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

Preamble

 

RECOGNISING THAT certain provisions of existing laws provide for—

* different notice periods for the institution of legal proceedings against certain organs of state in respect of the recovery of debts;
* different periods of prescription in respect of such debts;

 

AND RECOGNISING THAT—

* the Prescription Act, 1969 (Act No. 68 of 1969), being the cornerstone of the laws regulating the extinction of debts by prescription, consolidated and amended the laws relating to prescription;
* some of the provisions of existing laws which provide for different periods of prescription in respect of certain debts are inconsistent with the periods of prescription prescribed by the Prescription Act, 1969;

 

AND BEARING IN MIND THAT—

* South Africa has moved from a parliamentary sovereign state to a democratic constitutional sovereign state;
* the Bill of Rights is the cornerstone of democracy in South Africa and that the State must respect, protect, promote and fulfil the rights in the Bill of Rights,
* section 34 of the Constitution provides 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 and impartial tribunal or forum;
* the right of access to courts may be limited to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom as contemplated in section 36 of the Constitution;

 

AND RECOGNISING the need to harmonise and create uniformity in respect of the provisions of existing laws which provide for—

* different notice periods for the institution of legal proceedings against certain organs of state for the recovery of a debt, by substituting those notice periods with a uniform notice period which will apply in respect of the institution of legal proceedings against certain organs of state for the recovery of a debt;
* different periods of prescription, by making the provisions of Chapter III of the Prescription Act, 1969, applicable to all debts;

 

AND RECOGNISING the need to provide for transitional arrangements to ensure a smooth transition between the various existing statutory provisions regulating notice periods for the institution of legal proceedings against certain organs of state in respect of the recovery of debts and the periods of prescription of such debts, and the provisions of this Act;

 

AND BEARING IN MIND the limited need, for legal or practical purposes, to retain certain provisions of existing laws which provide for—

* notice periods that differ from the envisaged uniform notice period;
* periods of prescription that differ from the periods of prescription prescribed by Chapter III of the Prescription Act, 1969,

 

BE IT THEREFORE ENACTED by the Parliament of the Republic of South Africa, as follows:—