LIM 19

WORKING DOCUMENT: DRAFT 2

REPUBLIC OF SOUTH AFRICA

LIMITATION OF LEGAL PROCEEDINGS AGAINST GOVERNMENT INSTITUTIONS BILL

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(As introduced in the National Assembly as a section 75 Bill; Bill published in Government Gazette No. 20676 of 25 November 1999) (The English text is the official text of the Bill)

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(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B 65 - 99]

_____________________________________________________________________

 

REPUBLIEK VAN SUID-AFRIKA

WETSONTWERP OP DIE BEPERKING VAN REGSGEDINGE TEEN OWERHEIDSINSTELLINGS

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(Soos ingedien in die Nasionale Vergadering as 'n artikel 75-wetsontwerp; Wetsontwerp in Staatskoerant No. 20676 van 25 November 1999 gepubliseer) (Die Afrikaanse teks is die amptelike vertaling van die Wetsontwerp)

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(MINISTER VIR JUSTISIE EN STAATKUNDIGE ONTWIKKELING)

[W 65 - 99]

limit2

GENERAL EXPLANATORY NOTE:

[ ] [Words in bold type in square brackets indicate omissions from the Bill as introduced.]

Words underlined with a solid line indicate insertions in the Bill as introduced.

{ } {Words in italics in brace brackets indicate a further option within an option.}

Words highlighted indicate changes to the Bill since previous consideration thereof by the Committee on 20/06/2000.

F E Options marked FOptionE indicate the Department's preliminary preferences.

___________________________________________________________________

 

B I L L

To make fresh provision for notice requirements in connection with the institution of legal proceedings against government institutions in respect of certain debts; to repeal or amend certain Acts; and to provide for matters connected therewith.

OPTION

Substitute the long title with any of the following options:

OPTION 1

To make {[fresh]} provision for notice requirements in connection with the institution of legal proceedings against [government institutions] organs of state in respect of certain debts; to repeal or amend certain Acts; and to provide for matters connected therewith.

FOPTION 2E

To [make fresh provision] {provide afresh for / regulate} notice requirements in connection with the institution of legal proceedings against [government institutions] organs of state in respect of certain debts; to repeal or amend certain Acts; and to provide for matters connected therewith.

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:—


CLAUSE 1

Definitions

1. In this Act, unless the context indicates otherwise—

(i) "creditor" means a person who intends to institute legal proceedings against a government institution for recovery of a debt arising from delict or who has instituted such proceedings, and includes such person's tutor or curator if such person is a minor or mentally ill or under curatorship, as the case may be; (iii)

FOPTIONE

Substitute the definition of "creditor" with the following:

(i) "creditor" means a person who intends to institute legal proceedings against [a government institution] {a debtor / an organ of state} for recovery of a debt [arising from delict] or who has instituted such proceedings, and includes such person's tutor or curator if such person is a minor or mentally ill or under curatorship, as the case may be;

FOPTIONE

Insert the following definition:

( ) "Constitution" means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

 

OPTION

Insert any of the following definitions of "debt":

OPTION 1A

( ) "debt" means any debt arising from delict {without fault in terms of a statutory provision} or any other unlawful act or omission for which {a debtor / an organ of state} is liable for payment {without fault in terms of a statutory provision}, but does not include a debt arising from a breach of contract;

OPTION 1B

( ) "debt" means any debt arising from delict {without fault in terms of a statutory provision} or any {illegal / other alleged} act performed, or an alleged failure to do anything which should have been done, under or in terms of any law and for which {a debtor / an organ of state} is liable for payment {without fault in terms of a statutory provision}, but does not include a debt arising from a breach of contract;

OPTION 1C

( ) "debt" means any debt arising from the negligence, intentional or unlawful act or omission, or delict of whatever nature committed by, or at the behest of, {a debtor / an organ of state}, but does not include a debt arising from a breach of contract committed by, or at the behest of, {a debtor / an organ of state} and for which {a debtor / an organ of state} is liable for payment without fault in terms of a statutory provision;

FOPTION 1DE

( ) "debt" means any debt arising from delict, including liability without fault in terms of a statutory provision, or any other unlawful act or omission for which {a debtor / an organ of state} {is / may be} liable for payment of damages, but does not include a debt arising from a breach of contract;

OPTION

Insert the following definition:

( ) "debtor" means—

(a) any organ of state which is liable for the payment of a debt;

(b) any functionary {, other than a functionary or institution referred to in paragraph (b) of the definition of "organ of state",} who may be cited as the nominal {defendant / defendant or respondent, as the case may be,} in any legal proceedings against an organ of state in respect of a debt; or

(c) any {officer / person} who acted within the scope of his or her official capacity and for whose {actions / actions or omissions} an organ of state is liable for the payment of a debt;

(ii) "delict" includes an unlawful act for which a defendant is liable for payment of damages without fault in terms of a statutory provision; (i)

OPTION 1

Substitute the definition of "delict" with the following definition:

(ii) "delict" includes an unlawful act or omission for which [a defendant] {a debtor / an organ of state} is liable for payment of damages without fault in terms of a statutory provision;

FOPTION 2E

Delete the definition of "delict".

