A personal injury claim against the state – regardless of which department is involved – has different rules and limits than a claim against an individual or a company.
Kirstie Haslam, a partner at DSC Attorneys explains the process.
She says that written notification of your intention to lodge a claim must be sent to the state organ in question, such as the Minister of Health in the case of a state hospital or Minister of Police for the police.
The notification must be sent within six months of the incident occuring. Legal proceedings can be instituted 30 days after the notification has been sent.
“If you or your legal representative fails to send this notification and you have a valid reason, you can apply to the court for condonation,” she explains.
“This means you can request permission from the court to continue with the case even though it has officially lapsed,”.
She advises that in such instances, you must have a good reason and that ignorance of the requirement is generally not sufficient.
Prescription period for claims against the state
This is the time limit a claim against the state is subject to.
She says that in general, a claim can be filed within three years of the incident in question.
“Even if you didn’t know about the time limit, your claim may lapse once this period has passed,” she warns.
It should be noted that there are a few circumstances where the prescription period may be extended, including:
- if you are mentally handicapped
- if you are minor (then the prescription period will begin on your 18th birthday and lasts for one year)
- if the damage caused only occurs later, for example the incident results in someone’s death a few months after the incident occurred.
Types of claims against the state
According to Haslam, these are a few of the types of claims one could file against the state:
personal injury claim against Prasa, Metrorail or Department of Transport & Public Works;
medical malpractice against state hospitals; electrocution-related injuries or fatalities against Eskom or other responsible local authority; unlawful assault, police brutality, wrongful arrest or detention against the South African Police Service, or local metropolitan police department
Claims against the state with help of attorney
Because of the time limits imposed on claims against the state, Haslam says that it’s important to get in touch with an attorney as soon as possible after an incident occurs.
“It’s also vital to use the services of attorneys who are experienced in handling state cases, which have unique characteristics and requirements,” she advises.
“They can assess your claim, help prepare supporting evidence and represent you in legal proceedings, giving you the best chance of receiving the compensation you deserve.”