Serving Notice Against the State During Lockdown: The Possible Saving Grace for Claimants Restricted by Pandemic Regulations

The nationwide lockdown caused by the COVID-19 pandemic has had a major effect on people’s daily activities. Under Level 5 (from 26 March to 1 May 2020), people’s movements were greatly restricted, and failure to abide by the government regulations had serious ramifications for offenders. These restrictions, as well as the closure of various institutions during this time, prevented people who had valid claims against the State (for various reasons) from lodging their claims timeously, as provided for by the relevant laws. The consequences of this, at least on face value, is that potential claimants may now be statutorily barred from seeking legal recourse.

Disruption to statutory timeframes and service process under lockdown

The Act regulating legal proceedings against the State requires that Statutory Notice is served on the relevant State entity within six months from the date on which the debt became due. During lockdown, potential claimants who had valid claims from 28 October 2019 onwards could not utilise the full period of six months within which they could have provided Notice.

Every year, various State organs and departments are sued for many different reasons, such as claims against local municipalities, the Health Department, the Minister of Police, Correctional Services, and the Department of Education and so on. During Level 5 of the lockdown, there would have been many potential claimants who could not immediately serve the necessary Notice on the State due to the strict restrictions. Because of this, it is likely that thousands of potential claimants, who are unsure of the legal timeframes within which they need to institute their claims, feel as though it is too late to take legal action. But there are options for people in this position to review.

Section 3(4) of The Institution of Legal Proceedings Against Certain Organs of State Act

Our starting point is the Constitution of the Republic of South Africa, 1996. Section 34 of the Constitution states that “everyone has the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court or, where appropriate, another independent or impartial tribunal or forum”. From the reading of this Section, it will take compelling reasons to deny any potential claimants access to courts and having their cases heard. This is despite the laws regulating the relevant timeframes.

The Institution of Legal Proceedings Against Certain Organs of State Act (“the Act”) regulates the institution of claims against the State. Briefly, this Act purports to regulate prescription periods and requirements and service of Section 3 Notice on the State. Section 3 of the Act states that “a notice must, within six months from the date on which the debt became due, be served on the organ of State.” The said provision further requires that a notice must briefly set out the facts giving rise to the debt and such facts of such debts that are within the knowledge of the creditor (in this case, claimant). Furthermore, Section 3(4) provides that if the State argues that the claimant failed to comply with the statutory timeframes, the claimant may apply to a court for condonation of such failure. The court may (this implies that the court has a discretion) grant condonation if it is satisfied that:

  • The debt has not been extinguished by prescription;
  • Good cause exists for failure by the creditor; and
  • The organ of state was not unreasonably prejudiced by the failure.

Section 3(4) therefore may be a saving grace for thousands of potential claimants who, but for the hard lockdown, could not serve the prescribed Notice.

How claimants should proceed with condonation applications

Whilst this gives hope to claimants, it is crucial to note that not every condonation application will succeed. The claimant will have to satisfy all three requirements as provided for by Section 3(4) of the Act. In this regard, it is important to observe that the State almost always raises a Special Plea of late service of the Notice. If this Special Plea succeeds, the claim is ‘thrown out’ and the potential claimant will be left with no recourse – the merits of the case will not be entertained at all.

That being said, our courts are ordinarily inclined to grant condonation applications in order to serve justice in line with the spirit, purpose and objectives of the Constitution. Obviously, having a specialist lawyer greatly enhances a claimant’s chances of success. Importantly, claimants must keep a detailed chain of events together with their timelines. This helps in trying to establish good cause for failure to lodge timeously and to demonstrate that failure did not unreasonably prejudice the State. The usefulness of a detailed record of events is evident in the matter of Marumo v Minister of Police. In this case, a cause of action arose on 3 March 2010, but the Section 3 Notice was only served on 1 February 2011 (almost a year later). Due to the fact that the claimant had her records in order, the application was granted, accordingly.

The lockdown might have interrupted thousands of potential claims, but claimants should not assume that it is too late to institute their claims against the State, particularly where failure to do so timeously was not of their own fault. Although the Notice must be given within six months, the Act is flexible and allows condonation of late service – so long as the statutory requirements for same are satisfied. In light of this, potential claimants should seek proper legal advice before deciding whether or not they should pursue their claims.

Mthokozisi Maphumulo
Mtho Maphumulo
Associate | Litigation Attorney