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JUSTICE AND CONSTITUTIONAL DEVELOPMENT PORTFOLIO COMMITTEE
19 September 2000
INSTITUTION OF LEGAL PROCEEDINGS AGAINST ORGANS OF STATE BILL: CONSIDERATION
Document handed out:
Working Document: Draft 7: Institution of Legal Proceedings Against Organs of State Bill [B65-99]
Chairperson: Mr JH De Lange
The Committee agreed that while they have the basic principles right, the Bill required clarified in certain areas in order for voting could take place. The Department was instructed to finalise the proposed amendments and to clean up the Bill. The Department was also instructed to request Correctional Services to pass a proclamation bringing into operation the provisions of the 1998 Act repealing Section 90 of the Correctional Services Act.
Clause 1 Definitions
- Subclause (1)(i) "creditor"
The Chairperson asked if if the drafter, Mr Labuschagne, had looked at the definition of creditor to see if it is sufficient.
Mr Labuschagne said the definition in most cases where it is used in the Bill refers to instances where legal proceedings have not yet been instituted. It is only in the case of condonation where legal proceedings have already been instituted where this definition might give problems.
The Chairperson said since in that instance it only refers to notice, it sounds right.
- Subclause (ii) was agreed to.
- Subclause (iii) "debt"
The Chairperson said there was a proposal that unjustified enrichment be included in the definition of debt. He said there is no reason why, if contracts are excluded, unjustified enrichment should not be excluded as well.
- Subclause (iv) "fixed date"
The Chairperson noted that Mr Labuschagne had introduced something new in the clause; instead of referring to the date of commencement of the Act over and over again, he simple refers to "fixed date". The Committee was happy with the change.
- Subclause (v)(a)
The Committee decided that "excludes" is the right formulation in the subclause.
- Subclauses (vi) and (vii) were agreed to.
- Subclause(viii)(c) it was proposed that the it should read a provincial constitution "referred to in section 142 of the Constitution" so that it would not be necessary to repeat this in subclause (ix).
Clause 1(2) was agreed to.
Clause 2 Amendment or repeal of laws, prescription of debts and transitional arrangements
Subclause (1) was agreed to.
Members felt that the words "in relation to" should be excluded from the subclause.
The Chairperson suggested that this subclause should read "any legal proceedings which had been (or "were") instituted in respect of a debt before the fixed date must be continued and concluded as if this Act had not been passed.
Mr Labuschagne suggested that the clause could end after the words "fixed date".
Ms Jana (ANC) said the word order in subclause (2)(b) does not sound right, it has to be changed to read "any debt in respect of which legal proceedings have been instituted before the fixed date…"
The Chairperson said that alternatively the change should be effected before subclause (a) so that the sentence starting in subclause (2) reads "This Act does not apply to any debt –". In (2)(a) "any debt" would then be excluded and the drafters would look at the correct formulation subclause (2)(b).
It was felt that "have not been" should be excluded and "were not"be inserted in its place and that after "instituted" the words "before that date" be inserted.
The Chairperson asked why the drafters were removing "section 16" from the clause.
Mr Labuschagne said section 16 of the Prescription Act, 1969 does not provide for specific periods of prescription. As it is drafted now it means one would have to read the whole of the Prescription Act including section 16.
The Chairperson said this is technically correct, however, if one interprets "Prescription Act" in the provision narrowly they might say that it excludes any prescription period in other Acts.
The Chairperson said the clause should be drafted to read "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 (insert the relevant chapter or sections of) the Prescription Act, 1969."
The Chairperson said it is important that a coherent flow be maintained between subclauses (2), (3) and (4). He said the Committee has the principle of the Bill right and by the next day the drafters would have fixed the little problems in the Bill so that voting can take place.
Clause 3 Notice of intended legal proceedings to be given to organ of state
Mr Labuschagne said the reason for the deletion of "Subject to this Act" and the insertion of "Save where otherwise provided by an Act of Parliament" is that the Bill does not include the Occupational Diseases Act and the Road Accident Fund Act. These Acts provide their own procedure relating to giving notice and prescription.
The Chairperson said this provision is not necessary because the Compensation Commissioner and the Road Accident Fund are excluded from the definition of organ of state.
Subclause (2) and (3) were agreed to.
The Chairperson noted that the drafters opted for the use of the words "serve a" instead of "give".
Mr De Lange of the Department said he is not happy about the use of "a court having jurisdiction". He said this might be problematic where one wants to challenge the jurisdiction of the court. The provision should instead say "a court in question".
The Chairperson agreed that "unreasonably" should be reinserted in the clause.
Clause 4 Service of notice
Ms Jana proposed that after the words "sent or transmitted the notice" in subclause (2)(b) the words "which must" should be left out. Then (2)(b)(i) would start with "indicating", (2)(b)(ii) would start with "setting out", (2)(b)(iii) would start with "indicating", and (2)(b)(iv) would begin with "containing".
The Chairperson said that subclause (2)(b)(iv) should be (ii) so that there is a logical flow in the provision.
Clause 5 Service of process
The Chairperson said the drafters should look at the Interpretation Act to see what the definition of a calendar month is so that a decision can be taken on whether to say "one month", "one calendar month", or "30 days".
Clause 6 Short title
The Chairperson said the Act should come into operation once signed by the President. The President can withhold assent if he deems it necessary and the requirement of a date for publishing in a proclamation should be left out of the clause.
Mr Labuschagne said regarding the intended repeal of Section 90 of the Correctional Services Act, this section has already been repealed by an 1998 Act but is still in operation because the provision repealing it has not yet come into operation.
Members were concerned that Parliament cannot repeal a law that it has already repealed instead the Department of Correctional Services might be required to pass a proclamation bringing into operation the repealing provision.
The Chairperson instructed the drafters to talk to the Department of Correctional Services regarding the repeal of section 90 of the Correctional Services Act, 1959. He said the Department should be required to issue a proclamation bringing into operation the provision of the 1998 Act repealing section 90 of the Correctional Services Act, 1959. The Department would need to do this speedily failing which the Committee would repeal the section itself in this Bill.
The Chairperson instructed Mr Labuschagne to tidy up the Bill and to finalise the proposed amendments so that the Committee would look at them the next day and then vote on the Bill. The meeting was adjourned.