Institution of Legal Proceedings Against Organs of State Bill: discussion & voting

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Justice and Correctional Services

19 September 2000
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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
20 September 2000
INSTITUTION OF LEGAL PROCEEDINGS AGAINST ORGANS OF STATE BILL [B 65B – 99]: CONSIDERATION & VOTING

Documents handed out:
Working Document: Draft 8: Institution of Legal Proceedings against Organs of State Bill
Position of Acts passed by the Committee since 1994 as at 1 September 2000.
Draft Memorandum on Objects of the Institution of Legal Proceedings against Organs of State Bill [see Appendix 1]
Draft 2: Resolution on the Institution of Legal Proceedings Against Organs of State Bill [see Appendix 2]

Chairperson: Mr JH De Lange

SUMMARY
The amendments proposed in the previous meeting were agreed to with minor adjustments to some. The Bill was passed unanimously.

MINUTES
Consideration of Bill
Long title
The Chairperson proposed that the words "to repeal or amend certain Acts," be included.

The enactment clause was agreed to.

Clause 1 Definitions
The Chairperson said the Committee would pass the clause. Mr Labuschagne would talk to the State Law Advisor and if substantial change needs to be made in this clause, it could always be done in the NCOP.

Clause 2 Amendment or repeal of laws, prescription of debts and transitional arrangements
The Chairperson said the heading to this section should be changed to read "Prescription of debts, amendment or repeal of laws and transitional arrangements". This was agreed to.

Subclause (2)(b)
The Chairperson said the words "any such legal proceedings must be continued and concluded as if this Act had not been passed" should be included here to make it certain. This was agreed to.

Subclause (3)(b)
The Chairperson said that instead of referring to section 6 the drafters have now opted to say "Chapter III" which deals with periods of prescription.

Subclause (4)(b)
The Chairperson said the reference to subsection (3)(a) in this subclause should in fact refer to subsection (4)(a).

Clause 3 was agreed to.

Clause 4 was agreed to.

Clause 5 Service of process
Subclause (2)
It was agreed that this should refer to a period of 30 days to give certainty on how the length of the period should be counted.

Subclause (4)
It was agreed that this subclause would be excluded because the Interpretation Act defines how to calculate when days are given in an Act.

Clause 6 was agreed to.

It was agreed to remove the reference to "calendar month" in the Bill and instead refer to "month" so that there would be no confusion as to interpretation.

Schedule
Mr De Lange of the Department said he got assurance from the Department of Correctional Services that a proclamation would be passed putting into operation the provisions of the Act repealing section 90 of the Correctional Services Act.

The Chairperson said Mr De Lange should inform the Department that this has to be done speedily. If it has not happened by the time the Bill goes before the NCOP, section 90 would be repealed by this Bill.

Voting on Bill
The Chairperson put the motion of desirability before the Committee and it was agreed to. All the clauses of the Bill with amendments were agreed to and the whole Bill was passed unanimously. The Report of the Committee was agreed to.

Resolution of the Committee
The Committee effected the following changes to the draft resolution and then adopted it:

The Chairperson said in paragraph 1 after the words "envisaged by the Bill" it should be inserted "the new notice period in the Bill is subject to condonation by the court".

The Chairperson said in paragraph 1 after "providing for different prescription periods" it should be added "section 2 of the Act provides for certain limited harmonisation of Acts dealing with prescription of debts, certain transitional arrangements have been provided to ensure a smooth transition from the previous legislation".

The Chairperson said in the next sentence the words "to consider possibility of" should be removed and it should be rephrased to read "to include an investigation" after the words "request the Chairperson of the South African Law Commission".

It was decided that reference to "insufficient time" or "lack of time" was not accurate considering that this is a 1999 Bill and these phrases should be replaced with "insufficient information" and "lack of information" respectively.

The Chairperson said in paragraph 6, regarding the Black Administration Act, 1927, it should be added that this Act was a cornerstone and reflects much of what was wrong with the previous dispensation and that in six years this Act has not yet been dealt with by the Departments responsible for its administration.

