Limitation of Legal Proceedings Against Government Institutions Bill: discussion

Meeting report

JUSTICE AND CONSTITUTIONAL AFFAIRS PORTFOLIO COMMITTEE
5 September 2000
LIMITATION OF LEGAL PROCEEDINGS AGAINST GOVERNMENT INSTITUTIONS BILL: DELIBERATIONS

Documents handed out:
Working Document: Draft 3 - shows all proposed amendments
Working Document: Draft 3 A - shortened version showing preferred options only
Summary of Prescription Act 68 of 1969 / Schedule of prescription legislation
Limitation Of Legal Proceedings Against Government Institutions Bill [B65 - 99]
Draft Resolution: Draft 1 on the Limitation of Legal Proceedings against Government Institutions Bill [See Appendix 1]

Chairperson: Advocate JH De Lange

SUMMARY
The Committee considered the section on definitions in the Limitation of Legal Proceeding Against Government Institutions Bill, particularly "organ of state".

It was felt that the Road Accident Fund had not carefully considered the Bill and its definition of "organ of state". The Chairperson instructed that it be sent a copy of the Bill and be requested to make a written reply on whether it should be included in this Bill. The Committee sought clarity on the functions of the South African Roads Board and whether it or the South African Roads Agency should be included under this Bill. Members questioned the inclusion of courts and judicial officers under the definition of "organ of state" while the Constitution carries a specific exclusion of them. The Committee considered a resolution to say the South African Law Commission should look at prescription legislation with a view to streamlining it and bringing it in line with the Constitution.

In finding that its previous work on this section had had the unintended effect of repealing periods of contractual prescription, as well as the intended delictual prescriptions, the Committee solved the problem by referring directly to s 16 of the Prescription Act at s 5 of the Bill under discussion.

MINUTES
Directorate of Special Operations Bill
The Chairperson mentioned that representations from the National Director of Public Prosecutions, the SAPS and the National Intelligence Agency on the Scorpions Bill [Directorate of Special Operations Bill] would be heard on 6 September 2000.

The Chairperson expressed concern that the media carried reports saying that he questioned the Constitutionality of that Bill while he only sought clarity from the drafters on the issue. He said what is worrying is that a whole week was afforded for public submissions on the Directorate of Special Operations Bill but none were forthcoming; instead people decided to go to comment to the media.

Limitation Of Legal Proceedings Against Government Institutions Bill [B65 - 99]
Clause 1 Definitions
(i) "creditor"
The Chairperson said in the definition of "creditor" applies to everything but contract.

(viii) "organ of state"
Mr Cronje (South African Law Commission) was asked to report back on the status of certain bodies with regard to inclusion in the definition of "organ of state". Mr Cronje said he had contacted the Road Accident Fund, the South African Roads Board and the Compensation Commissioner to get their views on whether they should be included in the definition of "organ of state".

After several attempts no one could be found to provide an opinion at the Compensation Commissioner's office. The Road Accident Fund's Chief Law Advisor said they are opposed to the repeal of section 23 of the Road Accident Fund Act and expressed the opinion that the Fund is not a government institution but similar to an insurance company. He said the lengthy notice period permitted by the Bill before dealing with claims would allow for corruption and loss of evidence.

The Chairperson said the Road Accident Fund's advisor clearly did not understand the Bill. Mr Cronje should send him a copy of the Bill and a letter saying they should carefully consider it and make a written representation of what their views are.

Mr Cronje noted that the South African Roads Board had said that at this stage the body merely exists without any functions. They indicated that the South African National Roads Agency should instead have this benefit since they are the ones who have the function of maintaining roads.

Ms F Chohan-Kota (ANC) asked if the Bill repeals the provisions of the Merchant Shipping Act regarding prescription.

Mr Cronje replied that the Act deals with contract as well not only with delict. With contract issues, the prescription period remains one year and issues of delict would be covered by the Bill.

Mr J Jeffrey (ANC) suggested that the National Roads Board be removed from the Bill and that the National Roads Agency be inserted in its place since Mr Cronje had said the former exists without having any functions.

