REPUBLIC OF SOUTH AFRICA

LIMITATION OF LEGAL PROCEEDINGS AGAINST GOVERNMENT INSTITUTIONS BILL

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(MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT)

[B 65 - 99]

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REPUBLIEK VAN SUID-AFRIKA

WETSONTWERP OP DIE BEPERKING VAN REGSGEDINGE TEEN OWERHEIDSINSTELLINGS

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(MINISTER VIR JUSTISIE EN STAATKUNDIGE ONTWIKKELING)

[W 65 - 99]

limit1

GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicate omissions from the Bill as introduced.

Words underlined with a solid line indicate insertions in the Bill as introduced.

{ } Words in italics in brace brackets indicate a further option within an option.

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B I L L

BE IT ENACTED by the Parliament of the Republic of South Africa, as follows:—

1. In this Act, unless the context indicates otherwise—

(i) "creditor" means a person who intends to institute legal proceedings against a government institution for recovery of a debt arising from delict or who has instituted such proceedings, and includes such person's tutor or curator if such person is a minor or mentally ill or under curatorship, as the case may be; (iii)

(i) "creditor" means a person who intends to institute legal proceedings against a [government institution] {debtor / an organ of state} for recovery of a debt [arising from delict] or who has instituted such proceedings, and includes such person's tutor or curator if such person is a minor or mentally ill or under curatorship, as the case may be;

( ) "debt" means any debt arising from delict {without fault in terms of a statutory provision} or any other unlawful act or omission for which a {debtor / an organ of state} is liable for payment {without fault in terms of a statutory provision}, but does not include a debt arising from a breach of contract;

( ) "debt" means any debt arising from delict {without fault in terms of a statutory provision} or any {illegal / other alleged} act performed, or an alleged failure to do anything which should have been done, under or in terms of any law and for which a {debtor / an organ of state} is liable for payment {without fault in terms of a statutory provision}, but does not include a debt arising from a breach of contract;

( ) "debt" means any debt arising from the negligence, intentional or unlawful act or omission, or delict of whatever nature committed by, or at the behest of, a {debtor / an organ of state}, but does not include a debt arising from a breach of contract committed by, or at the behest of, a {debtor / an organ of state} and for which a {debtor / an organ of state} is liable for payment without fault in terms of a statutory provision;

( ) "debtor" means—

(a) any organ of state which is liable for the payment of a debt;

(b) any functionary {, other than a functionary or institution referred to in paragraph (b) of the definition of "organ of state",} who may be cited as the nominal {defendant / defendant or respondent, as the case may be,} in any legal proceedings against an organ of state in respect of a debt; or

(c) any {officer / person} who acted within the scope of his or her official capacity and for whose {actions / actions or omissions} an organ of state is liable for the payment of a debt;

(ii) "delict" includes an unlawful act for which a defendant is liable for payment of damages without fault in terms of a statutory provision; (i)

(ii) "delict" includes an unlawful act or omission for which a [defendant] {debtor / an organ of state} is liable for payment of damages without fault in terms of a statutory provision;

(iii) "government institution" means—

(a) a municipality contemplated in section 151 of the Constitution;

(b) a traditional authority contemplated in section 211(2) of the Constitution;

(c) the South African Roads Board established by section 2 of the South African Road Board Act, 1988 (Act No. 74 of 1988);

(d) the South African National Parks referred to in section 5(1) of the National Parks Act, 1976 (Act No. 57 of 1976);

(e) the Office of the Auditor-General established by section 3 of the Audit Arrangements Act, 1992 (Act No. 122 of 1992);

(f) any department contemplated in Schedule 1 to the Public Service Act, 1994 (Proclamation No. 103 of 1994), and any organisational component contemplated in Schedule 2 to that Act;

(g) any functionary who may be cited as the nominal defendant in any legal proceedings against a body or institution contemplated in paragraphs (a) to (f); and

(h) any person for whose actions a body or institution contemplated in paragraphs (a) to (f) is liable in respect of a debt arising from delict. (ii)

( ) "organ of state" means—

(a) any department of state or administration in the national, provincial or local sphere of government, including—

(i) any national department, provincial administration, provincial department or organisational component mentioned in the first column of Schedule 1, 2 or 3 to the Public Service Act, 1994 (Proclamation No. 103 of 1994); and

(ii) a municipality contemplated in section 151 of the Constitution;

(b) any other functionary or institution—

(i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation,

(aa) South African Roads Board established by section 2 of the South African Road Board Act, 1988 (Act No. 74 of 1988);

(bb) South African National Parks referred to in section 5(1) of the National Parks Act, 1976 (Act No. 57 of 1976);

(cc) Office of the Auditor-General established by section 3 of the Audit Arrangements Act, 1992 (Act No. 122 of 1992); and

(dd) South African Maritime Safety Authority established by section 2 of the South African Maritime Safety Authority Act, 1998 (Act No. 5 of 1998),

(c) any functionary {, other than a functionary or institution referred to in paragraph (b),} who may be cited as the nominal {defendant / defendant or respondent, as the case may be,} in any legal proceedings against an organ of state contemplated in paragraph (a) or (b) in respect of a debt; and

