LIM 34

WORKING DOCUMENT: DRAFT 8

REPUBLIC OF SOUTH AFRICA

INSTITUTION OF LEGAL PROCEEDINGS AGAINST ORGANS OF STATE BILL

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(As presented by the Portfolio Committee on Justice and Constitutional Development (National Assembly), after consideration of the Limitation of Legal Proceedings against Government Institutions Bill [B 65—99]) (The English text is the official text of the 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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(Soos voorgelê deur die Portefeuljekomitee oor Justisie en Staatkundige Ontwikkeling (Nasionale Vergadering), na oorweging van die Wetsontwerp op die Beperking van Regsgedinge teen Owerheidsinstellings [B 69—99]) (Die Afrikaanse teks is die amptelike vertaling van die Wetsontwerp)

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(MINISTER VIR JUSTISIE EN STAATKUNDIGE ONTWIKKELING)

[W 65B - 99]

limit8

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 which are shaded indicate changes to the Bill proposed by the Committee on 19/09/2000.

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B I L L

To regulate the prescription of certain debts for which certain organs of state are liable; to make [fresh] provision for notice requirements in connection with the institution of legal proceedings against [government institutions] certain 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:—

Definitions

1. (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 the 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 liable for payment of damages, including any delict or liability without fault in terms of a statutory provision, but does not include a debt arising from a breach of contract;

[(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)]

(iv) "fixed date" means the date of commencement of this 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)]

(v) "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 excludes a provincial administration; or

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

(vi) "notice" means a notice contemplated in section 3(1)(a);

(vii) "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 exercising a power or performing a function in terms of the Constitution, or a provincial constitution referred to in section 142 of the Constitution;

(d) the Commissioner for the South African Revenue Service, in so far as he or she performs a duty imposed, or exercises a power conferred, on him or her by the Customs and Excise Act, 1964 (Act No. 91 of 1964), or an officer as defined in section 1 of that Act;

(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 person for whose debt an organ of state contemplated in paragraphs (a) to (f) is liable;

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

(viii) "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.

(2) For purposes of this Act, legal proceedings are instituted by service of any process, excluding a notice, on an organ of state in which a creditor claims payment of a debt.

Amendment or repeal of laws, prescription of debts and transitional arrangements

[3.]2. (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) This Act does not apply [in relation] to any debt—

(a) [any debt] which has been extinguished by prescription before the fixed date; or

(b) in respect of which any legal proceedings [in respect of a debt which have been] were instituted before the fixed date {[and any such legal proceedings must be continued and concluded as if this Act had not been passed]}.

(3) Subject to section [2 does not derogate from the provisions of] 3, a debt which became due—

(a) before the fixed date and in respect of which legal proceedings [have not been] were not instituted before that date; or

(b) after the fixed date,

will be extinguished by prescription as contemplated 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)] [section 16] Chapter III of the Prescription Act, 1969 (Act No. 68 of 1969).

(4) (a) The expired portion of the period of prescription of a debt referred to in subsection (3)(a), must be deducted from the period of prescription contemplated in {[section 16]} Chapter III of the Prescription Act, 1969.

(b) If the unexpired portion of the period of prescription of a debt referred to in subsection (3)(a) will be completed within twelve calender months after the fixed date, that period of prescription must be regarded as not having been completed before twelve calender months have elapsed after [that date] the fixed date.

Notice of intended legal proceedings to be given to [government institution] organ of state

[2.]3 (1) [Subject to this Act, no] 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 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 in question has consented in writing to the institution of legal proceedings without such notice.

(2) [The] A notice [contemplated in subsection (1)] must—

(a) within six calender months from the date on which the debt became due, be [delivered by hand or sent by certified mail to] served on the [person who is to be cited as defendant or respondent, as the case may be,] organ of state in accordance with section 4(1) [within six months from the date upon which the debt became due]; and

(b) briefly set out [the facts relied on for the intended legal proceedings]

(i) the facts giving rise to the debt; and

(ii) such particulars of such debt as are within the knowledge of the creditor.

(3) For [the] purposes of subsection (2)[(b)] (a)

(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] giving rise to 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—

(i) which has not been extinguished by prescription; and

(ii) in respect of which legal proceedings [have not been] were not instituted,

before [such] the [commencement] fixed date, [such debt] must be regarded as having become due on [the] that date [of commencement of this Act].

(4) (a) If [a government institution] an organ of state relies on a creditor's failure to [give] serve a 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] it is satisfied that—

(i) the debt has not been extinguished by prescription;

(ii) good cause exists for the failure by the creditor; [or] and

(iii) 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] grant leave to institute the legal proceedings in question [subject to any conditions regarding notice to the government institution which the court may lay down] on such conditions regarding notice to the organ of state as the court [deems] may deem appropriate.