He said he is not sure that the Maritime Authority and the Customs and Excise should be included in the Bill as there is doubt whether these can be classified as "organ of state".

He said Judge Didcott in Mohlomi's case was more concerned about the wording of the powers of the court to intervene (which were couched such that the Court could be seen as repealing legislation) in prescription matters.

The Chairperson said he thinks that the Bill solves the problem by allowing for the Court to condone failure to give notice by claimant.

Regarding prescription legislation, the Chairperson asked committee members to look at a resolution (this was handed out to members) which proposes that the South African Law Commission look at prescription statutes with a view to streamlining them.

The Chairperson commented that the definition of "organ of state" in the Constitution is too wide; it would afford even parastatals a protection they do not deserve. What has been done in the Bill is to narrow down the definition in the Constitution by excluding "any other functionary or institution exercising a power or performing a public function in terms of any legislation" but including "any other functionary or institution designated by the Minister…" This approach is in line with the one taken by parastatals on the Promotion of Access to Information Act where they had argued that they are not organs of state and should thus not be compelled to divulge information.

Mr Jeffrey commented that the one matter that the Bill goes further on than the Constitution, is including the courts and judicial officers.

The Chairperson said this has been deliberate since it is intended that they should be included when acting within the scope and course of their duties.

Mr Jeffrey said he is nervous about subclause 1(viii)(d) allowing the Minister to be able to designate a functionary or institution as an organ of state. He asked if it is wise to give the Minister the power to legislate rather than amend when a need arises to so designate.

The Chairperson said an amendment to that effect could be effected. A softer option was taken that as laws change the Minister can bring the matter to Parliament and the latter would pass a resolution to say they approve the designation. So Parliament would still be needed to approve it before the Minister publishes it in the Gazette, this provision appears in other legislation as well to avoid the cumbersome option of having to amend every time when dealing with technical matters. He conceded that Mr Jeffery' s option is clearer as one does not have to look for proclamations to see which institutions or functionaries have been designated.

Mr Jeffrey said if subclause 1(viii)(d) and clause 2 is omitted then the amendment could be effected. He added that he is not sure if the Road Agency has carefully considered its inclusion under the Bill as he thinks it has special circumstances. He suggested that clauses 1(viii)(e) and (f) be excluded.

The Chairperson said if these clauses are left out it would not be complying with the Mohlomi case. The Committee is certain that the Bill is constitutional and having done the audit of prescription laws it would be necessary to be consistent all over and an act would only be left out if it would be unconstitutional to deal with it in the Bill.

Ms Chohan-Kota suggested that it might be necessary to include the tests laid down in Mohlomi's case for the Minister to satisfy himself if there is a need to designate a functionary or institutions as "organ of state". This would allow these functionaries or institutions to consider claims responsibly before being involved in expensive litigation.

Dr J Delport (DP) commented that all lawyers will welcome this legislation and the Committee should not hesitate to put it into effect.

Mr Jeffery said there is no reference to the Road Accident Fund in the definition of organ of state and it should thus not be referred to at all.

Ms S Camerer (NNP) said the Constitution has a specific exclusion in its definition of an organ of state saying "…but does not include a court or a judicial officer" [Section 239]. She said in the light of the above she cannot see the merits of including the courts and judicial officer in the definition. She asked if the clause could not be revisited with a view to changing it.

Ms Chohan-Kota said she notices that the Public Service Act, the Rand Water Board Act, the Archives Act, the Expropriation Act have been left out while they all provide for one month notice and six months prescription.

Mr Cronje responded that he would look at these statutes but his view is that they do not deal with delictual claims.

The Chairperson summarised the issues that had arisen in their discussion on the the definition of "organ of state" as follows:
That the definition of "organ of state" be revisited regarding the following issues:
- whether the judicial officer should be included;
- whether clause 1(viii)(d) should be in the Bill at all and if not, clause 2 would also fall out;
- which specific institutions should be included.
He directed Mr Cronje to look at whether the Road Accident Fund should be included and also at what the Road Board actually does and whether it should be included.

