Personal injury claims against organs of state don’t follow the same processes as those against private companies or individuals.
For example, special rules apply for claims against state-owned enterprises like the Passenger Rail Agency of South Africa (PRASA) – which owns Metrorail; government hospitals; or the South African Police Service (SAPS).
There are three key points it’s vital to consider.
1. Notify the organ of state of your intention to sue
Written notice of the intention to institute a personal injury claim against a specific government body must be given within six months of the incident that caused the injury.
Notice must be delivered to the relevant authority. For a claim against the police, for example, notice must be given to the Minister of Police. The notice can be delivered by hand, email or fax.
Legal proceedings may be started – typically, through delivery of a summons – only 30 days after the notice has been delivered.
If a claimant has good reason for not giving the relevant government body notice within the required six months, it’s possible to apply to the court for condonation. If this is granted, the claim process may continue.
However, bear in mind that ignorance of the prescription period isn’t generally considered reason enough for condonation.
2. Be aware of the prescription period
A time limit, known as a prescription period, applies for claims against the state. If a claim isn’t lodged within this period, it lapses.
For a personal injury claim against the state, the prescription period is generally three years from when the incident causing the injury occurred.
The prescription period may be extended in certain circumstances:
- if the claimant is a minor
- if the claimant is mentally handicapped
- if the claimant is under curatorship
- if the harm caused occurs only later – for example, if an accident causes someone’s death a few months after the incident occurred.
Because a prescription period applies, it’s advisable to contact an attorney as soon as possible after an incident occurs.
3. Use the services of an experienced attorney
Suing an organ of state involves taking on a powerful authority – in most cases, one that’s accustomed to receiving and defending itself against claims.
For example, a single state hospital in South Africa might receive dozens of medical negligence claims per year.
From the start of 2017 up to March 2018, the Gauteng Health Department paid out R521 million to 138 claimants – and an additional 1,597 claims are still pending. That’s in Gauteng alone.
Similarly, state enterprises like PRASA and Metrorail, as well as the SAPS, routinely receive claims. This means they’re experienced in defending themselves and have on-going access to legal resources.
For this reason, and because claims against the state are complex and subject to unique requirements, it’s imperative to use the services of a suitably qualified attorney.
An attorney experienced in handling claims against the state will know and be able to comply with required processes, and be familiar with precedents set by other claims. This attorney can advise on the value of a claim, help compile evidence – including expert medical opinions – and provide expert representation of a claimant’s interests.