Legal proceedings against a government department
- Institution of Legal Proceedings against Certain Organs of State Act 40 of 2002:
It frequently occurs that individuals or entities suffer damages as a result of the negligence of a state entity and/or its representatives. For example, when a local municipality fails to pay a person or entity for services provided then such a person or entity would be entitled to claim damages from the said organ of state.
When considering whether to institute a claim against an organ of state, it is important to take notice of the provisions of The Institution of Legal Proceedings against Certain Organs of State Act, act 40 of 2002 (hereinafter referred to as “the Act”). Section 3(1) of the Act states inter alia that no legal proceedings for the recovery of a debt may be instituted against an organ of state unless the creditor has given the organ of state in question notice in writing of his/her/its intention to institute the legal proceedings in question.
The effect of section 3 is that a party is not entitled to claim damages from a state organ as contemplated in the Act without giving prior notice of his/her/its intention to do so. The aim of the Act is to ensure that state organs, known to be big with immense workloads and administration, have adequate time to investigate claims instituted against them.