Also in paragraph 6 after the words "each National or" it should be inserted "and where applicable".

The Chairperson said after the reference to National Department in the paragraph it should be added "especially the Department of Justice, Home Affairs, and Land Affairs".

Mr Jeffery (ANC) said instead of referring to certain Departments which might exclude others reference should rather be made to the executive to say it should review the Act and ensure repeal of the provisions.

The Chairperson said in the same paragraph after the sentence ending with "Constitution." it should be inserted "This matter must also be brought to the attention of the Presidency".

The meeting was adjourned.

Appendix 1:

hh050900 LIM 35
DRAFT 1

MEMORANDUM ON THE OBJECTS OF THE INSTITUTION OF
LEGAL PROCEEDINGS AGAINST ORGANS OF STATE BILL, 2000


1. BACKGROUND
The Limitation of Legal Proceedings against Government Institutions Bill, 2000, as originally introduced into Parliament, emanated from the South African Law Commission's supplementary report on the investigation into time limits for the institution of legal proceedings against the State (Project 42). The Portfolio Committee on Justice and Constitutional Development (National Assembly), after having considered the above-mentioned Bill and the submissions which it received in respect of that Bill, submitted the Institution of Legal Proceedings against Organs of State Bill, 2000.

2. OBJECTS OF THE BILL
2.1 The principal object of the Bill is to create uniform provisions regulating the institution of legal proceedings against organs of state for the recovery of debts.

2.2 Clause 1 contains a list of definitions. The concept of "organ of state" which is widely defined, is at the core of the Bill and includes all national and provincial departments, municipalities, functionaries or institutions exercising a power or performing a function in terms of the Constitution or a provincial constitution and any person for whose debt such an organ of state is liable. Another important feature of clause 1 is the wide definition of "debt", which includes debts arising from any unlawful acts or omissions for which organs of state are liable for payment of damages (including any delict or liability without fault in terms of a statutory provision), but does not include debts arising from a breach of contract.

2.3.1 Clause 2 provides for the amendment or repeal of certain provisions, the prescription of certain debts and transitional arrangements. In order to create uniformity, various provisions which regulate the institution of legal proceedings against organs of state, by prescribing specified periods within which claims are to be made or actions are to be instituted in respect of debts and the prescription of such debts, are amended or repealed. The effect of such amendments or repeal is, among others, that as from the date of commencement of the Bill (hereinafter referred to as the "fixed date"), the running of prescription of a debt which became due before the fixed date and in respect of which legal proceedings were not instituted at that date (hereinafter referred to as an "old debt"), is interrupted. Clause 2 therefore provides that the Prescription Act, 1969 (Act No. 68 of 1969), will, as from the fixed date, be applicable in respect of the prescription of any old debt or any debt which became due after that date.

2.3.2 In respect of old debts of which the running of prescription has been interrupted on the fixed date, a "new" prescription period commences to run in terms of the Prescription Act, 1969. However, the expired portion of the period of prescription of an old debt must be deducted from the new period of prescription which commences to run on the fixed date.

2.3.3 In order to enable a creditor, in the case of an old debt, to comply with the notice requirements provided for in the Bill, provision is made that where the unexpired portion of the period of prescription of such a debt 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.

2.4 Clause 3 imposes a duty on a creditor to give an organ of state written notice of his or her or its intention to institute legal proceedings for the recovery of a debt against that organ of state, unless the organ of state in question consents in writing to the institution of legal proceedings without such notice. Provision is further made that such a notice must be served on the organ of state within six calender months after the debt became due and for the information to be contained therein. Clause 3 further provides that a creditor may apply to the court for condonation of his or her or its failure to give notice, and that the court may grant such an application if it is satisfied that the debt in question has not been extinguished by prescription, that good cause exists for the failure by the creditor and that the organ of state was not unreasonably prejudiced by the failure.