Schedule of prescription legislation
Mr Cronje said the schedule on prescription legislation which had been requested by the Committee had been prepared and this was handed out.

Looking at this document, the Chairperson asked whether the drafters are proposing that once the Bill is passed the Prescription Act would be the only act and all other acts dealing with prescription would fall away. The drafters responded that this is true regarding those statutes listed under the heading "Provisions earmarked for repeal" in this document. The Chairperson acknowledged that this would make it easier in practice to deal with prescription instead of being faced with a situation of having to hunt for prescription provisions from different Acts that have varied provisions.

The Committee went over the Acts in the Schedule in this document. It was felt that those dealing just with government functions would be repealed. The ones that have functions outside government functions need to be revisited to state only when they perform government functions would they be afforded the protection of the Bill.

Mr Jeffrey said that if liability is with Transnet in terms of the Legal Succession to South African Transport Services Act, the organisation does not fall into the definition of "organ of state" and it would be excluded anyway from the Bill. There would be no need to say it should be excluded. The Chairperson said the issue should be flagged to be dealt with at a later stage.
The Road Accident Fund (RAF) - the Committee agreed to flag this issue. Mr Cronje was instructed to correct the details of notices and prescription relating to the RAF in the Schedule of prescription legislation.
The National Roads Agency's inclusion had to be looked at by the Committee.

(iii) "debt"
The Chairperson said the definition of "debt" worries him as it is much broader than delict but he would like the Committee to see if there are any other issues they want to include.

(iv) "executing authority"
The Chairperson said since the Presidency is a gazetted institution, clauses 1(iv)(a) and (b) do not have to be included in the Bill. The Schedule to the Bill has to be altered to reflect this change.

Mr Jeffery asked whether the reference to "Secretary" in clauses 1(iv)(d) and (e) is accurate considering that these are civil servants and everyone else is a political office bearer.

The Chairperson said the Act is understood to say it changes who one can serve to (and not who one sues) to make it easier for litigants to serve documents to institute action against organs of state.

Mr Jeffery said he has no problem with the principle but that the formulation in clause 4 refers to executing authority being cited as defendant or respondent.

The Chairperson urged members to consider whether executing authority refers to service of process or the person one cites when suing.

Afternoon session:
Clause 1 Definitions (continued)
(iv) "executing authority"
Mr Labuschagne of the Department opened by saying they would delete (h)(ii) from Clause 1(iv), the definition of "executing authority". In this way, only organs of state that are present will be provided for.

The Chairperson said that Clause 3(2)(b) will remain since this deals only with service of notice.

(ix) "officer"
Advocate Masutha (ANC) asked how broad they wanted the definition to be, remarking he could see merits on both sides. The Chairperson responded that the present definition would narrow the scope of the Act somewhat.

(viii) "organ of state"
Mr Labuschagne brought the attention of the Committee back to this definition, saying the Department wanted to make changes to (g): "any officer who acted, or failed to act, within the course and scope of his or her duties and for which actions or omissions an organ of state contemplated in paragraphs (a) to (f) is liable for the payment of a debt."

The Chairperson, as well as other members of the Committee, had reservations about the use of the word "debt". The Committee flagged this to be looked at later.

(x) "Prescription Act"
Advocate Masutha asked if they could not find a better name than "Prescription Act", since there is already a law in South Africa called The Prescription Act. Advocate Masutha suggested "Prescription Measures" or "Prescription Statute". The Chairperson agreed that a potential problem does exist and asked the Committee to think of a suitable replacement.

The Chairperson suggested that Clause 1(x)(e) be amended to read, " Any other provision in any other law providing for the extinction of debts by prescription". Mr Cronjé of the Department commented that this would be outside the scope of the Bill in that it would include contractual matters, whereas the Bill is to be restricted to delict.

