Statutory interpretation stands at the heart of many legal disputes. In Minister of Police v Miya (hereafter Miya), the Supreme Court of Appeal was asked to interpret section 2(2) of the State Liability Act 20 of 1957, read alongside the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002. In essence, the issue before was whether failure to serve court summons on the head of the relevant department (the "debtor") rendered the summons a nullity or could it be cured by service on the State Attorney alone. In addressing the issue, the Supreme Court of Appeal ("SCA") set about interpreting the purpose of the Act and whether it had been achieved through service on the State Attorney.
On a literal interpretation of section 2(2), one could argue that a debtor who was not served strictly in accordance with section 2(2) of the State Liability Act should be entitled to raise a special plea that service of the summons was defective. The SCA, however, adopted a more purposive reading, concluding that service on the State Attorney (with the State Attorney delivering a Notice of Intention to Defend, and subsequent Plea, on behalf of the Defendant) sufficed to defeat an argument based purely on non-compliance with the statutory wording.
This judgment highlights the ongoing debate around interpretive methodologies: a literal approach brings certainty but can, in certain instances, hinder access to justice, while a purposive approach may advance constitutional values but risk generating uncertainty in interpretation and application.
Factual Background and the Legal Question
The plaintiff, Mr. Miya, instituted proceedings for alleged unlawful arrest and detention.
Summons was issued timeously but served on the State Attorney instead of the head of the relevant department (the "Minister"), contrary to section 2(2)(a) of the State Liability Act.
The Minister, through the State Attorney, entered an appearance to defend and participated in the proceedings by delivering its Plea on behalf of the Minister. Almost two years later the Minister filed an amended Plea wherein he introduced a Special Plea in terms of the State Liability Act (read with rule 4 (9) of the Uniform Rules of Court) arguing that the summons had never been served on the Minister in the manner prescribed, a fatal flaw rendering the claim prescribed irrespective of the Miniter's participation in the proceedings from its inception. The Special Plea, being the subject of the Appeal.
In terms of section 2(2) of the State Liability Act: –
'(2) The Plaintiff or Applicant, as the case may be, or his or her legal representative must –
(a) after any court process instituting proceedings and in which the executive authority of a department is cited as nominal Defendant or Respondent has been issued, serve a copy of that process on the head of department concerned at the head office of the department; and
(b) within five days after service of the process contemplated in paragraph (a), serve a copy of that process on the office of the State Attorney operating within the area of jurisdiction of the court from which the process was issued.' (own emphasis added)
Before the High Court, the Minister submitted that the provision of s 2(2) of the State Liability Act are obligatory and failure to serve the summons on the Minister is fatal; with service on the State Attorney alone rendering the summons a nullity. It was argued in the alternative by the Minister that the claim had prescribed due to non-service on the debtor, the Minister in terms of s 2(2)(a).
- Literal Approach
- Textual Priority. A literal or "strict" approach emphasises that the legislature used the word "must," which indicates a peremptory obligation.
- Procedural Certainty. Literal adherence to statutory formalities helps ensure uniformity and predictability. Departments know precisely what service is required to trigger obligations, interrupt prescription, or confer knowledge of pending litigation.
- Purposive (or Teleological) Approach
- Substantial Compliance & Access to Justice. Courts frequently invoke the constitutional imperative of access to justice (section 34 of the Constitution). A purposive reading avoids depriving litigants of their day in court when the organ of state undisputedly has notice of the action.
- Spirit, Purport, and Objects. Section 39(2) of the Constitution requires legislation to be interpreted in light of constitutional values and the Bill of Rights. The Supreme Court of Appeal emphasised that if the relevant department is indeed aware of the proceedings (through its legal representatives, the State Attorney), to insist on literal compliance could frustrate substantive justice.
In the end, in Miya, the Supreme Court of Appeal endorsed a purposive reading:
- Service on the State Attorney – followed by the State Attorney's active participation on behalf of the Minister – indicated the Minister was aware of the claim.
- Thus, failing to serve the summons on the head of the department (the defendant) did not render the process a nullity.
- This approach is broadly consistent with other judgments (such as Minister of Police v Molokwane), which favour an interpretation preventing purely procedural technicalities from thwarting a plaintiff's claim, so long as the purpose of the statutory requirement – namely alerting the correct organ of state – has been achieved.
Policy Considerations and Practical Implications
While the state has an interest in clear and consistent processes (so that it can manage litigation effectively), claimants should not lose valid claims due to "minor" errors where the state is indeed aware of the litigation.
In the author's view, lawyers issuing process against an organ of state must still do their best to comply strictly with statutory service requirements. Miya does not encourage non-compliance; it merely prevents total annulment of a claim when the real purpose of the statute – informing the department – has been met.
The tension between literal and purposive approaches will likely re-emerge in similar matters, especially if the facts differ, or where an organ of state genuinely has no knowledge of a summons. Practitioners will watch carefully to see how lower courts apply Miya in borderline cases.
Ultimately, whether one agrees with the outcome depends on how one values legal certainty vis-à-vis equitable access to the courts. Miya underlines that these values must be balanced, with courts increasingly favouring an approach that avoids unjust procedural pitfalls while still recognising that statutory wording is not merely aspirational. So long as the spirit and purpose of the legislation are achieved, strict literal compliance may yield to a more nuanced, purposive reading that upholds fairness and the right of access to courts.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
