INSTITUTION OF LEGAL PROCEEDINGS AGAINST CERTAIN
ORGANS OF STATE ACT 40 OF 2002
Most debts prescribe after a period of three (3) years. However, when instituting legal proceedings for the recovery of debt against an organ of state, the Institution of Legal Proceedings Against Certain Organs of State Act 40 of 2002 (hereinafter referred to as “the Act”) stipulates that no legal proceedings for the recovery of a debt may be instituted against an organ of state unless notice was given to the particular organ of state of the creditor’s intention to institute legal proceedings or, the organ of state has consented in writing to the institution of legal proceedings.
Subsection 3(2) of the Act reads as follows:
“(2) A notice must-
(a) within six months from the date on which the debt became due, be served on the organ of state ….
(b) briefly set out-
(i) the facts giving rise to the debt; and
(ii) such particulars of such debt as are within the knowledge of the creditor.”
For purposes of the act the debt means any debt arising from any cause of action which arises from delictual, contractual or any other liability, including a cause of action which relates to or arises from any act performed under or in terms of any law or any omission to do anything which should have been done in terms of any law and for which an organ of state is liable for payment of damages (section 1 of the Act).
An “organ of state” is defined as follows in section 1 of the Act:
“(a) any national or provincial department;
(b) a municipality contemplated in section 151 of the Constitution;
(c) any functionary or institution exercising a power or performing a function in terms of the Constitution or a provincial constitution referred to in section 142 of the Constitution;
(d) the South African Maritime Safety Authority established by section 2 of the South African Maritime Safety Authority Act, 1998;
(e) the South African National Roads Agency Limited contemplated in section 3 of the South African National Road Agency Limited and National Roads Act, 1998;
(f) the National Ports Authority Limited, contemplated in section 4 of the National Ports Act, 2005, and any entity deemed to be the National Ports Authority in terms of section 3 of that Act;
(g) any person for whose debt an organ of state contemplated in paragraphs (a) to (f) is liable.”
In terms of the Prescription Act 68 of 1969, prescription is postponed in the following circumstances:
(a) if the person against whom the prescription is running is a minor or;
(b) is insane, or;
(c) under curatorship, or;
(d) prevented by superior force from interrupting the running of prescription.
In these cases prescription would only be completed within three (3) years after the day on which the relevant impediment has ceased to exist. However, the six month notice period as prescribed in terms of section 3(2) of the Act, applies equally to minors, mentally ill persons or persons under curatorship. If you therefore intend to institute legal proceedings against an organ of state, for example, for damages as a result of a motor vehicle accident resulting from a pothole or a claim based on medical negligence against a government hospital, notice of your intention to proceed with legal action should be given within six (6) months of the date of the cause of action arising. It is therefore imperative that you should consult with an attorney as soon as possible after the occurrence of the event so that proper notice may be given within the stipulated time. A creditor is not entitled to issue summons against an organ of state before the expiry of a period of thirty (30) days after the notice as envisaged in terms of section 3(2) of the Act, was served on the relevant organ of state.
Alternatively, if a creditor fails to give notice of his or her intended legal action and an organ of state relies on the creditor’s failure to serve the said notice, the creditor may apply to court for the condonation of such failure who may grant condonation if it is satisfied that certain criteria has been met complied with. Should you therefore have a claim against an organ of state, it is important to obtain legal advice regarding the procedures to be followed.
By: Aneen De Wet (LL.M, LL.B)