1. Broekmanns: Attorneys, Notaries and Conveyancers LIM 1

2. M Sarakis LIM 2

3. South African Maritime Safety Authority LIM 3

4. State Attorney: Johannesburg LIM 4

5. McWilliams & Elliot: Attorneys, Notaries and Conveyancers LIM 5

6. South African Police Service LIM 6

7. Ladybrand Municipality LIM 7

8. Cape Bar Council LIM 8

9. Law Society of South Africa LIM 9

10. Johannesburg Child Welfare Society LIM 10

GENERAL COMMENT

It seems to be fundamentally unfair that the State, in regard to claims for damages, should arrogate to itself procedural and tactical advantages which it denies to its potential opponents. It is contrary to all tenets of natural justice and equity.

The Bill has omitted the provision contained in various Acts which provides that a period of time should lapse after notice has been given and before legal proceedings are instituted. Government institutions should be given an opportunity to investigate claims and make a decision before becoming involved in litigation. His interpretation is that a waiting period would be constitutional.

It is proposed that the recipient of a claim should be given a specific period within which to investigate the claim before a summons may be issued and served. (See section 2(1)(b) of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act, 1970)

The Council has taken note of the contents of the Bill and has no comment to offer.

The General Council of the Bar supports the Bill.

In order to create clarity, it is suggested that the words "or omission" be inserted after the word "act", should it be the intention of the Legislature.

It is a substantial extension of protection to include not merely the government institutions themselves, but also any person for whose actions such an institution might be vicariously liable as contemplated in paragraph (h). The effect thereof is that instead of the usual prescriptive period of three years against an individual, a person who argues that he or she was acting within the scope of his or her employment with a government institution, can escape personal liability as well on a similar procedural basis. There can surely be no warrant for this.

(i) The omission of SAMSA from the list of institutions included under the definition of "government institution" is unacceptable, bearing in mind that the Legislator, as recently as 1998, extended the benefit of section 343 of the Merchant Shippng Act, 1951, to SAMSA. It might be that the expression "government institution" is too narrowly defined as it fails to include entities, such as SAMSA, which have been established to function as executive agencies of Government and which are "organs of state" within the meaning of section 239 of the Constitution. It is therefore proposed that the definition of "government institution" be amended to include organs of state such as SAMSA.

(ii) The reference in paragraph (f) to "Schedule 1" (in line 20) should be to "Schedules 1 and 2" and the reference to "Schedule 2" (in line 22) should be to "Schedule 3".

(i) In the light of the contemplated repeal of the Limitation of Legal Proceedings (Provincial and Local Authorities) Act, 1970, the omission of "a province" from the list of government institutions appears to be an oversight.

(ii) Paragraph (g) refers to "nominal defendant" only, whilst clause 2(2)(b) requires that a notice must be delivered or sent to the person who is to be cited as "defendant or respondent". It is proposed that the words "or respondent, as the case may be," be inserted after the word "defendant" in paragraph (g).

(iii) It is suggested that the words "or omission" be inserted after the word "actions" in paragraph (h).

1. AD SUBCLAUSE (1)

Because a government institution may consent in writing to the institution of legal proceedings without the required notice, it is assumed that a creditor must have directed a request in that regard to the government institution. However, the clause contains no provisions in respect of such a request. It is suggested that it should at least be a requirement that such requests must be in writing and must be directed to the person referred to in clause 2(2)(b). Hence it is proposed that subclause (1) be amended as follows:

"(1) .....or the government institution, after receipt of a written request directed to the person referred to in section 2(2)(b), has consented in writing to the institution of legal proceedings without such notice."

Clause 2(1) does not address contractual liability of government institutions which should also be covered by the Act. It is suggested that subclause (1) be amended as follows:

"(1) Subject to this Act, no legal proceedings [for the recovery of a debt arising from delict] 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 [creditor] claimant has given the government institution notice.....".

Should the above proposal be supported, the rest of the Bill will have to be amended to provide for the other causes of action.

There is no creditable independent evidence upon which the need for notice within six months is or can be justified and there is no good reason not to allow the normal prescriptive period of three years to apply to claims against the State. See also proposal under "Schedule".

The practice has developed to send notices by facsimile and to accept such notices if all the other requirements are complied with.

It is proposed that—

(i) subclause (2)(a) be amended to provide that the cause of action relied on must also be stated;

(ii) the reference to "six months" in subclause (2)(b) be substituted with a reference to "six calender months"; and

(iii) subclause (2) be amended to provide where a notice must be served (see section 57(3) and (4) of the South African Police Service Act, 1995).

It is suggested that subclause (2)(b) be amended so as to provide for notification through fax or e-mail where these facilities are available.

It is recommended that subclause (2)(b) be amended by the deletion of the words "within six months from the date upon which the debt became due".

In order to (i) overcome the difficulty that a creditor may have in proving intention on the part of the debtor (which the present wording would require in the context of litigation) and (ii) to avoid a delay beyond six months because of tardiness and bureaucratic red tape on the part of the government institution, it is suggested that subclause (3)(a) be amended as follows:

".....unless the debtor [wilfully] culpably prevents him or her from acquiring such knowledge;".

4. AD SUBCLAUSE (4)

The argument that a court can condone a creditor's failure to give notice is a hollow and cynical one. The costs of bringing an application to court for condonation will be prohibitively expensive.

It is proposed that subclause (4)(a) be amended as follows:

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

It is proposed that the Bill be amended—

(i) to repeal all the sections in the Schedule imposing special prescriptive requirements and privileges in favour of government institutions; and

(ii) to provide that in all such instances the Prescription Act, 1969, will apply in regard to the State in the same way as it applies to non-State institutions and individuals.

SAMSA has no objection to the repeal of section 344(4) of the Merchant Shipping Act, 1951.

It is suggested that the repeal of section 90 of the Correctional Services Act, 1959, be included in the Schedule.

It is suggested that section 57(3) and (4) of the South African Police Service Act, 1995, be retained in relation to the SAPS.