FOPTIONE

Insert the following definitions:

( ) "executing authority" in relation to—

(a) the Office of the President, means the President acting on his or her own;

(b) the Office of the Deputy President, means the Deputy President;

(c) the Office of a Premier of a province, means the Premier of that province acting on his or her own;

(d) a national department, means the Cabinet member who is accountable to Parliament for that department;

(e) a provincial department, means the member of the Executive Council of a province who is accountable to the provincial legislature for that department; and

(f) a functionary or institution referred to in paragraph (c) or (d) of the definition of "organ of state", means—

(i) the Cabinet member who is accountable to Parliament for that functionary or institution or in whose portfolio it falls; or

(ii) the member of the provincial Executive Council who is accountable to the provincial legislature for that functionary or institution or in whose portfolio it falls;

( ) "Minister" means the Cabinet member responsible for the administration of justice;

( ) "national department" means—

(a) a department mentioned in the first column of Schedule 1 to the Public Service Act, 1994 (Proclamation No. 103 of 1994), but excluding a provincial administration; or

(b) an organisational component mentioned in the first column of Schedule 3 to that Act;

( ) "provincial department" means—

(a) a provincial administration mentioned in the first column of Schedule 1 to the Public Service Act, 1994; or

(b) a department within a provincial administration and mentioned in the first column of Schedule 2 to that Act;

(iii) "government institution" means—

(a) a municipality contemplated in section 151 of the Constitution;

(b) a traditional authority contemplated in section 211(2) of the Constitution;

(c) the South African Roads Board established by section 2 of the South African Road Board Act, 1988 (Act No. 74 of 1988);

(d) the South African National Parks referred to in section 5(1) of the National Parks Act, 1976 (Act No. 57 of 1976);

(e) the Office of the Auditor-General established by section 3 of the Audit Arrangements Act, 1992 (Act No. 122 of 1992);

(f) any department contemplated in Schedule 1 to the Public Service Act, 1994 (Proclamation No. 103 of 1994), and any organisational component contemplated in Schedule 2 to that Act;

(g) any functionary who may be cited as the nominal defendant in any legal proceedings against a body or institution contemplated in paragraphs (a) to (f); and

(h) any person for whose actions a body or institution contemplated in paragraphs (a) to (f) is liable in respect of a debt arising from delict. (ii)

OPTION

Substitute the definition of "government institution" with any of the following options:

OPTION 1A

( ) "organ of state" means—

(a) any department of state or administration in the national, provincial or local sphere of government, including—

(i) any national department, provincial administration, provincial department or organisational component mentioned in the first column of Schedule 1, 2 or 3 to the Public Service Act, 1994 (Proclamation No. 103 of 1994); and

(ii) a municipality contemplated in section 151 of the Constitution;

(b) any other functionary or institution—

(i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation,

including the—

(aa) South African Roads Board established by section 2 of the South African Road Board Act, 1988 (Act No. 74 of 1988);

(bb) South African National Parks referred to in section 5(1) of the National Parks Act, 1976 (Act No. 57 of 1976);

(cc) Office of the Auditor-General established by section 3 of the Audit Arrangements Act, 1992 (Act No. 122 of 1992); and

(dd) South African Maritime Safety Authority established by section 2 of the South African Maritime Safety Authority Act, 1998 (Act No. 5 of 1998),

{but does not include a court or a judicial officer;}

(c) any functionary {, other than a functionary or institution referred to in paragraph (b),} who may be cited as the nominal {defendant / defendant or respondent, as the case may be,} in any legal proceedings against an organ of state contemplated in paragraph (a) or (b) in respect of a debt; and

(d) any {officer / person} for whose {actions / actions or omissions} an organ of state contemplated in paragraph (a) or (b) is liable for the payment of a debt;

OPTION 1B

( ) "organ of state" means—

(a) any department of state or administration in the national, provincial or local sphere of government, including—

(i) any national department, provincial administration, provincial department or organisational component mentioned in the first column of Schedule 1, 2 or 3 to the Public Service Act, 1994 (Proclamation No. 103 of 1994); and

(ii) a municipality contemplated in section 151 of the Constitution; or

(b) any other functionary or institution—

(i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation,

including the—

(aa) South African Roads Board established by section 2 of the South African Road Board Act, 1988 (Act No. 74 of 1988);

(bb) South African National Parks referred to in section 5(1) of the National Parks Act, 1976 (Act No. 57 of 1976);

(cc) Office of the Auditor-General established by section 3 of the Audit Arrangements Act, 1992 (Act No. 122 of 1992); and

(dd) South African Maritime Safety Authority established by section 2 of the South African Maritime Safety Authority Act, 1998 (Act No. 5 of 1998),

{but does not include a court or a judicial officer;}

FOPTION 1CE

( ) "organ of state" means—

(a) any national or provincial department;

(b) a municipality contemplated in section 151 of the Constitution;

(c) any functionary or institution {when} exercising a power or performing a function in terms of the Constitution or a provincial constitution;

(d) any other functionary or institution designated by the Minister in terms of section 2(1); and

(e) any {officer / person} who acted, or failed to act, within the cause and scope of his or her duties and for which actions or omissions an organ of state contemplated in paragraphs (a) to (d) is liable for the payment of a debt.