[(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.

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

Service of notice

4. (1) A notice must be served on an organ of state by delivering it by hand or by sending it by certified mail or, subject to subsection (2), by sending it by electronic mail or by transmitting it by facsimile, in the case where the organ of state is—

(a) a national or provincial department mentioned in the first column of Schedule 1, 2 or 3 to the Public Service Act, 1994 (Proclamation No. 103 of 1994), 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;

(b) a municipality, to the municipal manager appointed in terms of section 82 of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998);

(c) a functionary or institution referred to in paragraph (c) of the definition of "organ of state", to the chairperson, head, chief executive officer, or equivalent officer, of that functionary or institution, or where such functionary is a natural person, to that natural person;

(d) the Commissioner for the South African Revenue Service or an officer referred to in paragraph (d) of the definition of "organ of state", to that Commissioner;

(e) the South African Maritime Safety Authority, to the chief executive officer of that Authority appointed under section 22 of the South African Maritime Safety Authority Act, 1998 (Act No. 5 of 1998);

(f) the South African National Roads Agency Limited, to the chief executive officer of that Agency appointed under section 19 of The South African National Roads Agency Limited and National Roads Act, 1998 (Act No. 7 of 1998); or

(g) a person referred to in paragraph (g) of the definition of "organ of state", to that person.

(2) If a notice has been sent by electronic mail or transmitted by facsimile as contemplated in subsection (1), the creditor must—

(a) take all reasonable steps to ensure that the notice has been received by the officer or person to whom it was so sent or transmitted; and

(b) within seven days after the date upon which that notice was so sent or transmitted, deliver by hand or send by certified mail a certified copy of that notice to the relevant officer or person referred to in subsection (1), which must be accompanied by an affidavit by the creditor or the person who sent or transmitted the notice [which must]

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

(ii) containing any proof that it was sent or transmitted;

(iii) setting out the steps taken in terms of paragraph (a); and

(iv) indicating whether confirmation of the receipt of the notice has been obtained and, if applicable, must indicate the name of the officer or person who has given that confirmation.

Service of process

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

(b) Despite paragraph (a), any process in terms of which legal proceedings contemplated in section 3(1) are instituted and in which the—

(i) Deputy President, in respect of anything done pursuant to the Intelligence Services Act, 1994 (Act No. 38 of 1994), or the Minister for Intelligence is the defendant or respondent, may be served on the Director-General: National Intelligence Agency or the Director-General: South African Secret Service, as the case may be;

(ii) Minister of Safety and Security is the defendant or respondent, may be served on—

(aa) the National Commissioner of the South African Police Service as defined in section 1 of the South African Police Service Act, 1995 (Act No. 68 of 1995); or

(bb) the Provincial Commissioner of the South African Police Service as defined in section 1 of the South African Police Service Act, 1995, of the province in which the cause of action arose; or

(iii) Minister of Correctional Services is the defendant or respondent, may be served on—

(aa) the Commissioner of Correctional Services appointed under section 3(3) of the Correctional Services Act, 1998 (Act No. 111 of 1998); or

(bb) the Provincial Commissioner as defined in section 1 of the Correctional Services Act, 1998, of the province in which the cause of action arose.

(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, where applicable, has been served on the organ of state in terms of section 3(2)(a).

(3) If any process referred to in subsection (1) has been served 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 after the expiry of the said period.

(4) For purposes of subsection (2), the period of one calender month starts to run on the day on which the notice was served as contemplated in section 3(2)(a).

[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.

(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.]

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.]

Short title [and commencement]

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].

SCHEDULE

(Acts amended or repealed by section [4] 2(1))

 

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.".]

The repeal of section 96.

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. 7 of 1998

The South African National Roads Agency Limited and National Roads Act, 1998

The amendment of section 59—

(a) by the deletion of subsections (1) and (2); and

(b) by the substitution for subsection (3) of the following subsection:

"(3) Neither the Agency nor [any person mentioned in subsection (1)(b)]

(a) any of the members of the Board;

(b) the Chief Executive Officer;

(c) any of the other employees of the Agency acting in the performance of their duties;

(d) any person acting on behalf of the Agency on the authority of the Board; or

(e) any person who operates or has constructed a national road,

will be liable for any damage or loss suffered by any person through the use of any part of the national road other than the roadway or as a result of the closure or deviation of a national road under this Act.".

Act No. 111 of 1998

Correctional Services Act, 1998

The repeal of section 130.