REPUBLIC OF SOUTH AFRICA

INSTITUTION OF LEGAL PROCEEDINGS AGAINST ORGANS OF STATE BILL

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(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B 65B - 99]

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REPUBLIEK VAN SUID-AFRIKA

WETSONTWERP OP DIE INSTEL VAN REGSGEDINGE TEEN STAATSORGANE

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(MINISTER VIR JUSTISIE EN STAATKUNDIGE ONTWIKKELING)

[W 65B - 99]

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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 an option.}

*{ } *{Words in brace brackets marked with an asterisk and which are shaded indicate changes proposed by the State Law Advisers.}

Words in italics and which are shaded indicate changes to the Bill proposed by the Committee on 05/09/2000.

Words in [bold type in square brackets and which are struck out] indicate deletions from, while words which are double underlined indicate insertions in, the Bill as proposed by the Committee on 07/09/2000.

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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;

(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;

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

(f) the South African National Roads Agency Limited contemplated in section 3 of The South African National Roads Agency Limited and National Roads Act, 1998 (Act No. 7 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] any [officer] person for whose [acts or omissions] debt an organ of state contemplated in paragraphs (a) to (f) is liable}.

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

[3.]2. Subject to section [2 does not derogate from the provisions of] 4, 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] section 16 of the Prescription Act, 1969 (Act No. 68 of 1969)}.

(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.] The second and any subsequent notice in terms of subsection (1)(a) must contain a list of the names of all the functionaries and institutions which have been designated as organs of state in terms of this section.} ]

[2.]4 (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] in question} 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] in question} 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 on 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) the Commissioner for the South African Revenue Service or an officer referred to in paragraph (d) of the definition of "organ of state", be delivered, sent or transmitted to that Commissioner;

(v) 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 chief executive officer of that Authority appointed under section 22 of the South African Maritime Safety Authority Act, 1998, *{[or the person who is acting as such]}; or

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

(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] prevented} 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] section 16 of the Prescription Act, 1969}, 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.

5. (1) (a) Any process by which any legal proceedings contemplated in section 4(1) are instituted must be served in the manner prescribed in the rules of the court *{[concerned] in question} in respect of the service of process.

(b) Any process by which legal proceedings contemplated in section 4(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 4(1), where applicable, has been served on the organ of state as contemplated in section 4(2)(b).

(3) If any process referred to in subsection (1) has been served {[on the organ of state or the relevant executing authority] as contemplated in that subsection} 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] after the expiry} of the said period.

[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.

Short title and commencement

[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.