State Your Case – But Not Without Giving Notice: How Act 40 of 2002 Keeps Lawyers on Their Toes

The specific organs of state to whom the Act applies are listed in the Act and include, among others, any national or provincial department and any municipality.

A “debt” in the context of the Act means any debt arising from delictual, contractual or any other liability incurred as a result of an organ of state’s acts or failure to act.

This article aims to explore these requirements and discuss the fatal consequences which non-compliance could have on a party’s claim against the state.

Special requirements when taking legal action against the State

Section 3(2) of the Act provides that when a party intends to take legal action against an organ of state, such a party must inform the relevant organ of state of their intention to do so within 6 months from the date on which the debt became due.

For example, if you are arrested and detained over the weekend for driving under the influence of alcohol, but you were in fact sober, you have 6 months from the date on which you were arrested and released from detention to inform the Department of Police of your intention to institute a claim for unlawful arrest and detention against them.

Such a notice must briefly set out the facts giving rise to your debt, i.e., the date, time and place where you were arrested and the name of the arresting officer (if known to you).

The Act furthermore prescribes the means by which the notice should be delivered, and the relevant incumbent of the organ of state to whom the notice should be addressed.

For example, when pursuing your claim for unlawful arrest and detention against the Department of Police, the Act prescribes that the written notice must be served on the National Commissioner as well as the Provincial Commissioner of Police of the province in which you were arrested, by either delivering it by hand, sending it by certified mail or e-mail, or transmitting it by fax.

Failing to comply with these requirements could have fatal consequences on a party’s claim against the state.

Importance of complying with the requirements of the Act

In the matter of Boshielo and Others v Ekurhuleni Municipality and Others [2024] ZAGPJHC 723, the plaintiffs were almost 2 years late in notifying the state of their intention to institute a claim for their unlawful arrest and detention.

They applied to Court to condone their failure to comply with the Act, to enable them to proceed with their claim. They had to show the Court that they have “good cause”, i.e., that they have a reasonable explanation for their significant delay in notifying the State of their intention to institute a claim, and that they have good prospects of being successful with their claim should their non-compliance be overlooked.

The Court, in essence, found that the plaintiffs did not provide a satisfactory explanation for their failure to comply with the Act, and were as a result precluded from proceeding with their claim for unlawful arrest and detention.

This case serves as a stark reminder of the importance of complying with the requirements of the Act when taking legal action against the State.

The content does not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. Kindly contact us on info@cklaw.co.za or 021 556 9864 to speak to one of our attorneys.