Institution of Legal Proceedings against certain Organs of State Act, 2002 (Act No. 40 of 2002)Part 23. Notice of intended legal proceedings to be given to organ of state |
| (1) | No legal proceedings for the recovery of a debt may be instituted against an organ of state unless— |
| (a) | the creditor has given the organ of state in question notice in writing of his or her or its intention to institute the legal proceedings in question; or |
| (b) | the organ of state in question has consented in writing to the institution of that legal proceedings— |
| (i) | without such notice; or |
| (ii) | upon receipt of a notice which does not comply with all the requirements set out in subsection (2). |
| (2) | A notice must— |
| (a) | within six months from the date on which the debt became due, be served on the organ of state in accordance with section 4(1); and |
| (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. |
| (3) | For purposes of subsection (2)(a)— |
| (a) | a debt may not be regarded as being due until the creditor has knowledge of the identity of the organ of state and of the facts giving rise to the debt, but a creditor must be regarded as having acquired such knowledge as soon as he or she or it could have acquired it by exercising reasonable care, unless the organ of state wilfully prevented him or her or it from acquiring such knowledge; and |
| (b) | a debt referred to in section 2(2)(a), must be regarded as having become due on the fixed date. |
| (4) |
| (a) | If an organ of state relies on a creditor's failure to serve a notice in terms of subsection (2)(a), the creditor may apply to a court having jurisdiction for condonation of such failure. |
| (b) | The court may grant an application referred to in paragraph (a) if it is satisfied that— |
| (i) | the debt has not been extinguished by prescription; |
| (ii) | good cause exists for the failure by the creditor; and |
| (iii) | the organ of state was not unreasonably prejudiced by the failure. |
| (c) | If an application is granted in terms of paragraph (b), the court may grant leave to institute the legal proceedings in question, on such conditions regarding notice to the organ of state as the court may deem appropriate. |