OPTION 1D

( ) "organ of state" means—

(a) any department of state or administration in the national, provincial or local sphere of government, including—

(i) any national department, provincial administration, provincial department or organisational component mentioned in the first column of Schedule 1, 2 or 3 to the Public Service Act, 1994 (Proclamation No. 103 of 1994); and

(ii) a municipality contemplated in section 151 of the Constitution;

(b) any other functionary or institution {when}

(i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation; and

(c) any {officer / person} who acted, or failed to act, within the cause and scope of his or her duties and for which {actions / actions or omissions} an organ of state contemplated in paragraph (a) or (b) is liable for the payment of a debt;

OPTION 1E

( ) "organ of state" means—

(a) any department of state or administration in the national, provincial or local sphere of government, including—

(i) any national department, provincial administration, provincial department or organisational component mentioned in the first column of Schedule 1, 2 or 3 to the Public Service Act, 1994 (Proclamation No. 103 of 1994); and

(ii) a municipality contemplated in section 151 of the Constitution;

(b) any functionary or institution {when} exercising a power or performing a function in terms of the Constitution or a provincial constitution;

(c) any board, commission, company, corporation, fund or other institution which is—

(i) (aa) established in terms of national legislation;

(bb) fully or substantially funded either from the National Revenue Fund established in terms of section 213(1) of the Constitution, or by way of a tax, levy or other money imposed in terms of national legislation; and

(cc) accountable to Parliament; or

(ii) (aa) established in terms of legislation or a provincial constitution;

(bb) fully or substantially funded either from a Provincial Revenue Fund established by section 226(1) of the Constitution, or by way of a tax, levy or other money imposed in terms of legislation; and

(cc) accountable to a provincial legislature referred to in section 104 of the Constitution,

{when} exercising a public power or performing a public function in terms of any legislation; and

(d) any {officer / person} who acted, or failed to act, within the cause and scope of his or her duties and for which {actions / actions or omissions} an organ of state contemplated in paragraph (a), (b) or (c) is liable for the payment of a debt;

OPTION 1F

( ) "organ of state" means—

(a) any department of state or administration in the national, provincial or local sphere of government, including—

(i) any national department, provincial administration, provincial department or organisational component mentioned in the first column of Schedule 1, 2 or 3 to the Public Service Act, 1994 (Proclamation No. 103 of 1994); and

(ii) a municipality contemplated in section 151 of the Constitution;

(b) any functionary or institution {when} exercising a power or performing a function in terms of the Constitution or a provincial constitution;

(c) any—

(i) constitutional institution listed in Schedule 1;

(ii) national public entity contemplated in paragraph (b) of the definition of "national public entity" in section 1 of the Public Finance Management Act, 1999 (Act No. 1 of 1999), and listed in Schedule 2;

(iii) provincial public entity contemplated in paragraph (b) of the definition of "provincial public entity" in section 1 of the Public Finance Management Act, 1999, and listed in Schedule 3; or

(iv) any other functionary or institution established in terms of any legislation and listed in Schedule 4,

when exercising a public power or performing a public function in terms of any legislation; and

(d) any {officer / person} who acted, or failed to act, within the cause and scope of his or her duties and for which {actions / actions or omissions} an organ of state contemplated in paragraph (a), (b) or (c) is liable for the payment of a debt;

OPTION

Insert the following definition:

( ) "officer" means any person in the employ of an organ of state, whether in a full-time or part-time capacity;

FOPTIONE

Insert the following definition:

( ) "provincial constitution" means a provincial constitution referred to in section 142 of the Constitution;

NEW CLAUSE 2

FOPTIONE

Insert the following as a new clause 2:

Designation of functionaries and institutions as organs of state

2. (1) (a) Subject to subsection (2), the Minister must, upon application by a functionary or institution, by notice in the Gazette designate such a functionary or institution as an organ of state for purposes of this Act.

(b) An application referred to in paragraph (a) must indicate—

(i) the name of the functionary or institution concerned and the address at which such functionary or institution carries on business; and

(ii) the official title and the postal and street address, phone and facsimile number and, if available, electronic mail address of—

(aa) the person to whom a notice contemplated in section 3(2)(a) must be delivered, sent or transmitted in terms of section 3(2)(b); and

(bb) the executing authority, if any, of the functionary or institution concerned.

(2) The Minister may only designate a functionary or institution as contemplated in subsection (1)(a) if he or she is satisfied that the functionary or institution concerned—

(a) has been established in terms of the Constitution, a provincial constitution or any other legislation;

(b) is fully or substantially funded—

(i) from the National Revenue Fund established by section 213(1) of the Constitution;

(ii) from a Provincial Revenue Fund established by section 226(1) of the Constitution; or

(iii) by way of a tax, levy or other money imposed in terms of legislation;

(c) is accountable to—

(i) Parliament; or

(ii) a provincial legislature referred to in section 104 of the Constitution; and

(d) predominantly exercises a public power or performs a public function in terms of any legislation.

(3) A notice referred to in subsection (1)(a) must contain—

(a) the information referred to in subsection (1)(b); and

(b) any other information which the Minister deems appropriate.

(4) The Minister may at any time—

(a) on his or her own accord, but after consultation with the functionary or institution concerned; or

(b) upon application by the functionary or institution concerned,

by subsequent notice in the Gazette

(i) amend a notice under subsection (1)(a) if he or she is satisfied that since the publication of the notice concerned, the circumstances in respect of the functionary or institution have changed to such an extent that the information contained in such notice is no longer correct; or

(ii) withdraw any notice under subsection (1)(a) if he or she is satisfied that the functionary or institution concerned no longer qualifies as an organ of state for purposes of this Act, and thereupon any functionary or institution referred to in such last-mentioned notice ceases to be an organ of state for purposes of this Act.