2.5 Clause 4 regulates the manner in which, and the persons on whom, notices must be served. Provision is made that notices may be served by delivering it by hand or by sending it by certified or electronic mail or by transmitting it by facsimile. Clause 4 further sets out certain requirements to be complied with by a creditor if a notice has been sent by electronic mail or transmitted by facsimile.

2.6 In terms of clause 5 any process by which legal proceedings are instituted in terms of this Bill, must be served in the manner prescribed in the rules of court. However, certain exceptions are made in respect of, among others, the Minister for Safety and Security and the Minister of Correctional Services.

Appendix 2:

hh020900a LIM 33
DRAFT RESOLUTION: DRAFT 2

Report of the Portfolio Committee on Justice and Constitutional Development on the Limitation of Legal Proceedings against Government Institutions Bill [B65—99] (National Assembly—section 75), dated ... September 2000, as follows:

The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Limitation of Legal Proceedings against Government Institutions Bill [B65—99] (National Assembly—section 75), referred to it, submits the Institution of Legal Proceedings against Organs of State Bill [B65B—99] (National Assembly—section 75).
The Portfolio Committee wishes to report further, as follows:

1. During its deliberations on the Bill, the Committee's attention was drawn to the fact that certain provisions of existing laws provide for different—
(a) notice periods for the institution of legal proceedings; and
(b) prescription periods,
in respect of certain debts arising from delictual or contractual liability. The Committee expressed the view that some of those provisions could possibly be unconstitutional.

In order to create uniformity, the Committee deemed it appropriate to repeal existing provisions providing for different notice periods, whether they are possibly unconstitutional or not, and to substitute them with a uniform notice period which will apply in respect of the institution of all legal proceedings against organs of state, as defined in the Bill, arising out of a debt. The Committee, however, further deemed it appropriate to retain certain existing provisions which, for specific reasons, provide for notice periods that differ from the uniform period envisaged by the Bill. By defining debt as "any debt arising from any unlawful act or omission for which an organ of state is 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", the Bill will not apply in respect of debts arising from contractual liability.

In order to create further uniformity, the Committee deemed it appropriate to repeal certain existing provisions, whether they are possibly unconstitutional or not, which provide for specific prescription periods in respect of certain debts arising from delictual or contract liability. The Committee, however, further deemed it appropriate to retain certain existing provisions which, for specific reasons, provide for prescription periods that differ from the period provided for by the Prescription Act, 1969 (Act No. 68 of 1969). The effect of the repeal of the above-mentioned provisions is that the prescription of all debts arising from delictual or contractual liability will, after the commencement of this Bill and unless otherwise provided for by an existing provision, be regulated by the Prescription Act, 1969.

Due to the fact that no comprehensive review of the provisions providing for different prescription periods has been done and due to a lack of time, the Committee was not in a position to deal with the harmonization of such different prescription periods on the strength of comprehensive research. Furthermore, because the main object of the Bill is to harmonize, and create uniformity in respect of, the provisions of existing laws providing for different notice periods, the Committee is of the view that the Bill is not the appropriate mechanism to deal with the harmonization of provisions providing for different prescription periods. The Committee therefore recommends that the Minister for Justice and Constitutional Development be requested to request the Chairperson of the South African Law Commission to consider the possibility of including an investigation into the harmonization of the provisions of existing laws providing for different prescription periods in the Law Commission's programme.

2. The Bill, as introduced into Parliament, provides for the repeal of section 44 of the Compensation for Occupational Injuries and Diseases Act, 1993 (Act No. 130 of 1993), which provides that "a right to benefits in terms of this Act shall lapse if the accident in question is not brought to the attention of the commissioner or of the employer or mutual association concerned, as the case may be, within 12 months after the date of such accident". Although the Committee considered the repeal or amendment of the said section 44, it expressed the view that it had insufficient time to consider the repeal or amendment of that section properly and any possible consequential amendments to the said Act which might emanate from such repeal or amendment. In the light thereof the Committee recommends that the Department of Labour be requested—

(a) to investigate the repeal or amendment of section 44 with the view to bringing the provisions thereof into line with the provisions of the Bill and to identifying possible consequential amendments to the above-mentioned Act emanating from such repeal or amendment; and
(b) where necessary, to submit draft amendments regarding the matter in question to Parliament for its consideration.

