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JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
19 April 2000
LIMITATION OF LEGAL PROCEEDINGS AGAINST GOVERNMENTAL INSTITUTIONS BILL: HEARINGS
Documents Handed Out:
South African Police Service (SAPS) Submission (Appendix 1)
Child Welfare Society Submission (Appendix 2)
The South African Police Service (SAPS) and the Child Welfare Society made submissions.
The SAPS submission requested that the Bill grant them special dispensation since they faced more cases than any other government body. Their proposal included that there be made mention of a 30 day period between when a notice of summons was issued, and the commencement of litigation on all delict cases. Secondly, that all notices of intention be served to either the national Commissioner or the appropriate provincial Commissioner. Finally, it was proposed that there be a one month period retained on all cases.
The Chair stated that they would consider their requests "quite favourably."
Representations were also made by the Child Welfare Society, who misunderstood the intent of the Bill.
The committee heard representations by SAPS and the Child Welfare Society.
Presentation by SAPS (see appendix)
The committee was briefed by Adv G Joubert, Dr Tertius Geldenhuys, Mr Johann Knoetz, Manager of Litigation, and Louis Kok, Chief Legal Advisor on behalf of SAPS.
Adv Joubert stated that SAPS is constantly faced with the problem of managing litigation effectively, since they have more cases than any other litigant. It was clearly stated that SAPS is more prone to legal action than any other government Department, and as such they should be given special dispensation. Adv Joubert proposed that s2(1) be expanded to include contractual liability of government institutions. Currently the section only applies to a debt arising from a delict. It was proposed that if the expanded clause was accepted, the rest of the Bill should be changed to provide for the other causes of action.
The Chair questioned why the Bill should be extended to incorporate contracts. He argued that the Bill was not specific to contracts, but deals with such issues as the administration of applications and applications for reviews. He further pointed out that clauses that appear in legislation are not always applicable to contracts, since contracts are usually agreed to after negotiations have occurred. The Chair stated that if the proposed clause was added, it would increase SAPS legal workload, as every failed contract could be condemned by the Court. Adv Joubert replied that they had not experienced any difficulties to date, and had only a "handful" of applications for condemnation.
The Chair asked how the fact that SAPS wanted notice to be given on all causes of action would improve their workload. He also queried why SAPS felt that they should be treated differently than any other government body.
Mr Kok responded that the police must identify the people involved in the application, and then investigate the application. The problem that SAPS was facing was the 30 day time limit between when a notice of summons was issued, and litigation commenced - this was found to be too short. SAPS required an extension to the 30 day time period in order to investigate the application, and determine whether the matter should go to Court. Secondly, it was argued that this Bill needed to make provisions for where a notice of intention should be served. Often, notices of intention are served to a police station, or other police buildings. By the time they reach the Legal Services Office, the 30 day time limit has expired. He proposed that the Bill include a section similar to s57(3)and (4) of the Police Services Act. These clauses specify that notices of intention must be served either to the Minister or to the National Commissioner or one of the provincial commissioners.
There was some confusion amongst the committee as to the 30 day time limit that was being referred to by the SAPS representatives. Mr Kok stated the time period was stipulated in s57(2) of the Police Services Act. It was hoped that they could be granted a one month period retained on all delict cases.
There was a lengthy discussion on the process for legal proceedings. From the discussion, it was articulated that notice of intention to institute legal proceedings must be delivered within six months of when the debt becomes due. It appeared that some member of the committee thought that SAPS was requesting a shortened limitation period. It was later resolved that they were asking for a one month window where summons could not be issued or litigation commence.
The Chair tried to resolve the confusion by stating SAPS position. He stated that under the Police Services Act, it was stipulated that there was a twelve month period of prescription, a one month period between the issuing of a notice of summons, and the commencement of litigation, and that notices of intention must be served to the National Commissioner or one of the provincial commissioners. SAPS were proposing that the Limitation Act provide a special dispensation that grants them the same one month period to delicts, and that notice of intention on all cases should be served to the appropriate Commissioner.
The Chair stated that he understood the problem facing SAPS, and that the committee would consider their requests quite favorably.