(5) A notice referred to in subsection (1)(a) or (4)(ii) must, before publication in the Gazette, be approved by Parliament.

CLAUSE 2

Notice of intended legal proceedings to be given to [government institution] {debtor / organ of state}

2. (1) Subject to this Act, no legal proceedings for the recovery of a debt arising from delict may be instituted against a government institution unless the creditor has given the government institution notice in writing of his or her intention to institute the legal proceedings in question or the government institution has consented in writing to the institution of legal proceedings without such notice.

OPTION 1

Substitute subsection (1) with any of the following options:

OPTION 1A

(1) {(a)} Subject to this Act, no legal proceedings for the recovery of a debt [arising from delict] may be instituted against [a government institution] {a debtor / an organ of state} unless the creditor has given the [government institution] {debtor / organ of state} concerned notice in writing of his or her or its intention to institute the legal proceedings in question or the [government institution] {debtor / organ of state} concerned has consented in writing to the institution of legal proceedings without such notice.

FOPTION 1BE

(1) {(a)} Subject to this Act, no legal proceedings for the recovery of a debt [arising from delict] may be instituted against [a government institution] {a debtor / an organ of state} unless—

{(a) / (i)} the creditor has given the [government institution] {debtor / organ of state} concerned notice in writing of his or her or its intention to institute the legal proceedings in question; or

{(b) / (ii)} the [government institution] {debtor / organ of state} concerned has consented in writing to the institution of legal proceedings without such notice.

OPTION 2

Add the following paragraph to subsection (1), the existing subsection becoming paragraph (a):

OPTION 2A

(b) No legal proceedings contemplated in paragraph (a) may be instituted before the expiry of at least one {calender} month after the notice referred to in paragraph (a), where applicable, has been served on the {debtor / organ of state}.

OPTION 2B

(b) No legal proceedings contemplated in paragraph (a) may be instituted before the expiry of at least one {calender} month after—

(i) the notice referred to in paragraph {(a) / (a)(i)} has been served on the {debtor / organ of state}; or

(ii) the {debtor / organ of state} has consented in writing to the institution of legal proceedings without such notice,

whichever is applicable.

(2) The notice contemplated in subsection (1) must—

(a) briefly set out the facts relied on for the intended legal proceedings;

(b) be delivered by hand or sent by certified mail to the person who is to be cited as defendant or respondent, as the case may be, within six months from the date upon which the debt became due.

OPTION 1

Substitute subsection (2) with any of the following options:

OPTION 1A

(2) {(a)} The notice contemplated in subsection (1) must—

{(a) / [(a)] (i)} briefly set out the facts relied on for the intended legal proceedings;

{(b) / [(b)] (ii)} be delivered by hand or sent by certified mail, facsimile transmission or electronic mail to the [person who is to be cited as defendant or respondent, as the case may be,] {debtor / organ of state} within six {calender} months from the date upon which the debt became due.

OPTION 1B

(2) {(a)} The notice contemplated in subsection (1) must—

{(a) / [(a)] (i)} briefly set out [the facts relied on for the intended legal proceedings]

(aa) the {facts from which the debt arose / cause of action relied on for the intended legal proceedings }; and

(bb) such particulars of such debt as are within the knowledge of the creditor; and

{(b) / [(b)] (ii)} in accordance with paragraph (b) be delivered by hand or sent by certified mail, facsimile transmission or electronic mail to the [person who is to be cited as defendant or respondent, as the case may be,] {debtor / organ of state} within six {calender} months from the date upon which the debt became due.

FOPTION 1CE

(2) {(a)} The notice contemplated in subsection (1) must—

{(a) / [(a)] (i)} briefly set out the facts relied on for the intended legal proceedings;

{(b) / [(b)] (ii)} be delivered by hand or sent by certified mail or, subject to paragraph (c), be sent by electronic mail or transmitted by facsimile to the [person who is to be cited as defendant or respondent, as the case may be,] {debtor / organ of state} within six {calender} months from the date upon which the debt became due.

OPTION 2

Add the following paragraph to subsection (2), the existing subsection becoming paragraph (a):

OPTION 2A

(b) For purposes of paragraph (a)(ii), the notice must, in the case where the {debtor / organ of state} is—

(i) a national department, provincial administration, provincial department or organisational component—

(aa) mentioned in the first column of Schedule 1, 2 or 3 to the Public Service Act, 1994, be delivered, sent or transmitted to the officer who is the incumbent of the post bearing the designation mentioned in the second column of the said Schedule 1, 2 or 3 opposite the name of the relevant national department, provincial administration, provincial department or organisational component {or the person who is acting as such}; or

(bb) not so mentioned, be delivered, sent or transmitted to the Director-General, head, executive director or equivalent officer, respectively, of that national department, provincial administration, provincial department or organisational component, respectively, {or the person who is acting as such};

(ii) a municipality, be delivered, sent or transmitted to the municipal manager appointed in terms of section 82 of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998), {or the person who is acting as such};

