LIMITATION OF LEGAL PROCEEDINGS AGAINST GOVERNMENT INSTITUTIONS BILL

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(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B 65 - 99]

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REPUBLIEK VAN SUID-AFRIKA
WETSONTWERP OP DIE BEPERKING VAN REGSGEDINGE TEEN OWERHEIDSINSTELLINGS

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(MINISTER VIR JUSTISIE EN STAATKUNDIGE ONTWIKKELING)

[W 65 - 99]

limit3a

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.}

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B I L L

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

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

(i) "creditor" means a person who intends to institute legal proceedings against [a government institution] 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;

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

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

(iv) "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) Parliament, means the Secretary of Parliament;

(e) a provincial legislature, means the Secretary of the provincial legislature concerned;

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

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

(h) a functionary or institution referred to in paragraph (c), (d), (e) or (f) 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;

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

(vi) "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;

(vii) "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;

(viii) "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);

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

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

(g) any officer who acted, or failed to act, within the course and scope of his or her duties and for which actions or omissions an organ of state contemplated in paragraphs (a) to (f) is liable for the payment of a debt.

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

(x) "Prescription Act" means—

(a) section 344 of the Merchant Shipping Act, 1951 (Act No. 57 of 1951);

(b) section 2(6)(b) of the Apportionment of Damages Act, 1956 (Act No. 34 of 1956);

(c) section 96 of the Customs and Excise Act, 1964 (Act No. 91 of 1964);

(d) Chapter III of the Prescription Act, 1969 (Act No. 68 of 1969); or

(e) any other law providing for the extinction of debts by prescription;

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

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,

(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.

(6) The Minister must, within 14 days after 30 June and 31 December in each year, by notice in the Gazette publish a list of the names, and such other information as the Minister deems appropriate, of the functionaries and institutions which, prior to the date of publication of such notice, have been designated as organs of state in terms of this section.

[2.]3 (1) Subject to this Act, no legal proceedings for the recovery of a debt [arising from delict] may be instituted against [a government institution] an organ of state unless—

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

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

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

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

[(b)] (ii) within six calender months from the date upon which the debt became due, 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,] organ of state [within six months from the date upon which the debt became due].

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

(i) a national or provincial department 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};

(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};

(v) the South African Roads Board referred to in paragraph (e) of the definition of "organ of state", be delivered, sent or transmitted to the chairperson of that Board referred to in section 3(1) of the South African Roads Board Act, 1988, {or the person who is acting as such};

(vi) the South African Maritime Safety Authority referred to in paragraph (f) of the definition of "organ of state", be delivered, sent or transmitted to the chairperson of the Board of the South African Maritime Safety Authority referred to in section 12(1) of the South African Maritime Safety Authority Act, 1998, {or the person who is acting as such}; or

(vii) an officer referred to in paragraph (g) of the definition of "organ of state", be delivered, sent or transmitted to that officer.

(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)(ii) a debt—

(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 and which has not been extinguished by prescription, before [such] the commencement of this Act, [such debt] must be regarded as having become due on the date of commencement of this Act.

(4) (a) If [a government institution] 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] organ of state was not [unreasonably] prejudiced by the failure.

(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] Prescription Act, grant leave to institute [the] legal proceedings [subject to any conditions regarding notice to the government institution which the court may lay down].

(d) Leave granted in terms of paragraph (c) may be subject to such conditions regarding notice to the organ of state as the court deems appropriate.

4. (1) (a) Any process by which any legal proceedings contemplated in section 3(1) are instituted must be served in the manner prescribed in the rules of the court concerned in respect of the service of process.

(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, if any, 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, may 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 organ of state as contemplated in section 3(2)(b).

(3) If any process referred to in subsection (1) has been served on the 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.

[3.]5. Subject to section [2 does not derogate from the provisions of] 3, 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), or the Prescription Act, 1969 (Act No. 68 of 1969)] any Prescription Act.

[4.]6. (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.

(2) The provisions of this Act shall not apply in relation any legal proceedings instituted before the commencement of this Act and any such legal proceedings must be continued and concluded as if this Act had not been passed.

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

[6.]8. 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.