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3.1 The Commission has reconsidered the legislation recommended in its previous report. In the light of legislative changes since 1985 and the decision of the Constitutional Court in the Mohlomi case, referred to above, the Commission recommends the draft legislation contained in the Annexure to this report.
3.2 Several of the provisions referred to in the previous draft legislation have been amended or repealed with or without the substitution of similar provisions. The draft legislation has been adapted to take account of these changes. Section 108 of the Education Affairs Act (House of Assembly)[13] and section 52 of the Audit Arrangements Act[14] contain provisions similar to those dealt with in the previous draft. These sections have also been dealt with in the draft legislation contained in the Annexure.
3.3 The Constitutional Court compared section 113(1) of the Defence Act with section 57 of the South African Police Service Act,[15] but did not rule on the constitutionality of section 57.[16] Some guidelines on the constitutionality of the provisions in the draft legislation can nevertheless be gleaned from the decision of the Constitutional Court.
3.4 It is submitted that the provisions recommended in the Annexure comply with the guidelines for constitutionality discussed in the Mohlomi case.
3.5 The conventional explanation for demanding prior notification of any intention to sue an organ of government is that, with its extensive activities and large staff which tends to shift, it needs the opportunity to investigate claims laid against it, to consider them responsibly and to decide, before getting embroiled in litigation at public expense, whether it ought to accept, reject or endeavour to settle them. Given its obviously useful and apparently legitimate purpose, Didcott, J, would have felt disinclined to rate this condition precedent as one intrinsically repugnant to section 22 of the interim Constitution had it stood alone or been accompanied by a lot more latitude than section 113(1) allowed in the time fixed for the start of the ensuing action and consequently for compliance with it a month earlier.[17] Contrary to the wishes of several commentators, the previous draft recommended by the Commission did not provide for a lapse of time between the notice in writing of the intention to institute legal proceedings and the issue of summons. The previous report gave the following reasons for the omission of such a requirement:[18]
It appears that a statutory requirement that a period of notice be given before summons is issued will not have much effect in practice. A summons would certainly prompt a defendant to investigate the matter as soon as possible and to consider it thoroughly. There can be no objection to this. There is enough time available after summons to consider a matter and settle it if advisable. The costs of summons are not considerable. In practice a plaintiff will in his own interests allow a reasonable time between notice and summons, especially as a period of more that two years will usually be available after notice before the claim becomes prescribed. The Commission does not recommend that a period between notice and summons be required by statute.
The draft legislation in the Annexure does not provide for a period between notice and summons.
3.6 Rules that limit the time during which litigation may be launched are common in our legal system as well as many others. Inordinate delays in litigating damage the interests of justice. Rules that prevent procrastination and the harmful consequences of it, serve a purpose to which no exception in principle can cogently be taken. The right is denied altogether whenever an action gets barred, but the prospect of such an outcome is inherent in every case, no matter how generous or meagre the allowance may have been. What counts rather is the sufficiency or insufficiency, the adequacy or inadequacy, of the room which the limitation leaves open in the beginning for the exercise of the right.[19] Section 57 of the South African Police Service Act provides for notice within 12 calender months. Clause 2(2)(b) of the draft legislation recommended in the Annexure provides for notice within six months.
3.7 One of the grounds which delays the commencement of the running of prescription is the creditor’s lack of knowledge of the identity of the debtor and the facts from which the debt arises.[20] From a general equitable point of view, it seems unfortunate that this provision of the Prescription Act, at least, does not apply to expiry periods.[21] Clause 2(3) of the draft legislation in the Annexure provides that the period shall not commence to run before the plaintiff has certain knowledge or could have had such knowledge by exercising reasonable care (similar to section 12 of the Prescription Act). If the plaintiff is a minor, insane or under curatorship, the period does not commence to run before his or her tutor or curator has the necessary knowledge or could have had the knowledge.
3.8 Section 57(5) of the South African Police Service Act provides that a court may dispense with the requirements or prohibitions contained in subsections (1) and (2) where the interests of justice so require. This provision permits account to be taken of the claimant’s fault or the lack of that and the prejudice suffered by the state or its absence. While paying due attention to the state’s interests, section 57 is consequently much less stringent and detrimental to the interests of claimants than section 113(1) of the Defence Act.[22] Clause 2(4) of the draft legislation in the Annexure grants the court the power to condone failure to give notice in terms of the legislation if the court is satisfied that good cause exists for the failure by the creditor, tutor or curator to give the notice; or the defendant was not unreasonably prejudiced by the failure. 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 defendant which the court may lay down.