(iii) {a functionary or institution contemplated in paragraph (b) of the definition of "organ of state", or a functionary contemplated in paragraph (b) of the definition of "debtor" / a functionary or institution contemplated in paragraph (b), or a functionary contemplated in paragraph (c), of the definition of "organ of state"}, be delivered, sent or transmitted to the chairperson, head, chief executive officer, or equivalent officer, of that {functionary / functionary or institution} {or the person who is acting as such}, or where such functionary is a natural person, to that natural person; or

(iv) {an officer / a person} referred to in {paragraph (c) of the definition of "debtor" / paragraph (d) of the definition of "organ of state"} , be delivered, sent or transmitted to that {officer / person.}

 

FOPTION 2BE

(b) For purposes of paragraph (a)(ii), the notice must, in the case where the {debtor / organ of state} is—

(i) a national or provincial department—

(aa) mentioned in the first column of Schedule 1, 2 or 3 to the Public Service Act, 1994, be delivered, sent or transmitted to the officer who is the incumbent of the post bearing the designation mentioned in the second column of the said Schedule 1, 2 or 3 opposite the name of the relevant national or provincial department {or the person who is acting as such}; or

{[(bb) not so mentioned, be delivered, sent or transmitted to the Director-General, head, executive director or equivalent officer, respectively, of that national or provincial department {or the person who is acting as such}]};

(ii) a municipality, be delivered, sent or transmitted to the municipal manager appointed in terms of section 82 of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998), {or the person who is acting as such};

(iii) a functionary or institution referred to in paragraph (c) of the definition of "organ of state", be delivered, sent or transmitted to the chairperson, head, chief executive officer, or equivalent officer, of that functionary or institution {or the person who is acting as such}, or where such functionary is a natural person, to that natural person;

(iv) a functionary or institution referred to in paragraph (d) of the definition of "organ of state", be delivered, sent or transmitted to the person indicated in the notice referred to in section 2(1)(a) {or the person who is acting as such}; or

(v) an {officer / person} referred to in paragraph (e) of the definition of "organ of state", be delivered, sent or transmitted to that {officer / person}.

OPTION 3

Add the following paragraph to subsection (2):

OPTION 3A

(c) If a notice has been sent by electronic mail or transmitted by facsimile as contemplated in paragraph (a)(ii), the creditor must, within seven days after the date upon which that notice was so sent or transmitted, deliver by hand or send by certified mail to the relevant officer or person referred to in paragraph (b) a certified copy of the notice so sent or transmitted, accompanied by an affidavit of the creditor or the person who sent or transmitted the notice, which must provide—

(i) proof of the date on which, and the electronic mail address or facsimile number to which, the notice was so sent or transmitted; and

(ii) confirmation that the whole of the sending or transmission was {successfully} completed.

FOPTION 3BE

(c) If a notice has been sent by electronic mail or transmitted by facsimile as contemplated in paragraph (a)(ii), the creditor must, within seven days after the date upon which that notice was so sent or transmitted, deliver by hand or send by certified mail a printed copy of the electronic mail or the original of the facsimile to the relevant officer or person referred to in paragraph (b).

(3) For the purposes of subsection (2)(b)—

(a) a debt may not be regarded as being due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt has arisen, but a creditor must be regarded as having acquired such knowledge as soon as he or she could have acquired it by exercising reasonable care, unless the debtor wilfully prevents him or her from acquiring such knowledge; and

(b) if a creditor institutes legal proceedings after the commencement of this Act in respect of a debt which became due before such commencement, such debt must be regarded as having become due on the date of commencement of this Act.

FOPTIONE

Substitute subsection (3) with the following:

(3) For the purposes of subsection {(2)(b) / (2)[(b)] (a)(ii)}

(a) a debt may not be regarded as being due until the creditor has knowledge of the identity of the [debtor] organ of state and of the facts from which the debt has arisen, but a creditor must be regarded as having acquired such knowledge as soon as he or she or it could have acquired it by exercising reasonable care, unless the [debtor] organ of state wilfully prevents him or her or it from acquiring such knowledge; and

(b) if a creditor institutes legal proceedings after the commencement of this Act in respect of a debt which became due before such commencement, such debt must be regarded as having become due on the date of commencement of this Act.

(4) If a government institution relies on a creditor's failure to give notice in terms of subsection (2), a court having jurisdiction may condone the failure on application by the creditor if the court is satisfied that—

(a) good cause exists for the failure by the creditor; or

(b) the government institution was not unreasonably prejudiced by the failure.

OPTION

Substitute subsection (4) with any of the following options:

OPTION 1

(4) If [a government institution] {a debtor / an organ of state} relies on a creditor's failure to give notice in terms of subsection (2), a court having jurisdiction may condone the failure on application by the creditor if the court is satisfied that—

(a) {good cause exists for the failure by the creditor / [good cause exists for the failure by the creditor] it is in the interest of justice}; {or / [or] and}

(b) the [government institution] {debtor / organ of state} was not unreasonably prejudiced by the failure.

FOPTION 2E

(4) (a) If [a government institution] {a debtor / an organ of state} relies on a creditor's failure to give notice in terms of subsection (2)(a), the creditor may apply to a court having jurisdiction [may condone the] for condonation of such failure [on application by the creditor].

(b) The court may grant an application referred to in paragraph (a) if the court is satisfied that—

(i) good cause exists for the failure by the creditor; {or / [or] and}

(ii) the [government institution] {debtor / organ of state} was not unreasonably prejudiced by the failure.

