In October 2025, the Supreme Court of Appeal held that a claim against an organ of government for reimbursement under the legal principle of unauthorised administration by one person on behalf of another (negotiorum gestio) does not qualify as a “debt” under the Institution of Legal Proceedings against certain Organs of State Act of 2002.
After several years of neglect, the claimant, a mining logistics company, repaired a provincial road in the Free State without the knowledge or consent of the provincial department of roads responsible for the repair and maintenance of roads in the province. The claimant sought an amount R234,594.65 from the organ of state based on the expenses allegedly incurred when effecting the repairs. The claim was based on negotiorum gestio.
Negotiorum gestioentails the voluntary management of the affairs of another without agreement or the knowledge of the person whose affairs are managed (the dominus). The manager (the gestor) must intend to manage the affairs in a way that is beneficial to the dominus. Negotiorum gestio does not require consensus between the parties for reciprocal rights and obligations to exist.
The roads department argued that the claim was a “debt” that should have been preceded by a notice under section 3(1)(a) of the Act, which requires prior written notice before instituting legal proceedings against an organ of state if the claim is for the recovery of a debt.
The court held that the definition of “debt” in the Act is limited to claims for damages. Although “debt” is introduced broadly, the definition is qualified by the requirement that the organ of state be liable “for payment of damages”. Interpreting “damages” to include every monetary remedy would ignore this qualification and the purpose of the Act, which is to afford organs of state an opportunity to investigate claims before becoming embroiled in litigation at public expense.
A claim under negotiorum gestio is not a claim for damages because it is a quasi-contractual claim for reimbursement. The reimbursement of expenses reasonably incurred is not akin to damages. The court emphasised that the Act’s language must be interpreted narrowly and that not all monetary claims fall within the definition of “debt.
The narrow interpretation recognises damages as a legal concept that refers to a specific type of remedy arising from particular causes of action, of which contract and delict are the paradigm cases. It is not without significance that these two types of liability are specifically mentioned in the definition of “debt” in section 1.
While the State has legitimate interests in being notified of potential litigation, the SCA found that the legislature deliberately excluded non-damages claims from the notice requirement. A claim for payment for unauthorised administration costs is not a claim for damages.
The court did not deal with the issue whether the claim fell within the requirements for a negotiorum gestio action nor whether such a claim is competent against the government in these circumstances.