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JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
29 August 2000
LIMITATION OF LEGAL PROCEEDINGS AGAINST GOVERNMENT INSTITUTIONS BILL
The Department drafter presented the second draft of the Limitations of Legal Proceedings against Government Institutions Bill to committee members. Alterations and/or additions were discussed and it was resolved that a document showing the preferred options for each clause be prepared for presentation to the committee on Wednesday 6 September 2000 (this may be changed to 05/09/00).
For ease of use, a term, possibly "Prescription Acts", will be applied to the cluster of Acts dealing with prescription and these will be defined at the beginning of the Act. A resolution will be drafted stating that the Act deals with harmonising all Acts dealing with prescriptive extinction but does not address these prescriptive periods.
The Chair noted that very few members were present.
Limitations of Legal Proceedings against Government Institutions Bill
Mr Labuschagne of the Justice Department and Mr Cronjé of the SA Law Commission continued from the previous day, presenting the changes effected to the Bill as reflected in the Working Document: Draft 2.
New Clause 2 Designation of functionaries and institutions as organs of state
Mr Labuschagne pointed out the addition of a new 'Clause 2' and explained its function as defining the criteria to which organisations and institutions must comply in order to be categorised as an 'organ of state'. He noted that it was important that the issue of executing authority be raised here.
Old Clause 2 Notice of intended legal proceedings to be given to organ of state
Options 1A and 1B [substitute for subsection (1); p.11 of Working Document]
Attention was drawn to the addition of the words "or its" after "his or hers" so as to include both natural and juristic persons. The difference between the two options was explained: in Option 1B the clause has been separated into two subclauses for clarity sake. The committee indicated that they felt that this was the better option.
Options 2A and 2B [added to subsection (1); p.11 & 12 of Working Document]
Mr Labuschagne proposed that these be scrapped in favour of New Clause 4 (Service of process) relating to the service of a summons.
Option 2B [added to subsection (2); p.15 of Working Document]:
This second Option B deals with the notice period before a summons. He asked the committee to note that the period of one month related only to the period of notice before summons, as well as the requirement that both the notice and summons be served on the same person.
Options 1B and 1C [substitute for subsection (2); p.13 of Working Document]
These options relate to the regulation of notice by email / fax and need to be read with Options 3A and 3B on p.15.
The Chair believed that 1C was the more desirable option, but that the requirement of "within six months" should be separated in order to ensure that it does not get 'lost' in the wording as many concepts / requirements are encompassed in this one sentence.
Option 3A and 3B [added to subsection (2); p.15 of Working Document]:
Mr Labuschagne saw Option 3B as the preferred option as it ensures that as a backup to the fax / email notice being served, a printed copy be served by hand or certified mail.
Option [substitute for subsection (3); p.16 of Working Document]:
The chair asked if 3 (b) in this option would not allow for the revival of claims?
Mr Cronjé suggested that this clause had been rewritten to ensure that the unconstitutionality of the old laws was addressed.
The Chair replied that the wording would not have this effect. Further it would have the effect of making the Act applicable as if it had been in existence when it had not been constituted yet. When actions have been instituted they would have to be completed under the old legislation, but where the events giving rise to the possible action had happened under the old Act, but actions were only commenced under the new Act, the new Act would apply.
Option [substitute for subsection (4); p.16 of Working Document]:
Option [substitute for subsection (5); p.17 of Working Document]:
The committee had previously requested that these two be condensed into one subclause as an option. Mr Labuschagne pointed to Option 2 as achieving this (p.16).
Regarding subsection (4), the Chair, considering the case of Mohlomi vs Minister of Defence 97(1) SA124(CC), stated that both 'fault' and 'prejudice' need to be reflected as the concept of 'good cause' may prove to be too wide for consistent interpretation by the courts.
Mr Jeffrey (ANC) asked where lack of knowledge would be encompassed under these concepts: would it equal fault on the part of the claimant?
The Chair replied that lack of knowledge was dealt with under lack of fault, as well as in subsection (3) (a) [p.15/16].
Regarding combining subsections (4) and (5) which is Option 2 on p. 16/17, the Chair said that it would be better to keep both subsections separate, but break up subclause (c) to indicate clearly that the court may either condone the application or give it conditions (Option B).
Mr Labuschagne voiced the concern that Option B may lead to difficulties as a result of the accidental omission of an Act (as had been the case with the MVA Act).
The Chair replied that it is better for the courts to have exact guidelines, and that the dilemma may be avoided with the inclusion of the words " or any law relating to extinction of debt". This would keep both options, as well as cover any future Acts which may be passed.
Subsection (6); p.17 of Working Document]:
Mr Labuschagne proposed that subsection (6) be deleted. Ms Chohan-Kota concurred, stating that this related to notice periods, which had already been dealt with previously.
New Clause 4 Service of process
The Chair stated that subsections (2) and (3) had been included at the request of the South African Police Services in order to give them the space to be able to decide whether to defend an action or to settle. After one month has lapsed, the normal rules of court apply. Notice of summons can be served sooner than one month, but will apply only after the one month period has expired.
The Chair asked Mr Labschagne about the flagged issue of the "executing authority" definition in Clause 1. He replied that this would be investigated. Mr Swart (ACDP) stated that standing practices have developed with the State Attorney's Office with regard to executing authority, and asked that these be included in any investigation.
The Chair underlined that the intention of the Act was not to change service procedures in the Superior and Magistrate's Courts, as this may prejudice some applicants as a result of their attorney not being aware of the new requirements. The intention was to extend the possibilities of service delivery. He also asked Mr Cronjé to speak to the Rules Board on this issue.
Clause 3 Prescription of debts
Mr Cronjé drew the committee's attention to Clause 3 and stated that this should be included as debt extinction is not dealt with under Clause 2. The Chair asked for suggestions of better ways of including this, and asked the drafter to investigate.
The Chair stated that this needed to be the first clause of the Act as the Act should first deal with the concept of prescription, and then the limitation of such prescription.
Ms Chohan-Kota stated that all the proposed options concerned her, and proposed that a thorough audit be done of the prescriptive Acts. The Chair echoed that this should perhaps be referred to the Law Commission.
The Chair asked Mr Cronjé of the Law Commission to tabulate by the next meeting which Acts were being repealed, as well as the situation as it would stand after this has happened. Mr Cronjé agreed, stating that all limitations would be repealed in favour of a general limitation that would apply.
The Chair suggested for ease of use, that a term be derived for the cluster of Acts dealing with prescription, and that these can be defined in the beginning of the Act. The suggestion was made to call these the "Prescription Acts".
The Chair also reminded the drafter to deal with the MVA Act under "organs of state", as well as under the repeal clauses, plus occupational diseases and savings. Further Schedule 5 needs to include the MVA Act. It needs to be ascertained whether the new MVA Act will also include notice periods, in which case it will need to be included in Clause 3.
The Chair made the following suggestions:
- Old Clause 4(2) be deleted;
- Clause 5 be deleted as in its Option 2;
- Clause 6 indicate that Option 1 was preferable.
The Chair also suggested that two resolutions be drafted:
- that the Act deals with harmonising all Acts dealing with prescriptive extinction, and does not address these prescriptive periods.
- what the Act is actually doing.
He asked the drafters to draft two documents for the following meeting on 06/09/00:
1. One detailing the changes and suggestions that have been made at this meeting
2. The second one would take the preferred option under each clause and synchronise it into one "draft Act".
He also asked that a copy of the Schedule be circulated to members.
During the course of the meeting, the Chair asked that committee members refrain from approaching him in order to discuss their personal views on matters. He asked that these matters be taken to the political parties, who could then raise them in this forum.