FOPTION AE

(c) If an application is granted in terms of paragraph (b), the court may, subject to any law relating to the extinction of debts by prescription, grant leave to institute the legal proceedings subject to any conditions regarding notice to the [government institution] {debtor / organ of state} which the court [may lay down] determines.

OPTION B

(c) If an application is granted in terms of paragraph (b), the court may, subject to [any law relating to the extinction of debts by prescription] section 344 of the Merchant Shipping Act, 1951 (Act No. 57 of 1951), section 2(6)(b) of the Apportionment of Damages Act, 1956 (Act No. 34 of 1956), section 96 of the Customs and Excise Act, 1964 (Act No. 91 of 1964), or the Prescription Act, 1969 (Act No. 68 of 1969), grant leave to institute the legal proceedings subject to any conditions regarding notice to the [government institution] {debtor / organ of state} which the court [may lay down] determines.

(5) The court may, subject to any law relating to the extinction of debts by prescription, grant leave to institute the legal proceedings subject to any conditions regarding notice to the government institution which the court may lay down.

OPTION 1

Substitute subsection (5) with the following:

(5) The court may, subject to any law relating to the extinction of debts by prescription, grant leave to institute the legal proceedings subject to any conditions regarding notice to the [government institution] {debtor / organ of state} which the court may lay down.

FOPTION 2E

Delete subsection (5).

(6) The court may not have regard to non-compliance with subsection (2) unless such non-compliance is raised by a government institution.

FOPTION 1E

Substitute subsection (6) with the following:

(6) The court may not have regard to non-compliance with subsection (2) unless such non-compliance is raised by [a government institution] {a debtor / an organ of state}.

OPTION 2

Delete subsection (6).

 

NEW CLAUSE 4

FOPTIONE

Insert the following as a new clause 4:

Service of process

4. (1) (a) Any process by which legal proceedings contemplated in section 3(1) are instituted must be served on the relevant officer or person referred to in section 3(2)(b).

(b) Any process by which legal proceedings contemplated in section 3(1) are instituted and in which the executing authority of the organ of state concerned is cited as the defendant or respondent, whether in terms of section 2(1) of the State Liability Act, 1957 (Act No. 20 of 1957), or otherwise, must be served on the relevant officer or person referred to in section 3(2)(b).

(2) No process referred to in subsection (1) may be served as contemplated in that subsection before the expiry of a period of one {calender} month after the notice referred to in section 3(1), where applicable, has been served on the {debtor / organ of state} or the relevant executing authority as contemplated in section 3(2)(b).

(3) If any process referred to in subsection (1) has been served on the {debtor / organ of state} or the relevant executing authority before the expiry of the period referred to in subsection (2), such process must be regarded as having been served on the first day immediately following upon the last day of the said period.

CLAUSE 3

Prescription of debts

3. Section 2 does not derogate from the provisions of section 344 of the Merchant Shipping Act, 1951 (Act No. 57 of 1951), section 2(6)(b) of the Apportionment of Damages Act, 1956 (Act No. 34 of 1956), or the Prescription Act, 1969 (Act No. 68 of 1969).

OPTION

Substitute clause 3 with any of the following options:

OPTION 1

Restoration of prescription law

3. Save and except as stated in section 2, no provision in any existing law that derogates from the provisions of section 344 of the Merchant Shipping Act, 1951 (Act No. 57 of 1951), section 2(6)(b) of the Apportionment of Damages Act, 1956 (Act No. 34 of 1956), section 96 of the Customs and Excise Act, 1964 (Act No. 91 of 1964), or the Prescription Act, 1969 (Act No. 68 of 1969), and no requirement that any notice must be served on any {debtor / organ of state} before the institution of any legal proceedings for the recovery of any debt arising from any cause of action whatsoever, shall be of any legal force and effect.

OPTION 2

Prescription of debts and conflict with other laws

3. (1) Subject to the extent that section 2 [does not derogate from the provisions of] regulates the extinction of debts by prescription, a debt shall be extinguished by prescription as provided in section 344 of the Merchant Shipping Act, 1951 (Act No. 57 of 1951), section 2(6)(b) of the Apportionment of Damages Act, 1956 (Act No. 34 of 1956), section 96 of the Customs and Excise Act, 1964 (Act No. 91 of 1964), or the Prescription Act, 1969 (Act No. 68 of 1969).

(2) In the event of a conflict between section 2 and any other law in force immediately before the commencement of this Act, other than the Constitution, section 2 prevails.

OPTION 3

Prescription of debts

3. Save and except as provided in section 2 [does not derogate from the provisions of], a debt shall only be extinguished by prescription as provided in section 344 of the Merchant Shipping Act, 1951 (Act No. 57 of 1951), section 2(6)(b) of the Apportionment of Damages Act, 1956 (Act No. 34 of 1956), section 96 of the Customs and Excise Act, 1964 (Act No. 91 of 1964), or the Prescription Act, 1969 (Act No. 68 of 1969).

CLAUSE 4

Repeal and amendment of laws

4. (1) Subject to subsection (2), the laws referred to in the Schedule are hereby amended or repealed to the extent set out in the third column of the Schedule.