(d) any {officer / person} for whose {actions / actions or omissions} an organ of state contemplated in paragraph (a) or (b) is liable for the payment of a debt;

( ) "organ of state" means—

(a) any department of state or administration in the national, provincial or local sphere of government, including—

(i) any national department, provincial administration, provincial department or organisational component mentioned in the first column of Schedule 1, 2 or 3 to the Public Service Act, 1994 (Proclamation No. 103 of 1994); and

(ii) a municipality contemplated in section 151 of the Constitution; or

(b) any other functionary or institution—

(i) exercising a power or performing a function in terms of the Constitution or a provincial constitution; or

(ii) exercising a public power or performing a public function in terms of any legislation,

(aa) South African Roads Board established by section 2 of the South African Road Board Act, 1988 (Act No. 74 of 1988);

(bb) South African National Parks referred to in section 5(1) of the National Parks Act, 1976 (Act No. 57 of 1976);

(cc) Office of the Auditor-General established by section 3 of the Audit Arrangements Act, 1992 (Act No. 122 of 1992); and

(dd) South African Maritime Safety Authority established by section 2 of the South African Maritime Safety Authority Act, 1998 (Act No. 5 of 1998),

( ) "officer" means any person in the employ of an organ of state, whether in a full-time or part-time capacity;

2. (1) Subject to this Act, no legal proceedings for the recovery of a debt arising from delict may be instituted against a government institution unless the creditor has given the government institution notice in writing of his or her intention to institute the legal proceedings in question or the government institution has consented in writing to the institution of legal proceedings without such notice.

(1) {(a)} Subject to this Act, no legal proceedings for the recovery of a debt [arising from delict] may be instituted against a [government institution] {debtor / an organ of state} unless the creditor has given the [government institution] {debtor / organ of state} concerned notice in writing of his or her intention to institute the legal proceedings in question or the [government institution] {debtor / organ of state} concerned has consented in writing to the institution of legal proceedings without such notice.

(1) {(a)} Subject to this Act, no legal proceedings for the recovery of a debt [arising from delict] may be instituted against a [government institution] {debtor / an organ of state} unless—

{(a) / (i)} the creditor has given the [government institution] {debtor / organ of state} concerned notice in writing of his or her intention to institute the legal proceedings in question; or

{(b) / (ii)} the [government institution] {debtor / organ of state} concerned has consented in writing to the institution of legal proceedings without such notice.

(b) No legal proceedings contemplated in paragraph (a) may be instituted before the expiry of at least one {calender} month after the notice referred to in paragraph (a), where applicable, has been served on the {debtor / organ of state}.

(b) No legal proceedings contemplated in paragraph (a) may be instituted before the expiry of at least one {calender} month after—

(i) the notice referred to in paragraph {(a) / (a)(i)} has been served on the {debtor / organ of state}; or

(ii) the {debtor / organ of state} has consented in writing to the institution of legal proceedings without such notice,

whichever is applicable.

(2) The notice contemplated in subsection (1) must—

(a) briefly set out the facts relied on for the intended legal proceedings;

(b) be delivered by hand or sent by certified mail to the person who is to be cited as defendant or respondent, as the case may be, within six months from the date upon which the debt became due.

(2) {(a)} The notice contemplated in subsection (1) must—

{(a) / [(a)] (i)} briefly set out the facts relied on for the intended legal proceedings;

{(b) / [(b)] (ii)} be delivered by hand or sent by certified mail, facsimile transmission or electronic mail to the [person who is to be cited as defendant or respondent, as the case may be,] {debtor / organ of state} within six {calender} months from the date upon which the debt became due.

(2) {(a)} The notice contemplated in subsection (1) must—

{(a) / [(a)] (i)} briefly set out [the facts relied on for the intended legal proceedings] —

(aa) the {facts from which the debt arose / cause of action relied on for the intended legal proceedings }; and

(bb) such particulars of such debt as are within the knowledge of the creditor; and

{(b) / [(b)] (ii)} in accordance with paragraph (b) be delivered by hand or sent by certified mail, facsimile transmission or electronic mail to the [person who is to be cited as defendant or respondent, as the case may be,] {debtor / organ of state} within six {calender} months from the date upon which the debt became due.

(b) For purposes of paragraph (a)(ii), the notice must, in the case where the {debtor / organ of state} is—

(i) a national department, provincial administration, provincial department or organisational component—

(aa) mentioned in the first column of Schedule 1, 2 or 3 to the Public Service Act, 1994, be delivered or sent to the officer who is the incumbent of the post bearing the designation mentioned in the second column of the said Schedule 1, 2 or 3 opposite the name of the relevant national department, provincial administration, provincial department or organisational component {or the person who is acting as such}; or

(bb) not so mentioned, be delivered or sent to the Director-General, head, executive director or equivalent officer, respectively, of that national department, provincial administration, provincial department or organisational component, respectively, {or the person who is acting as such};

(ii) a municipality, be delivered or sent to the municipal manager appointed in terms of section 82 of the Local Government: Municipal Structures Act, 1998 (Act No. 117 of 1998), {or the person who is acting as such};

(iii) {a functionary or institution contemplated in paragraph (b) of the definition of "organ of state", or a functionary contemplated in paragraph (b) of the definition of "debtor" / a functionary or institution contemplated in paragraph (b), or a functionary contemplated in paragraph (c), of the definition of "organ of state"}, be delivered or sent to the chairperson, head, chief executive officer, or equivalent officer, of that {functionary / functionary or institution} {or the person who is acting as such}, or where such functionary is a natural person, to that natural person; or

(iv) an officer referred to in {paragraph (c) of the definition of "debtor" / paragraph (d) of the definition of "organ of state"} , be delivered or sent to that officer.