Mr Jeffery (ANC) said he had a problem with Clause 5 in that he wondered if it were sufficiently clear to show exactly what has been repealed and what has been saved. He wondered if it were clear, for example, that the repealed s 57 of the Police Act was to be replaced by another prescription period. The Chairperson responded that he foresaw no problem since the conclusion that there was a replacement was the only one a person could reach.

The Problem of Inadvertent Repeal of Contractual Prescription
The Chairperson at this point asked if they were inadvertently deleting all the contractual periods of prescription through the wording of Clause 1(x), the definition of "Prescription Act". If so, this would be a very big oversight since the Act is to determine prescription periods for delict only. The Chairperson suggested that the best way to deal with this is to change Clause 5 to read, "Subject to s 3, a debt shall only be extinguished by prescription as provided in s 16 of the Prescription Act". In this case, the proposed changes to (e) of the definition of "Prescription Act" as s 1(x) would not be necessary since s 16 of the Prescription Act will always apply in delictual matters, subject to s 3. The treatment of the Customs and Excise Act in Clause 1(x)(e) will have to be changed, since this was the only Act listed whose contractual provisions were not deleted. Mr Cronjé said he anticipated no problems with this solution.

Clause 2 Designation of functionaries and institutions as organs of state
Ms Chohan-Kota (ANC) asked if Clause 2(1)(b)(ii)(bb) could be deleted. The Chairperson agreed, since what that section referred to would now be covered by Clause 2(1)(b)(ii)(bb) and so is no longer needed.

Mr Labuschagne pointed out some technical amendments recommended by the Department. He said all uses of the word "concerned", as in Clause 2(2), could be replaced with "in question" and that "a notice" in Clause 2(1)(b)(ii) could be replaced with "the notice". The Chairperson said these were matters of principle. Mr Labuschagne also said in Clause 2(4)(a), the words "on his or her own accord, but" could be deleted, as well as the words "if he or she is satisfied that since the publication of the notice concerned," at Clause 2(4)(b)(i). The Chairperson said they would flag these and think about them.

A Schedule of Prescription Periods
Ms Chohan-Kota suggested there should be a consolidated list of changes for certainty and ease of access. The Chairperson said this would mean asking Parliament to postpone a decision for bureaucratic and administrative purposes. Adv Masutha supported Ms Chohan-Kota, saying a series of prescription amendments to go through can be cumbersome for legal practitioners, calling this a problem of accessibility of legal instruments.

The Chairperson said this plea for a schedule had already been rejected as too inflexible and added that it was also unnecessary. Mr Labuschagne agreed, saying he was not in favour of schedules. Nevertheless, the Chairperson asked that Clause 6 be amended (in line with what Ms Chohan-Kota had suggested) so that each new amendment or repeal shall be published.

The meeting was adjourned.

Appendix 1:
Draft Resolution: Draft 1 [LIM 23]

Report of the Portfolio Committee on Justice and Constitutional Development on the Limitation of Legal Proceedings against Government Institutions Bill [B65 - 99] (National Assembly - section 75), dated … September 2000, as follows:

The Portfolio Committee on Justice and Constitutional Development, having considered the subject of the Limitation of Legal Proceedings against Government Institutions Bill [B65 - 99] (National Assembly - section 75), referred to it, submits the Limitation of Legal Proceedings against Organs of State Bill [B65B - 99] (National Assembly - section 75). The Portfolio Committee wishes to report further, as follows:

During its deliberations on the Bill, the Committee's attention was drawn to the fact that certain existing laws make provision for different prescription periods in respect of certain debts. Due to the fact that no comprehensive review of such laws has been done and due to a lack of time, he Committee was not in a position to address the harmonizing of such different prescription periods by means of comprehensive research. Furthermore, because the main object of the Bill is to harmonize, and create uniformity in respect of, the existing laws providing for different notice periods, the Committee is of the view that that Bill is not the appropriate mechanism to deal with the above matter. The Committee therefore recommends that the Minister of Justice and Constitutional Development be requested to request the Chairperson of the South African Law Commission to consider the possibility of including an investigation into the various laws providing the different prescription periods into the Law Commission's programme with the view of harmonizing such provisions.