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ANNEXURE: DRAFT LEGISLATION

GENERAL EXPLANATORY NOTE:

[ ] Words in bold type in square brackets indicate omissions from existing enactments.

____ Words underlined with a solid line indicate insertions in existing enactments.

BILL

To provide for notice requirements in connection with, and other requirements for, the institution of legal proceedings in respect of certain debts against government institutions or persons for whose actions government institutions are liable in law; to repeal or amend certain Acts; and to provide for matters incidental thereto.

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

1. Definitions

In this Act, unless the context otherwise indicates —

(i) “delict” includes an unlawful act for which a defendant is liable without fault in terms of statutory provisions;

(ii) “government body” means —

(a) a municipality contemplated in section 151 of the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

(b) a traditional authority contemplated in section 211 of the Constitution of the Republic of South Africa, 1996;

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

(d) South African National Parks established by section 5 of the National Parks Act, 1976 (Act No. 57 of 1976); and

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

(iii) “member of the Cabinet” means a member of the Cabinet contemplated in section 91 of the Constitution of the Republic of South Africa, 1996;

(iv) "member of an Executive Council" means a member of the Executive Council of a province contemplated in section 132 of the Constitution of the Republic of South Africa, 1996;

(v) “State” means the body consisting of the departments in Schedule 1 and organisational components in Schedule 2 to the Public Service Act, 1994 (Proclamation No. 103 of 1994).

2. Notice of intended legal proceedings must be given to government institution.

(1) Subject to the provisions of this Act, no legal proceeding for the recovery of a debt arising from delict shall be instituted against the State, a government body, a member of the Cabinet, a member of an Executive Council or other functionary of the State or of a government body in his or her official capacity or a person for whose actions the State or a government body is in law liable in respect of the debt in question, unless the person who or body which is sued (hereafter referred to as the defendant) has in terms of subsection (2) been given notice in writing of the intention to institute the legal proceedings in question or the defendant consents in writing to the institution of legal proceedings without such notice.

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

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

(b) be delivered or sent by certified mail within six months from the date upon which the debt became due —

(i) if a department or organisational component of the State is involved, to the head of the department or organisation component mentioned in the second column of Schedule 1 or 2 to the Public Service Act, 1994 (Proclamation No. 103 of 1994); or

(ii) if a government body is involved to the chief executive officer of the body concerned; and

(iii) to any other defendant.

(3) For the purposes of paragraph (b) of subsection (2) a debt shall not be deemed to be due until the creditor (or his or her tutor or curator if he or she is a minor or insane or under curatorship) has knowledge of the identity of the debtor and of the facts from which the debt arises: Provided that a creditor or his or her tutor or curator, as the case may be, shall be deemed to have such knowledge if he or she could have acquired it by exercising reasonable care unless the debtor wilfully prevents him or her from acquiring such knowledge.

(4) If a defendant relies on a creditor’s failure to give notice in terms of section 2(2) of the intended legal proceedings, a court having jurisdiction may condone the failure at the request of the creditor if the court is satisfied —

(a) that good cause exists for the failure by the creditor, tutor or curator; or

(b) that the defendant was not unreasonably prejudiced by the failure

and 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.

(5) The Court shall not have regard to non-compliance with the provisions of this section if such non-compliance is not raised by a defendant.

3. Prescription of debts.

Subject to the provisions of this Act, a debt shall be extinguished by prescription as provided in 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).

4. Repeal and amendment of laws.

(1) Subject to the provisions of 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) 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.

5. Application of Act when in conflict with other laws

If any conflict, relating to the matters dealt with in this Act, arises between this Act and the provisions of any other law save the Constitution of the Republic of South Africa, 1993 (Act No. 200 of 1993), or the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996), or any Act expressly amending this Act, the provisions of this Act will prevail.

6. Short title.

This Act Shall be called the Limitation of Legal Proceedings against Government Institutions Act, 19____

SCHEDULE

ACTS AMENDED OR REPEALED BY SECTION 5