OPTION

Substitute subsection (1) with the following:

(1) Subject to subsection (2), the laws referred to in [the] Schedule 5 are hereby amended or repealed to the extent set out in the third column of [the] that Schedule.

(2) With regard to any legal proceedings instituted before the commencement of this Act and which were not before such commencement finally determined by a judgment or by a settlement duly concluded, the amendment or repeal of a law in terms of subsection (1) must be regarded as having taken effect immediately before the cause of action arose.

CLAUSE 5

Conflict with other laws

5. In the event of a conflict between section 2 of this Act and any other law in force immediately before the commencement of this Act, other than the Constitution, section 2 of this Act prevails.

OPTION 1

Substitute clause 5 with the following clause:

Conflict with other laws

5. Subject to section 3, section 2 of this Act prevails in the event of a conflict between section 2 of this Act and any other law in force immediately before the commencement of this Act, other than the Constitution.

FOPTION 2E

Delete clause 5.

CLAUSE 6

Short title and commencement

6. This is the Limitation of Legal Proceedings against Government Institutions Act, 2000, which comes into operation on a date fixed by the President by proclamation in the Gazette.

Substitute short title with any of the following options:

FOPTION 1E

6. This is the [Limitation] Institution of Legal Proceedings against [Government Institutions] Organs of State Act, 2000, which comes into operation on a date fixed by the President by proclamation in the Gazette.

OPTION 2

6. This is the [Limitation of] Legal Proceedings against [Government Institutions] Organs of State Act, 2000, which comes into operation on a date fixed by the President by proclamation in the Gazette.

NEW SCHEDULES

OPTION

Insert the following new Schedules:

SCHEDULE 1

CONSTITUTIONAL INSTITUTIONS

The Public Protector

The Human Rights Commission

The Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities

The Commission for Gender Equality

The Independent Electoral Commission

The Independent Broadcasting Authority

The Financial and Fiscal Commission

The Commission on the Remuneration of Persons Holding Public Office

The Pan South African Language Board

The Municipal Demarcation Board

SCHEDULE 2

NATIONAL PUBLIC ENTITIES

A. Major National Public Entities:

Air Traffic and Navigation Services Company

Airports Company

Alexander Bay Development Corporation

Armaments Corporation of South Africa

Atomic Energy Corporation of South Africa Limited

Central Energy Fund

DENEL

Development Bank of Southern Africa

ESKOM

Independent Development Trust

Industrial Development Corporation of South Africa Limited

Land and Agricultural Bank of South Africa

SA Abattoir Corporation

SA Broadcasting Commission

SA Forestry Company Limited

SA Post Office Limited

Telkom SA Limited

Transnet Limited

Trans-Caledon Tunnel Authority

Any subsidiary or entity under the ownership control of the above public entities

B. Other National Public Entities:

Accounting Standards Board

Agricultural Credit Board

Agricultural Research Council

Air Services Licensing Council

Board on Tariffs and Trade

Competition Board

Certification Council for Technikon Education

Commission for Conciliation, Mediation & Arbitration

Compensation Board

Council for Geoscience

Council for Mineral Technology (Mintek)

Council for Nuclear Safety

Council for Scientific and Industrial Research

Financial Services Board

Human Sciences Research Council

Judicial Service Commission

Legal Aid Board

National Agriculture Marketing Council

National Economic, Development and Labour Council

National Electricity Regulator

National Film Board

National Housing Board

National Housing Finance Corporation

National Monuments Council

National Parks Board

National Road Fund

National Small Business Council

National Youth Commission

Road Accident Fund

SA Bureau of Standards

SA Certification Council

SA Civil Aviation Authority

SA Housing Development Board

SA Housing Fund

SA Housing Trust Limited

SA Medical Research Council

SA Qualifications Authority

SA Revenue Service

SA Road Board

SA Road Safety Council

SA Telecommunications Regulatory Authority

SA Tourism Board

State Information Technology Agency

Unemployment Insurance Fund

Wage Board

Water Research Commission

Any subsidiary or entity under the ownership control of the above national public entities

