One cannot study the dynamics between a state and its people without coming across Thomas Hobbes’ famous comparison between a state and a monster (leviathan). Hobbes’ theory of the leviathan is referred to as a monster “composed of men, created under pressure of human needs and dissolved by civil strife due to human passions”.
Irrespective of one’s personal views of politics regarding the most suitable political party to rule within South Africa, most South Africans should be able to recognise that our state or government has powers and benefits to render it stronger and more powerful than the people within South Africa. The very nature of a government is aimed at establishing a body to regulate or control people. The rationale is that a regulatory body is able to regulate only if it has powers to do so. Therefore, the state or government inherently has powers that ordinary South Africans do not have.
The state’s powers are entrenched in many diverging sources; among others in legislation. Of particular interest is the Legal Proceedings Against Certain Organs of State Act 40 of 2002. The said legislation was enacted eight years into our democracy and therefore cannot be considered to be draconian Apartheid legislation. The legislation found its birth long after the enactment of our Final Constitution of 1996 and yet it resonates an outdated philosophy. The said legislation affords the state additional protection when sued by private persons. The said legislation is not even subtle or shy in the protection it creates to protect the state during legal proceedings.
When one institutes proceedings against a private person of juristic person (business) one has to ensure the claim is instituted within the correct time period as prescribed in the Prescription Act 68 of 1969. A monetary claim may usually be instituted within three years from the date of the cause of action (event giving rising to the claim). One also has to ensure that the correct sheriff serves the documents on the correct address. In the case of a private person, the person’s residential or work address are accepted as correct. In the case of a juristic person, the business’ principal place of business or registered address are accepted as correct.
When one institutes proceedings against an organ of state, one has to consider and comply with time periods additional to those set out in the Prescription Act 68 of 1969. According to the Legal Proceedings Against Certain Organs of State Act 40 of 2002, a person has to serve a notice (similar to a letter of demand) on the state within six months of the cause of action. Thereafter, at least 30 days have to lapse before one may proceed in service of the summons.
Further requirements and considerations include having to regard both the address of the particular minister as well as the address of the state attorney in the particular jurisdiction as both these addresses need to be served with both the notice and the summons.
If a minister changes address, for example, it may prove challenging to ensure that both the minister itself as well as the state attorney are served with court papers. In a recent matter handled by our office, the notice was sent to all the available facsimile numbers on the specific state department’s letter heads. All six facsimile numbers failed. Similarly, the contact details for the minister and their representatives are not easily accessible on the internet or anywhere else.
If one cannot serve the said notice within six months of the cause of action, as is often the case as it has been found that the state delays or purposefully stalls disputes, one has to bring an application to court to pray for condonation for late service of the notice before one may proceed with service of the summons. The Legal Proceedings Against Certain Organs of State Act 40 of 2002 requires the said application, which entails additional legal drafting and additional service by the sheriff on both the minister and the state attorney.
The said application for condonation is not required in legal proceedings that do not involve the state. One merely uses legal tools such as a special plea of prescription and a replication thereto when service of a document is late in legal proceedings between private persons or juristic persons.
The said condonation application required by the Legal Proceedings Against Certain Organs of State Act 40 of 2002 is considered to be more technical than an ordinary condonation application as one has to comply with specific averments and requirements.
Between the time periods prescribed in the Legal Proceedings Against Certain Organs of State Act 40 of 2002 and the service on at least two different addresses, one often finds that a claim against the state fails on procedural technicalities. The claimant may not even have the opportunity to have his or her case heard and to have the claim adjudicated on based on the merits as the procedural requirements may cause the claim to fail long before it the matter is ripe for trial.
The said legislation builds in barriers additional to the barriers usually faced in litigation. The additional barriers may flaw and deter an inexperienced attorney.
One may argue it strange and legally unsound for legislation such as the Legal Proceedings Against Certain Organs of State Act 40 of 2002 to exist in a legal dispensation that otherwise attempts to level the unlevelled playing field between role players. The Consumer Protection Act, National Credit Act and Labour Relations Act acknowledge and attempt to level an unlevelled playing field. It may further be argued that no playing field is more unlevelled than that between the state and its people. Yet, the legislation boldly lends the leviathan additional tentacles.