3.9 According to the legislation recommended in the Commission's 1985 report the proposed legislation would not apply to debts dealt with in legislation listed in clause 5 of that legislation. All the listed legislation has since been replaced by comparable legislation. The exceptions deal with a debt in respect of which the provisions of section 36 of the Compensation for Occupational Injuries and Diseases Act[23] apply or a debt in terms of the Road Accident Fund Act[24] or in terms of items 1 and 2 of Schedule 1 to the Legal Succession to the South African Transport Services Act.[25] The 1985 report contains the following reasons for the exceptions:
3.9.1 Items 1 and 2 of Schedule 1 to the Legal Succession to the South African Transport Services Act, 1989, (Act No. 9 of 1989) deal with claims in respect of livestock killed or injured by a train or fire damage caused by burning objects emanating from a train. Both items require notice within three days. It is not necessary to prove negligence before liability for these claims arises. Liability differs from ordinary delictual liability in other respects as well. The possibility does exist that the usual delictual liability has been preserved.
3.9.2 A specific practice has already come into being regarding debts in respect of which the provisions of section 36 of the Compensation for Occupational Injuries and Diseases Act 130 of 1993 or the Road Accident Fund Act 56 of 1996 apply. These provisions were not enacted for the protection of government institutions.
It was recommended in the 1985 report that the provisions of these Acts cover all cases, also if a government institution or his employee was the defendant.
3.10 During December 1997 the Department of Transport, the Compensation Commissioner and Spoornet were supplied with a background document and requested for their opinions whether an exception was justified in respect of the legislation in respect of which they have an interest and, if so, the reasons that justify such an exception.
3.11 Spoornet replied as follows on 16 January 1998:
Since becoming a public company in terms of the Companies Act, Transnet Ltd has striven to level the playing field in the transportation market. This has meant that from a legal perspective Transnet Ltd has not without due reason been entitled to additional requirements over and above that pertaining to its competitors.
(An exception for Spoornet) can be supported on the basis of addressing the particular requirements of the relationship between a railway operator and its neighbours, irrespective of whether the railway operator is State owned or not.
Spoornet consequently supports (such an exception) and would be prepared to discuss any further amendments required to bring statutory requirements in line with constitutional developments.
3.12 In a communication to Spoornet reference was made to the motivation in the Commission's previous report that liability in terms of items 1 and 2 of Schedule 1 to the Legal Succession to the South African Transport Services Act[26] was not ordinary delictual liability and the statement in the report that the possibility existed that the usual delictual liability had been preserved. It was pointed out that section 70(6) of the Railways and Harbours Control and Management (Consolidation) Act[27] expressly preserved the retention of the usual delictual claims as follows:
(6) The preceding provisions of this section shall not deprive any person of any right which he may have, apart from this section, to recover compensation from the Administration for any loss which he may have suffered as a result of such a fire as is mentioned in sub-section (1).
It was stated that it might be argued that items 1 and 2 of Schedule 1 excluded ordinary delictual liability and Spoornet was asked whether it would support provisions similar to section 70(6) quoted above to preserve liability not covered by the special provisions.
3.13 Discussions were held with a representative of Spoornet during March 1998. He is not sure whether ordinary liability has been preserved. He has no objection to the scrapping of the special notice requirements regarding Spoornet provided that the other special provisions should also be scrapped and claims be dealt with as ordinary delictual claims. However, he suspects that other parties will be worse off than they are under the present provisions and consultation with, for instance, the representatives of farmers is essential. He also supports a holistic approach where land transport as a whole would be considered in order to level the playing fields. Why should Spoornet be treated differently than private railway operators? Why should Spoornet alone be responsible for fencing and the building of railways and even subsidise road transport by a levy on diesel, while road transport firms have no special responsibilities regarding the maintenance of roads, fences and land adjacent to roads?
3.14 If ordinary delictual liability is retained there can be little doubt about the constitutionality of an additional remedy, even if this remedy is strictly limited . However, it does not appear to be desirable to reform the liability of railway transport services in isolation. This excludes a solution to merely state clearly that ordinary delictual liability is retained. It may also be argued that the special limitation periods regarding the South African Transport Services should not be removed without reforming the provisions regarding its liability as a whole. If the statutory provisions referred to in the paragraph 3.9.1 above exclude ordinary delictual liability there is serious doubt about the constitutionality of the provisions as inconsistent with sections 34 and 36 of the 1996 Constitution. The period of three days within which the claims must be lodged is extremely short.[28] The minimum amendment necessary to sufficiently enhance constitutionality of the provisions in question appears to be a provision similar to clause 2(4) in the draft legislation in the Annexure that the court may condone failure to give notice if sound reasons exist for the failure or the defendant was not unreasonably prejudiced by the failure. It is submitted that an exception to preserve items 1 and 2 of Schedule 1 to the Legal Succession to the South African Transport Services Act 9 of 1989 is not acceptable. The reform of these provisions should receive the urgent attention of the responsible Department, especially since there is a possibility that the provisions are unconstitutional.
