Institution of Legal Proceedings Against Organs of State Bill: discussion

Meeting report

JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
15 September 2000
INSTITUTION OF LEGAL PROCEEDINGS AGAINST ORGANS OF STATE BILL: DELIBERATIONS

Documents handed out:
Working Document: Institution of Legal Proceedings Against Government Institutions Bill [B 65B-99]
Amendment of section 96 of the Customs and Excise Act 91 of 1964 proposed in Bill 65 of 1999

Chairperson: Advocate JH De Lange

SUMMARY
The changes made to Draft 6 of the Institution of Legal Proceedings Against Organs of State Bill were discussed and agreed to. Clause 2 of the Bill proved to be the most contentious, with members disagreeing as to whether it adequately captured the concept it is intended to convey. This clause is to be revisited by the Committee. The short title of the Act and the timeframe for bringing the Act into effect were also not settled and will be considered at the next meeting. Deliberations on the Bill will be concluded on Thursday 21 September.

On 20 September Deputy Minister Gillward will give a briefing on the Cross-Border Bill. The Limitations Bill will be further discussed before 20 September so that it will be ready for 21 September, with the Committee meeting on Friday if the work is not complete.

The important clauses of the Judicial Matters Bill were to be supplied to Adv De Lange by the Department to allow for a press statement on the Bill so as to allow sufficient time for comments to be received.

MINUTES
Clause 1 - Definitions
Clause 1(1)(viii) – "organ of state"
Mr Labuschagne of the Department questioned whether the Commissioner of Customs and Excise could be held liable as an "organ of state". Clause 1(1)(viii)(g) as now framed refers to persons who are in the employ of organs of state listed in paragraphs (a) – (f). The officer described in paragraph (d) as inserted is not really in the personal employ of the Commissioner. Advocate De Lange (ANC) was of the opinion that paragraph (d) did not refer to an institution but rather to a person.

It was agreed that the South African Maritime Safety Authority in (e) is to remain in, the Road Accident Fund of (g) is to be removed and the South African National Roads Agency included as (f).

Paragraph (g) is amended with the word "person" replacing "officer"

Clause 1(1)(ix) – "officer"
This entire paragraph is removed.

Clause 1(1)(x) – "Prescription Act"
This entire paragraph is removed.

Clause 1(1)(xi) – "Provincial Constitution"
This entire paragraph is inserted as written.

Clause 1(2) – Institution of legal proceedings
Mr Labuschagne stated that this subclause had been inserted to make it clear that legal proceedings are only instituted after service of a summons, and not after notification to an organ of state of an intention to initiate legal proceedings.

Mr Swart (ACDP) indicated that in many instances commencement of proceedings is taken from the date of issue of a summons and not necessarily from the date of service. Mr Swart asked which of the two words, "issue" or "service", was preferable.

As the term "issue" may not apply to other processes as the clause reads "service…of any process…", it was agreed that "service" should be used.

Ms Chohan-Kota (ANC) was concerned that once a summons is sent to the sheriff for service, the applicant loses control of the process, and due to inefficiency in certain Sheriff’s offices it can take very long for a summons to be served causing prescription to run against the applicant. Advocate De Lange questioned whether applicants should really be given additional time considering that the Bill had already increased prescription to three years. Ms Chohan-Kota agreed, but felt that the matter should rather be left to the courts to decide the matter on a case-by-case basis rather than changing the law. Advocate De Lange disagreed saying that this Bill repealed statutes that varied amongst themselves on whether legal proceedings are initiated at the service or the issue of a summons. He felt that a standard must therefore be set in this Bill.

After further discussion Advocate De Lange (ANC) agreed with Ms. Chohan-Kota (ANC) that it was important to know whether prescription stopped running at service of the summons or at issuing of the summons. Mr Swart (ACDP) expressed some concern about prejudicing the state if lengthy delays are allowed between the issue and the service of a summons, but Advocate De Lange was of the opinion that applicants only disadvantaged themselves by delaying and felt that the term should be "issue". Mr Swart pointed out that the MVA Act and claims against provincial hospitals require "service" of papers within the prescribed period. Mr Labuschagne offered to delete the clause but Advocate De Lange said it should remain, unless Ms. Chohan-Kota preferred the phrase "issuing of process". Ms. Chohan-Kota was concerned that the courts might resort to the old interpretation and felt that "issue" was better.

After a break and further discussion, Advocate De Lange and Mr Swart realised that "service" was a more certain term and was easier to prove in evidentiary terms than "issue". The term "service" was agreed upon.

Clause 2 – Amendment or repeal of laws
Clause 2(1)
This has been inserted because on second reading it was realised that the prescription issues must be kept together for the sake of clarity. Once the old prescription laws are repealed, then Clauses two and three onwards become relevant.

Clause 2(3)(a)
Adv De Lange was of the opinion that there was no problem with the concept, but questioned whether the wording was capturing this concept adequately. In particular the phrase "period of prescription contemplated in Clause 16" troubled him and he proposed the use of the phrase "new period of prescription", which Ms Jana (ANC) disagreed with. After some discussion around the matter it was agreed that members would give the clause thought and make suggestions at the next meeting.

Clause 2(3)(b)
Adv De Lange explained that this clause existed to prevent the legal anomaly of allowing prescription to elapse during the seven month period created by this Bill during which proceedings cannot be initiated. There was substantial disagreement as to whether this clause actually captured the Committee’s understanding of how it would operate, with Ms Chohan-Kota (ANC) feeling most strongly that it was confusing. Adv De Lange noted that the Mohlomi judgement was handed down in 1995 meaning that the window period of prescription being considered in this clause would only really apply to minors, but the clause should nevertheless stand to provide clarity for those few number of claims that would fall under it. He agreed that it may be problematic but did not see how else it could be phrased. Ms Botha (ANC) proposed amending the third line of s2(3)(b) to "prescription will be deemed not to be completed" which was agreed to by all.