3. The Committee's attention was also drawn to section 23 of the Road Accident Fund Act, 1996 (Act No. 56 of 1996), which provides for the prescription of the right to claim compensation from, among others, the Road Accident Fund, established under section 2(1) of that Act, in respect of "loss or damage arising from the driving of a motor vehicle in the case where the identity of either the driver or the owner thereof has been established". The Committee considered the possibility of repealing the said section 23 and including the Road Accident Fund in the definition of "organ of state" so as to make the provisions of the Bill applicable to that Fund. The Committee is aware of the Road Accident Fund Commission which has been established to "inquire into and to make recommendations regarding a reasonable, equitable, affordable and sustainable system for the payment by the Road Accident Fund of compensation or benefits, or a combination of compensation and benefits, in the event of the injury or death of persons in road accidents in the Republic". It has been brought to the Committee's attention that the Road Accident Fund Commission is required to submit its Report to the President during the course of 2001. In the light of the above the Committee decided against the repeal of the above-mentioned section 23 and the inclusion of the Road Accident Fund in the definition of "organ of state". The Committee recommends that the Department of Transport be requested—
(a) to consider and evaluate any recommendations regarding the matter in question as contained in the Report by the Road Accident Fund Commission; and
(b) where necessary, to submit legislative proposals regarding the matter in question to Parliament for its consideration.

4. The Committee's attention was also drawn to the fact that the Legal Succession to the South African Transport Services Act, 1989 (Act No. 9 of 1989), contains certain provisions providing for specific notice periods in respect of claims for compensation for livestock killed or injured by a train or for property destroyed or damaged by a fire caused by a burning object coming from a locomotive or train. Due to a lack of time, the Committee was not in a position to consider the repeal or amendment of those provisions properly for purposes of uniformity. The Committee therefore recommends that the Department of Transport be requested—
(a) to investigate the repeal or amendment of the above-mentioned provisions with the view to bringing them into line with the provisions of the Bill; and
(b) where necessary, to submit legislative proposals regarding the matter in question to Parliament for its consideration.

5. The Committee's attention was drawn to section 59 of the South African National Roads Agency Limited and National Roads Act, 1998 (Act No. 7 of 1998), which provides for notice periods for the institution of legal proceedings against, among others, the South African National Roads Agency Limited (the Agency) or an employee of the Agency for any damage or loss allegedly suffered by a person as a result of any act with regard to a national road which allegedly was performed or omitted by, among others, the Chief Executive Officer or any of the other employees of the Agency acting in the performance of their duties. Although the Bill, as introduced into Parliament, did not provide for the amendment or repeal of the said section 59, the Committee deemed it appropriate to include an amendment of that section in the Bill so as to make the uniform notice period envisaged by the Bill applicable to legal proceedings emanating from the provisions of the above-mentioned Act as well. The Committee also noted that section 59(3) of the above-mentioned Act provides that "[n]either the Agency nor ..... 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." Although the Committee effected consequential amendments to section 59(3), as a result of the repeal of section 59(1) and (2) of the above-mentioned Act, the Committee does not express any views on the constitutionality of the said section.

6. The Committee expresses its concern that it has to amend the Black Administration Act, 1927 (Act No. 38 of 1927), on a piecemeal basis. It was brought to the Committee's attention that on 5 September 2000 the High Court of Pretoria in the case of D E Moseneke and Others v The Master of the High Court (Case No. 20006/2000) declared the provisions of clause 3(1) of the Regulations promulgated in terms of the above-mentioned Act to be invalid, unconstitutional and of no force and effect. In the light of the above, the Committee recommends that each National or Provincial Department, which is responsible for the administration of specific sections of the above-mentioned Act, be requested to review the sections which it administers with the view to bringing those sections in line with the Constitution. The Committee further requests that each of the Departments concerned must submit a report to the Committee on its progress in the above regard within three months after the adoption of this report.

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