express provisions find implied authorisation for it.’
(footnotes omitted).
[40] From above, it is clear that the appellant’s reliance on the RAF Act is of no
assistance to him.
IPID implications and constitutional norms
[41] I come now to what the appellant describes as the implications for IPID, which
includes the constitutional norms of accountability and responsiveness. It was

contended that a failure by the department to make a decision prior to litigation is
indicative of laxity and thus contrary to the provisions of the IPID Act and the
constitutional norms of accountability and responsiveness. In their heads of
argument, counsel for the appellant point to s 28(1)(f) of the IPID Act, which requires
that complaints of assault by police officers to be investigated by IPID. Reliance was
also placed on ss 29 and 30 of the IPID Act.
[42] The aim of the IPID Act is to ensure the independent oversight over the South
African Police Service (SAPS) and the various Municipal Police Services (MPS). It is
enjoined to conduct independent and impartial investigations of identified criminal
offences allegedly committed by members of SAPS and MPS, and make appropriate
recommendations. The IPID Act has no connection with the Act under consideration,
as they serve disparate purposes. I therefore fail to see how the IPID Act is relevant
to the interpretation of s 3. The laudable constitutional norms of accountability and
responsiveness cannot found an obligation where the Act does not expressly provide
for it, and where such an obligation cannot be reasonably implied.  Viewed in this
light, it is clear that the IPID argument is of no assistance to the appellant, either.
Difficulties with the implied provision
[43] There are two further factors militating against implying the suggested
provision into s 3. They concern first, the difficulty of formulating the provision and
determining its scope. Second, there is the prospect of parallel litigation.  With regard
to the formulation of the suggested implied term, I understood counsel for the
appellant to suggest, more or less, the following implied provision to be read into s 3:
‘An organ of state served with a notice referred to in s 3(1)(a) must within a
reasonable time of such service, either admit, reject or endeavor to settle the claim
set out in such notice.’
[44] The immediate difficulty is what is meant by ‘a reasonable time’? The period
of 30 days in s 5(2) should be assumed to have been considered by the legislature
as a reasonable period for an organ of state to consider a claim. Given that, how will

this suggested ‘reasonable period’ interface with the period in s 5(2)? Would it not
render s 5(2) nugatory?
[45] It is also not clear what is expected of an organ of state in the asserted
‘endeavour to settle’. Is it supposed to make an offer? If it does, what if the offer is
not acceptable to the claimant? Who determines whether the endeavour by an organ
of state to settle the claim is genuine and in good faith? What happens if the claimant
perceives the organ of state’s endeavour to be a sham, mechanical and in bad faith?
[46] The suggested implied provision seems to establish a parallel litigation
process. Questions concerning compensation to which a claimant is entitled are for
the court to decide in the contemplated litigation provided for in s 3, and are not
reviewable in terms of the PAJA. It certainly could not have been intended by the
legislature that the giving of the notice in terms of s 3 should result in parallel
litigation. It is not in the interests of justice.
[47] These difficulties, which are by no means far-fetched, suggest that the
proposed implied provision creates more problems than it solves. Apart from unduly
straining the language of the Act, we would impermissibly be usurping legislative
powers, thus infringing the principle of separation of powers. Furthermore, one must
bear in mind the injunction in Bato Star Fishing (Pty) Ltd v Minister of Environmental
Affairs and Tourism & others [2004] ZACC 15; 2004 (4) SA 490 (CC); 2004 (7) BCLR
687 (CC) para 90 that an interpretation that is placed upon a statute must, where
possible, be one that would advance at least an identifiable value enshrined in the
Bill of Rights and, the statute must be reasonably capable of such interpretation.
[48] The appellant has not identified any constitutional value advanced by his
preferred interpretation. I have demonstrated that the only right said to be violated –
the right of access to courts – is not implicated at all. It is instructive that s 3, and
many other similarly worded provisions, have been implemented for many years
without any difficulties. Had the legislature intended for the organs of state to have
an obligation to make a decision pursuant to receipt of s 3, it would have said so in
express terms.

Summary
[49] Over and above all the considerations set out above, one should be mindful
that national state departments have a difficult task in monitoring and evaluating
complaints and claims made against them. The Act and its predecessors were
designed to meet that problem and to afford organs of state an opportunity to gather
and preserve information and evidence. Their jurisdiction extends over large
geographical areas and encompass many individual employees and officials. Even
when the decision is made to oppose litigation already instituted or to repudiate
liability, there is the concomitant responsibility to gather evidence and/or prepare for
trial.
[50] What is contended for, without express statutory underpinning, would make
the task of state departments especially onerous. All the more so, when the
consequences of the declarator sought would, as already stated, be to deduce a
time within which, in general terms, a decision has to be made. In the present case,
the department was given 14 days within which to make the decision. To accede to
what was sought by the appellant, would be to place an intolerable time burden on
the state. It would also ignore reality. That having been said, it would be salutary for
organs of state, within means and resources, to attempt to communicate as early as
circumstances permit their attitude to claims by affected persons.  For all these
reasons the appeal stands to fail.
Costs
[51] There remains the issue of costs. The court a quo dismissed the application
with costs. Counsel for both parties informed us that before the court a quo, there
was agreement that whatever the outcome, no order of costs should be made. It
would seem then that the costs order was inadvertently made. That should be
rectified. With regard to costs in this court, the principle sought to be advanced by
the appellant is of public importance, and involves the responsibilities of an organ of

state. The interpretive issue is of public importance, despite the dismissal of the
appeal. Biowatch6 accordingly applies.
[52] In the result, the following order is made:
1  The appeal is dismissed with no order as to costs.
2  The order of the court a quo is amended to read as follows:
‘The application is dismissed with no order as to costs.’

___________________
T M Makgoka
Judge of Appeal

6 Biowatch Trust v Registrar Generic Resources & others [2009] ZACC 14; 2009 (6) SA 232 (CC);
2009 (10) BCLR 1014 (CC) paras 23-24.

APPEARANCES:
For the Appellant:

J H Roux SC (with him P S Van Zyl)

Instructed by:

Kruger & Co. Attorneys, Parow

Webbers, Bloemfontein

For the Respondents:
K Pillay

Instructed by:

State Attorney, Cape Town

State Attorney, Bloemfontein