Mr Jeffery (ANC) felt that the Bill should be more clear about claims that had already prescribed prior to the commencement of the Act and that it did not apply retrospectively. Adv De Lange felt it unnecessary and incorrect to include such a clause as the Constitution made matters of retrospectivity sufficiently clear in Schedule 6 Item 2.

Adv De Lange felt that s2(2) was unclear and should be looked at by Mr Labuschagne and that, apart from stylistic problems, the insertion of "deemed" and the retrospectivity argument of Mr Jeffery (ANC), it appeared that the concepts were in place in s2.

The remainder of page 7 and all of pages 8 and 9 are deleted.

Clause 3 – Notice of intended legal proceedings
Clause 3(1)
Mr Labuschagne said he was unsure whether s3(1) should still contain the words "Subject to this Act" given the deletions that have gone before it.

Clause 3(3)
Mr Swart (ACDP) asked whether "regarded" in s3(3)(b) should not be changed to "deemed", but Mr Labuschagne pointed out that the State Law Advisors prefer "regarded" and the earlier insertion of "deemed" decided at this meeting would similarly be drafted as "regarded".

Clause 3(4)
Mr Labuschagne pointed out that clause 3(4) had now been split into subclauses for clarity, a change which the Committee wholeheartedly supported.

Adv De Lange said that "as contemplated" should be inserted into s3(4)(b) to make the phrase "extinction of debts by prescription as contemplated by Clause 16…"

There was some discussion as to whether s3(4)(c) and s3(4)(d) still retained relevance, and it was decided that both were necessary and must be worded in the same way. Mr Labuschagne pointed out that if it was made clear in s3(4)(b) that a debt that has not become extinct is being referred to (such as in "if the court is satisfied that the debt has not become extinct and…") then the shaded portion can be removed from s3(4)(c).

Clauses 3(5) and 3(6)
It was agreed that both s3(5) and s3(6) would remain.

Clause 4 – Service of Notice
Clause 4(1)
It was agreed that a definition of "notice" be inserted, and that subclauses (iv) and (v) be removed and the words "an officer" removed in s4(1)(g).

Clause 4(2)
Adv De Lange asked whether there should not be proof, in the form of a transmission record, of having sent the fax or email included as part of the affidavit. After discussion it was decided to leave the matter of proof open and not say what type of proof is necessary: Clause 4(2)(b)(i) was amended to read "indicate the date and time…".

Mr Swart (ACDP) was of the opinion that requiring proof of transmission would dissuade people from serving notice by email as no clear proof of having sent the mail exists. This he considered appropriate, as it meant that only if other forms of delivery were not available would email be used. Mr Jeffery (ANC) said that the remainder of the requirements in s4(2)(b)(iii) could be done on the papers and did not need to form part of the affidavit. He was concerned that while transmission records existed for faxes, no such thing existed for email messages. Advocate De Lange said that the words could be "any proof of transmission."

Adv De Lange explained that the purpose of s4(2) was to minimise the amount of legal action necessary by making it easy to have notice delivered within the prescription period without applicants having to apply for condonation for failure to serve notice within the prescribed period. Mr Labuschagne asked whether an ordinary signed statement would not suffice, rather than a sworn affidavit. Advocate De Lange disagreed. He said that if the aim was to avoid litigation then it should be a sworn affidavit. Adv Schmidt (DP) said that there was justification for a signed statement, as attorneys know that to make untruthful statements is to risk censure from the Law Society.

Clause 5 – Service of Process
Clause 5(1)
Mr Labuschagne indicated the insertion of "despite paragraph (a)" in s5(1)(b) to make paragraph s5(1)(a) the principal paragraph. Adv De Lange agreed that this was much better, as did Mr Swart (ACDP).

Clause 5(4)
The Committee was happy with the insertion of s5(4). Adv De Lange realised that because s5(4) is written in terms of subclause (2), it would be necessary to retain s2(1) and to change it to "subject to subclause (4)". Mr Labuschagne disagreed, and after discussion on the point the Committee agreed to think about it and return to it later.

Clause 6 – Short title of Act
Adv De Lange asked whether the title was not too narrow now that legal proceedings have been narrowly defined. Mr Labuschagne was of the opinion that given the importance of s2(2) to the entire Bill, the short title should capture this provision and reflect the object of the Bill. Advocate De Lange agreed, saying that the short title should also reflect the amended long title. There was discussion around whether prescription should be mentioned in the short title, which was unresolved. Advocate De Lange asked Mr Labuschagne to do some thinking around the title, although Mr Jeffery (ANC) and Mr Molewa (ANC) indicated that they were happy with it.

Adv De Lange then raised the question of whether proclamation should be required before the Act comes into effect. Advocate De Lange was in favour of avoiding as much delay as possible and making the Act come into effect on signature by the President considering that no regulations need to be drafted. Mr Jeffery (ANC) was opposed to this idea. Again the Committee were asked to deliberate on the issue.

Schedule
Section 96 of the Customs and Excise Act was repealed completely, rather than amended, and Section 89 left to stand. Mr Jeffery (ANC) asked for clarity on the repealing of the Correctional Services Act as he thought it had already been repealed. Mr Labuschagne said it was a complex issue that he was attempting to resolve with the State Law Advisors. Finally Advocate De Lange expressed some doubt as to the constitutionality of the amendment to the National Roads Agency Act as expressed in the Schedule.

The meeting was concluded.