(3) For the purposes of subsection (2)(b)—

(a) a debt may not be regarded as being due until the creditor has knowledge of the identity of the debtor and of the facts from which the debt has arisen, but a creditor must be regarded as having acquired such knowledge as soon as he or she could have acquired it by exercising reasonable care, unless the debtor wilfully prevents him or her from acquiring such knowledge; and

(b) if a creditor institutes legal proceedings after the commencement of this Act in respect of a debt which became due before such commencement, such debt must be regarded as having become due on the date of commencement of this Act.

OPTION

(3) For the purposes of subsection {(2)(b) / (2)[(b)] (a)(ii)}—

(a) a debt may not be regarded as being due until the creditor has knowledge of the identity of the {debtor / [debtor] organ of state} and of the facts from which the debt has arisen, but a creditor must be regarded as having acquired such knowledge as soon as he or she could have acquired it by exercising reasonable care, unless the {debtor / [debtor] organ of state} wilfully prevents him or her from acquiring such knowledge; and

(b) if a creditor institutes legal proceedings after the commencement of this Act in respect of a debt which became due before such commencement, such debt must be regarded as having become due on the date of commencement of this Act.

(4) If a government institution relies on a creditor's failure to give notice in terms of subsection (2), a court having jurisdiction may condone the failure on application by the creditor if the court is satisfied that—

(a) good cause exists for the failure by the creditor; or

(b) the government institution was not unreasonably prejudiced by the failure.

(4) If a [government institution] {debtor / an organ of state} relies on a creditor's failure to give notice in terms of subsection (2), a court having jurisdiction may condone the failure on application by the creditor if the court is satisfied that—

(a) {good cause exists for the failure by the creditor / [good cause exists for the failure by the creditor] it is in the interest of justice}; or

(b) the [government institution] {debtor / organ of state} was not unreasonably prejudiced by the failure.

(5) The court may, subject to any law relating to the extinction of debts by prescription, grant leave to institute the legal proceedings subject to any conditions regarding notice to the government institution which the court may lay down.

Substitute subsection (5) with the following:

(5) The court may, subject to any law relating to the extinction of debts by prescription, grant leave to institute the legal proceedings subject to any conditions regarding notice to the [government institution] {debtor / organ of state} which the court may lay down.

(6) The court may not have regard to non-compliance with subsection (2) unless such non-compliance is raised by a government institution.

(6) The court may not have regard to non-compliance with subsection (2) unless such non-compliance is raised by a [government institution] {debtor / an organ of state}.

3. Section 2 does not derogate from the provisions of section 344 of the Merchant Shipping Act, 1951 (Act No. 57 of 1951), section 2(6)(b) of the Apportionment of Damages Act, 1956 (Act No. 34 of 1956), or the Prescription Act, 1969 (Act No. 68 of 1969).

3. Save and except as stated in section 2, no provision in any existing law that derogates from the provisions of section 344 of the Merchant Shipping Act, 1951 (Act No. 57 of 1951), section 2(6)(b) of the Apportionment of Damages Act, 1956 (Act No. 34 of 1956), or the Prescription Act, 1969 (Act No. 68 of 1969), and no requirement that any notice must be served on any {debtor / organ of state} before the institution of any legal proceedings for the recovery of any debt arising from any cause of action whatsoever, shall be of any legal force and effect.

4. (1) Subject to subsection (2), the laws referred to in the Schedule are hereby amended or repealed to the extent set out in the third column of the Schedule.

(2) With regard to any legal proceedings instituted before the commencement of this Act and which were not before such commencement finally determined by a judgment or by a settlement duly concluded, the amendment or repeal of a law in terms of subsection (1) must be regarded as having taken effect immediately before the cause of action arose.

5. In the event of a conflict between section 2 of this Act and any other law in force immediately before the commencement of this Act, other than the Constitution, section 2 of this Act prevails.

5. Subject to section 3, section 2 of this Act prevails in the event of a conflict between section 2 of this Act and any other law in force immediately before the commencement of this Act, other than the Constitution.

6. This is the Limitation of Legal Proceedings against Government Institutions Act, 2000, which comes into operation on a date fixed by the President by proclamation in the Gazette.

6. This is the [Limitation] Institution of Legal Proceedings against [Government Institutions] Organs of State Act, 2000, which comes into operation on a date fixed by the President by proclamation in the Gazette.

6. This is the [Limitation of] Legal Proceedings against [Government Institutions] Organs of State Act, 2000, which comes into operation on a date fixed by the President by proclamation in the Gazette.