SCHEDULE 3

PROVINCIAL PUBLIC ENTITIES

A. Eastern Cape:

Centre for Investment and Marketing in the Eastern Cape

Eastern Cape Agricultural Bank

Eastern Cape Appropriate Technology Unit

Eastern Cape Arts Council

Eastern Cape Consumer Affairs Court

Eastern Cape Development Corporation

Eastern Cape Development Tribunal

Eastern Cape Gambling and Betting Board

Eastern Cape Liquor Board

Eastern Cape Local Road Transport Board

Eastern Cape Museums

Eastern Cape Provincial Housing Board

Eastern Cape Provincially Aided Libraries

Eastern Cape Regional Authorities

Eastern Cape Socio-Economic Consultative Council

Eastern Cape Tender Board

Eastern Cape Tourism Board

Eastern Cape Township Board

B. Free State:

Free State Mangaung Nursing College

Free State Rural Foundation

Free State Rural Strategy Unit

Free State Liquor Board

Free State Gambling and Gaming Board

Free State Tender Board

Free State Tourism Board

Free State Youth Commission

C. Gauteng:

Gauteng Economic Development Agency

Gauteng Gambling Board

Gauteng Tourism Authority

Gauteng Consumer Affairs Court

Gauteng Development Tribunal

Gauteng Education and Training Board

Gauteng Municipal Demarcation Board

Gauteng Provincial Housing Board

Gauteng Services Appeal Board

Gauteng Townships Board

D. KwaZulu-Natal:

KwaZulu-Natal Appeals Tribunal

KwaZulu-Natal Development & Services Board

KwaZulu-Natal Development Tribunal

KwaZulu-Natal Gambling Board

KwaZulu-Natal House of Traditional Leaders

KwaZulu-Natal Monuments Council

Natal Sharks Board

KwaZulu-Natal Private Townships Board

KwaZulu-Natal Town and Regional Planning Commission

KwaZulu-Natal Townships Board

KwaZulu-Natal Provincial Peace Committee

KwaZulu-Natal Tender Board

KwaZulu-Natal Tourism Authority

KwaZulu-Natal Liquor Board

KwaZulu-Natal Conservation Services

KwaZulu-Natal Local Roads Transportation Board

KwaZulu-Natal Marketing Initiative

KwaZulu-Natal Economic Council

KwaZulu-Natal Taxi Task Team

KwaZulu-Natal International Airport Development Initiative

S.A. Life Saving

Natal Trust Fund

Natal Arts Trust

E. Mpumalanga:

Mpumalanga Gambling Board

Mpumalanga Housing Board

Mpumalanga Parks Board

Mpumalanga Tender Board

F. Northern Cape:

Northern Cape Economic Development Unit

Northern Cape Gambling Board

Northern Cape Housing Board

Northern Cape Liquor Board

Northern Cape Local Transportation Board

Northern Cape Provincial Tender Board

Northern Cape Tourism Authority

Northern Cape Youth Commission

G. Northern Province:

Northern Province Agricultural and Rural Development Corporation

Northern Province Appeal Tribunals

Northern Province Development Tribunals

Northern Province Panel of Mediators

Northern Province Planning Commission

Northern Province Provincial Tender Board

Northern Province Tourism Board

Northern Province Gaming Board

Northern Province Liquor Board

Northern Province Local Business Centres

Northern Province Housing Board

Northern Province Investment Initiative

Gateway International Airport

H. North West:

NW Agricultural Services Corporation

NW Arts Council

NW Communication Service

NW Mmabana Cultural Foundation

NW Ombudsman

NW Gambling Board

NW Tender Board

NW Parks and Tourism Board

NW Housing Corporation

I. Western Cape:

WC Investment and Trade Promotion Agency

WC Provincial Tender Board

WC Tourism Board

WC Gambling and Racing Board

WC Housing Development Board

WC Liquor Board

WC Provincial Development Council

Any subsidiary or entity under the ownership control of the above provincial public entities

SCHEDULE 4

South African National Parks

Office of the Auditor-General

South African Maritime Safety Authority

SCHEDULE 5

(Acts amended or repealed by section [4] 5)

 

No and year of law

Short title

Extent of amendment[s] or repeal

Act No. 38 of 1927

Black Administration Act, 1927

The repeal of section 32A.

Act No. 57 of 1951

Merchant Shipping Act, 1951

1. The repeal of section 343.

2. The amendment of section 344 by the deletion of subsection (4).

Act No. 44 of 1957

Defence Act, 1957

The repeal of section 113.

Act No. 8 of 1959

Correctional Services Act, 1959

The repeal of section 90.

Act No. 91 of 1964

Customs and Excise Act, 1964

The substitution for section 96 of the following section:

"Notice of action and period for bringing action

96. (1) [No] Subject to the provisions of subsection (3), no legal proceedings shall be instituted against the State, the Minister, the Commissioner or an officer for anything done in pursuance of this Act until one month after delivery of a notice in writing setting forth clearly and explicitly the cause of action, the name and place of abode of the person who is to institute proceedings and the name and address of his or her attorney or agent, if any.

(2) Subject to the provisions of subsection (3) and section 89, the period of extinctive prescription in respect of legal proceedings against the State, the Minister, the Commissioner or an officer on a cause of action arising out of the provisions of this Act shall be one year and shall begin to run on the date when the right of action first arose.

(3) This section does not apply to the recovery of a debt contemplated in section [2] 3(1) of the [Limitation] Institution of Legal Proceedings against [Government Institutions] Organs of State Act, 2000.".

Act No. 94 of 1970

Limitation of Legal Proceedings (Provincial and Local Authorities) Act, 1970

The repeal of the whole.

Act No. 54 of 1971

National Roads Act, 1971

The amendment of section 25 by the deletion of subsection (1).

Act No. 18 of 1973

Mental Health Act, 1973

The amendment of section 68 by the deletion of subsection (4).

Act No. 90 of 1979

Education and Training Act, 1979

The repeal of section 42A.

Act No. 70 of 1988

Education Affairs Act (House of Assembly), 1988

The repeal of section 108.

Act No. 122 of 1992

Audit Arrangements Act, 1992

The repeal of section 52.

Act No. 130 of 1993

Compensation for Occupational Injuries and Diseases Act, 1993

The repeal of section 44.

Act No. 38 of 1994

Intelligence Services Act, 1994

The repeal of section 26.

Proclamation No. 103 of 1994

Public Service Act, 1994

The repeal of section 39.

Act No. 68 of 1995

South African Police Service Act, 1995

The repeal of section 57.

Act No. 111 of 1998

Correctional Services Act, 1998

The repeal of section 130.