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Institution of Legal Proceedings against certain Organs of State Act, 2002 (Act No. 40 of 2002)

1. Definitions

 

(1) In this Act, unless the context indicates otherwise—

 

"creditor"

means a person who intends to institute legal proceedings against an organ of state for the recovery of a debt or who has instituted such proceedings, and includes such person's tutor or curator if such person is a minor or mentally ill or under curatorship, as the case may be;

 

"Constitution"

means the Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996);

 

"debt"

means any debt arising from any cause of action—

(a) which arises from delictual, contractual or any other liability, including a cause of action which relates to or arises from any—
(i) act performed under or in terms of any law; or
(ii) omission to do anything which should have been done under or in terms of any law; and
(b) for which an organ of state is liable for payment of damages,

whether such debt became due before or after the fixed date;

 

"fixed date"

means the date of commencement of this Act;

 

"national department"

means—

(a) a department mentioned in the first column of Schedule 1 to the Public Service Act, 1994 (Proclamation No. 103 of 1994), but excludes a provincial administration; or
(b) an organisational component mentioned in the first column of Schedule 3 to that Act;

 

"notice"

means a notice contemplated in section 3(1)(a);

 

"organ of state"

means—

(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 (Act No. 5 of 1998);
(e) The South African National Roads Agency Limited contemplated in section 3 of The South African National Roads Agency Limited and National Roads Act, 1998 (Act No. 7 of 1998);
(f) 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;

[Definition amended by section 88 of Act No. 12 of 2005]

 

"provincial department"

means—

(a) a provincial administration mentioned in the first column of Schedule 1 to the Public Service Act, 1994 (Proclamation No. 103 of 1994); or
(b) a department within a provincial administration and mentioned in the first column of Schedule 2 to that Act.

 

(2) This Act does not apply to any debt—
(a) which has been extinguished by prescription before the fixed date; or
(b) which has not been extinguished by prescription before the fixed date and in respect of which any legal proceedings were instituted before the fixed date.

 

(3) Any legal proceedings referred to in subsection (2)(b) must be continued and concluded as if this Act had not been passed.

 

(4) For purposes of this Act, legal proceedings are instituted by service of any process, excluding a notice, on an organ of state in which a creditor claims payment of a debt.