3.15 The Compensation Commissioner and the Department of Transport did not respond to requests to supply their opinions whether an exception was justified in respect of the legislation in respect of which they have an interest and, if so, the reasons that justify such an exception.
3.16 Section 44 of the Compensation for Occupational Injuries and Diseases Act[29] provides that a right to benefits in terms of the Act lapses 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. This limitation appears to be reasonable but there appears to be insufficient reasons why the provisions of the draft legislation in the Annexure should not apply. Section 23 of the Road Accident Fund Act,[30] inter alia, provides that the right to claim compensation under section 17 from the Fund or an agent 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, shall become prescribed upon the expiry of a period of three years from the date upon which the cause of action arose; that prescription of a claim for compensation shall not run against a minor, any person detained as a patient in terms of any mental health legislation, or a person under curatorship; and that no claim which has been lodged in terms of section 24 shall prescribe before the expiry of a period of five years from the date on which the cause of action arose. These limitation appear to be reasonable. However, in paragraph 10.1 of a White Paper of the Department of Transport dated January 1998 it is proposed that a merits claim form must be lodged within 12 months of the accident, failing which there is no claim; the normal 3 year prescription period in the Prescription Act[31] will apply but commence to run only upon final resolution of the merits. This provision may be constitutional, but a power to condone as proposed in clause 2(4) of the legislation in the Annexure is preferable in respect of failure to lodge a claim form within a year. Consider the case of someone in a coma for most of a year after an accident or a very young child who does not claim for something arising from the death of both his or her parents. There does not appear to be justification why the legislation recommended in the Annexure should not apply to these claims. It is recommended that claims under the Compensation for Occupational Injuries and Diseases Act and the Road Accident Fund Act should be subject to the provisions proposed in the draft legislation in the Annexure.
3.17 To ensure a uniform arrangement clause 6(1) of the previous draft legislation provided that even provisions not expressly identified in the Bill should be repealed if they were inconsistent with the provisions of the draft legislation. The State Law Advisor changed this provision to read that in so far as a provision of the draft legislation was inconsistent with the provisions of another Act, the provisions of the draft legislation applied. Clause 5 of the draft legislation in the Annexure (based on section 210 of the Labour Relations Act 66 of 1995) provides that if any conflict, relating to the matters dealt with in the legislation, arises between the legislation and the provisions of any other law save the interim Constitution, or Constitution, or any Act expressly amending the legislation, the provisions of the legislation will prevail.
3.18 Clause 6(2) of the previous draft provided that the amendment or repeal of a law by the draft legislation should not affect any legal proceeding or a requirement regarding notice of legal proceedings in connection with a debt which had become due before the legislation came into operation. Such a provision may result in the application of provisions which may be unconstitutional after the coming into operation of the new legislation. In line with the form of the order in the Mohlomi case[32] the following wording is recommended in clause 4(2) of the draft legislation:
The amendment or repeal of a law in terms of subsection (1) shall apply to all actions instituted either before or after the commencement of this Act which were not before such commencement barred by a provision amended or repealed by subsection (1) or finally determined by judgments delivered at first instance or on appeal or by settlements duly concluded.
[13] Act 70 of 1988.
[14] Act 122 of 1992.
[15] Act 68 of 1995. Par [19] of the Mohlomi case above. References between square brackets below are references to paragraphs of this case.
[16] [18].
[17] [9].
[18] Par 8.8.4 at 25.
[19] [12].
[20] Ability of a creditor to acquire knowledge by reasonable care should always result in the running of prescription and exceptional cases should be dealt with under the court's power to condone failure to give notice. Cf Abrahamse v East London Municipality and Another 1997 (4) SA 613 (SCA) 633F-634B.
[21] [13].
[22] [19]. See [7] for a reference to the question whether short notice causes prejudice to the other side.
[23] Act 130 of 1993.
[24] Act 56 of 1996.
[25] Act 9 of 1989.
[26] Act 9 of 1989.
[27] Act 70 of 1957.
[28] Cf Mohlomi v Minister of Defence 1997 (1) SA 124 (CC) 130F-G.
[29] Act 130 of 1993.
[30] Act 56 of 1996.
[31] Act 68 of 1969.
[32] See also Kettledas NO v Minister of Law and Order 1998 (2) SA 76 (SE) 85H.
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