Institution of Legal Proceedings Against Organs of State Bill: discussion

Meeting report

JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
13 September 2000
INSTITUTION OF LEGAL PROCEEDINGS AGAINST ORGANS OF STATE BILL: CONSIDERATION

Relevant document:
Draft 5 : Institution of Legal Proceedings against Organs of State Bill

Chairperson: Advocate JH De Lange

SUMMARY
The Committee completed deliberating on the Bill and the Department was requested to compile all the proposed amendments into a concise text.

The Chairperson proposed that the Committee should take a resolution to say that urgent steps be taken to repeal the whole of the Black Administration Act, 1927 to bring it in line with the Constitution. The Committee would require a response from all departments that are affected by this Act. The message would also be conveyed to the Presidency.

MINUTES
Clause 4 Notice of intended legal proceedings to be given to organ of state
Subclause (3)
The Bill states that where a person has not instituted proceedings, the debt would be deemed to have become due at the commencement of the Act. The Chairperson said that subclauses (3)(a) and (b) should be so drafted as to provide that the part of the prescription that has already run will be deducted from the prescription period at the commencement of the Act.

Mr Labuschagne of the Department said (b) regulates the institution of proceedings where the debt became due before the commencement of the Act and the creditor institutes action after the commencement of the Act. For purposes of giving notice, only the debt would be regarded as having become due on the date of commencement of the Act.

The Chairperson said (b) should end with the word "Act" and then add to that to say that only for the purpose of the notice.

Mr Labuschagne pointed out that (b) would not make sense if it ends with the word "Act" since it should be read with (a).

Dr Delport (DP) suggested a provision be drafted to say that prescription would not expire before the end of the six months notice period or a year after the commencement of the Act. This is to prevent a situation where, because the cause of action arose before the commencement of the Act and prescription had started running, a matter would prescribe while the creditor gives notice.

Mr Labuschagne suggested that all debts that became due before the commencement of the Act be dealt with in terms of the old regime and not make the Bill retrospective at all. The Chairperson agreed this view should be looked at.

The Chairperson said in terms of subclause (3)(a) and (b) for a debt to be due, the creditor must have knowledge of the identity of the organ of state and the facts from which the debt has arisen. The debt should have become due, and not have prescribed, before the commencement of the Act to be regarded as having become due on the date of commencement of the Act.

Mr Labuschagne said that (b) does not qualify (a) but adds another dimension to it that a debt which has not prescribed at the commencement of the Act and which became due before such commencement shall be deemed to have become due on the date of commencement of the Act. This is only for the purpose of giving notice and does not affect prescription.

The Chairperson said subclause (4)(b) must be made subject to any provision on extinction of debts by prescription. This is because a court cannot be required to grant condonation if prescription has already run.

Mr Labuschagne said the suggestion makes sense but he would check it first.

Subclause (4)
In (4)(b)(i) the Committee agreed on "and" as the better formulation.

Ms Jana (ANC) felt that "unreasonably" should qualify prejudice in (4)(b)(ii).

The Chairperson argued that this goes against the intention of the Bill which is to give organs of state a notice before legal proceedings are taken against them so that they can consider whether to defend an action or not and to investigate the merits of such action. When Ms Jana insisted that the qualifier be included in the clause, the Chairperson flagged the issue to be dealt with in politcal party caucus.

The Chairperson felt that to make the provision in subclause(c) an absolute qualifier it should be put before (a) and (b). The Committee agreed on subclause (d).

Subclauses (5) and (6)
The Committee agreed to these.

Clause 5 Service of process
Subclause (1)
Mr Labuschagne said it had been decided to add subclause (1)(b) so that service can be effected on officials not covered by the reference to the rules of Court specifying how service of process should take place.

The Chairperson said it should be made clear in (1)(b)(i) that the institution of proceedings against the Deputy President is only as contemplated in the Act.

The Chairperson asked about the possibility of introducing service on the State Attorney under the clause. Mr Swart (ACDP) said the State Attorney is covered by (1)(a).

The Chairperson found subclause (1)(a) contradictory as it said service "must" be in the manner prescribed in the rules but in (b) another manner of service is introduced and the provision says "may".

Mr Labuschagne said what the provision says is that although what is said in subclause (1)(a) is the principle one may deviate from it in the instances mentioned in (b). He asked to confer with the State Law Advisors on this provision.

Subclause (2)
The idea here is to give the organ of state a chance to decide whether they actually want to defend the action or not.

Ms Chohan-Kota (ANC) said the use of "process" is misleading as it talks about the notice but what is contemplated here is a summons.

Subclause (3)
Mr Labuschagne asked the Committee to take a decision on which phrase to use in subclause (3) between "immediately following upon the last day" and "after the expiry". The Committee favoured "after the expiry" as the clearer formulation.

Clause 6 Repeal and amendment of laws
The Chairperson felt that subclause (2) should be moved to Clause 2 dealing with the prescription period.

However, Mr Labuschagne said that subclause (2) does not change the prescription period but merely deals with the regime that is applied if the legal proceedings were instituted before the commencement of the Act.

Clause 7 Conflict with other laws
Agreed to.

Clause 8 Short title and commencement
Agreed to.

Schedule of Acts amended or repealed by Section 6
Black Administration Act, 1927
Ms Jana (ANC) asked why this Act is still being repealed piece-meal instead of being repealed all at once. She said it is a major indictment to the Committee that the Black Administration Act has not yet been done away with and the country is in the sixth year of its democratic dispensation.

Members pointed out that the Act is under the jurisdiction of the Department of Home Affairs and thus cannot be repealed by the Committee.

The Chairperson proposed that the Committee should take a resolution to say once again the Black Administration Act is being repealed piecemeal; the Constitutional Court having struck down parts of the Act, the Committee recommends that urgent steps be taken to bring the Act in line with the Constitution. The Committee wants a response within six months from all departments that have something to do with the Act. This also has to be brought to the attention of the Presidency. The actual wording of the resolution still needs to be worked on but it will be along these lines.

Customs and Excise Act, 1964
The Chairperson instructed Mr Labuschagne to find someone to provide a written explanation of what section 96(2) of the Act means.

The South African National Roads Agency Ltd and National Roads Act, 1998
The Chairperson suggested that a resolution of the Committee should say that subsections (1) and (2) of section 59 are removed and because of this the basis for subclause (3) falls away. The Committee should say they do not express any view on the constitutionality of subclause (3) and that the amendment to the subclause is purely a formality.

In conclusion, the Chairperson asked Mr Labuschagne to come up with a condensed document carrying all the proposed amendments as discussed. The meeting was adjourned.