Presentation by the Child Welfare Society
The Committee was briefed by Mr Alan Jackson of the Johannesburg Child Welfare Society. The Child Welfare Society had misunderstood the intention of the Bill. The Chair informed Mr Jackson that the Bill deals only with delicts, and will restore prescription for the first time. Mr Jackson was thanked for his submission and asked that he inform the Welfare Society of their misinterpretation.
The meeting was adjourned.
SUBMISSION OF SOUTH AFRICAN POLICE SERVICE (SAPS)
LIMITATION OF LEGAL PROCEEDINGS AGAINST GOVERNMENT INSTITUTIONS BILL
1. General Notice 2616 dated 25 November 1999 refers.
2. The comment of the Department of Safety and Security is set out below for consideration.
3.1 Ad section2(1)
This section only deals with a debt arising from a delict and does not address contractual liability of government institutions which should also be covered by the Act. In this regard it is suggested that the section be amended as follows:
"Subject to this Act no legal proceedings may be instituted against a government institution in respect of a debt arising from a delict, any illegal act performed under or in terms of any law, an alleged failure to do anything which should have been done in terms of any law or any other cause of action, unless the claimant has given the government institution notice..."
Should such a proposal be accepted the rest of the Bill should be changed to provide for the other causes of action.
3.2 Ad section 2(2)(a)
The cause of action relied and should also be stated.
3.3 Ad section 2(a)(b)
This subsection will cause uncertainty and administrative problems. It is suggested that in relation to the South African Police Service section 57(3) and (4) of the South African Police Service Act, 1995 (Act No 68 of 1995) be retained.
SUBMISSION OF THE JOHANNESBURG CHILD WELFARE SOCIETY
LIMITATION OF LEGAL PROCEEDINGS AGAINST GOVERNMENT INSTITUTIONS BILL [B65-99]
We note that the deadline for comments on the above Bill has expired. Nevertheless, it would be appreciated if the considerations set out below could be taken into account:
The welfare sector, including NGO's such as the Johannesburg Child Welfare Society, deals annually with many thousands of people, a large percentage of whom are illiterate and/or ill-informed about their rights, or for other reasons have difficulty in asserting these rights.
It has been our experience that people who are dependent on state grants or pensions often have great difficulty in negotiating the bureaucratic processes that are involved in accessing these payments. Delays and administrative mishaps are common, and corruption and theft have not yet been eliminated from the system. It is not uncommon to wait for many months and even, in some cases, for years before problems are ironed out. Another layer of difficulties may then arise when reviews take place, at which time people may and themselves unjustifiably deprived of their already meager income. Payments sometimes also suddenly just lapse for no apparent reason.
It often takes considerable time before people manage to obtain the necessary information as to how to proceed when payments are withheld. The difficulties that are then experienced in travelling up and down to secure the necessary assistance and use the proper procedures are considerable. Many of those concerned are elderly and/or disabled and have trouble obtaining the necessary transport, which is also often beyond their means, especially if their grants have been cancelled.
Of course it is not only payments from the state social security system which are at issue. A citizen may well have a claim against the police or the Department of Justice, or any other arm of government and have difficulty addressing this within the six-month limit. An impoverished person whose rights have been grossly infringed e.g. in a government hospital may be too incapacitated to meet the necessary deadline. Or may only become aware of his or her right to compensation long after the event or the actual effects of whatever negligence or malpractice has taken place may only become apparent or be fully understood months later.
Welfare organisations which depend on state subsidy could also be disadvantaged by the proposed legislation, given that they are often subject to long delays in payment for tasks which are delegated to them by the state. Lapses and delays in e.g. Retention Order fees for children who are in residential care while awaiting Children's Court proceedings are common, and problems frequently arise with other forms of subsidy as well. These may take many months to sort out and we do not think it conducive to good relations between government and the NGO's if the latter can only gain redress by giving notice of court action within six months as set out in the Bill.
There are many other examples which could be raised. We believe it is precisely those South Africans who are already most vulnerable who stand to be most disadvantaged by the proposed legislation. The provision for a court to condone a failure to give timeous notice [S2(4)] does not suffice, as it is entirely discretionary and also requires that the state not be prejudiced by this failure.
We believe that as the Bill stands it constitutes a serious threat to the rights of citizens. We therefore recommend that section 2(2)(b) be altered by deleting the words "within six months from the date upon which the debt became due."
Your attention to these concerns will be appreciated.
DR SM LOFFELL