Before the election the ANC promised the electorate that it would not use its electoral majority to diminish the power of our courts or take away our rights. I believed the party because it has not used its two-thirds majority before to attack the very foundation of our constitutional state. Well, the joke is on me, because it turns out the ANC was lying through its teeth when it made this promise.
Last week the Department of Justice and Constitutional Development published the Constitution Eighteenth Amendment Bill for comment. And what a witches’ brew it turns out to be. If passed, this amendment will substantially erode the supremacy of our Constitution and will limit the right to equality and the right of access to court guaranteed in sections 9 and 34 of the Constitution, read with section 165(4) which states that:
Organs of state, through legislative and other measures, must assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of the courts.
The proposed amendment attempts to undo the Constitutional Court judgment in Nyathi v Member of Executive Council for Department of Health, Gauteng in which the Constitutional Court declared invalid section 3 of the State Liability Act. This section precluded attachment of the assets of the State to satisfy a debt – even where the state owed money to a litigant, all other legal avenues have been exhausted and the state still failed to pay up.
Mr Nyathi is a poor South African who suffered terribly because of the negligence of doctors at a state hospital. Because of the negligence he had a stroke and required full-time care and medical treatment and he had no money to pay for this. Despite valiant efforts by his lawyers, the state never paid him a cent.
Writing for the majority Madala J called the state liability act “a relic of a legal regime which… placed the state above the law: a state that operated from the premise that ‘the king can do no wrong’”. The section failed to treat litigants as equal before the law and was therefore invalid. The Court gave Parliament 12 months to allow it to pass legislation that povides for the effective enforcement of court orders.
After some scandalous foot dragging, the state eventually responded with this proposed Constitutional amendment which states that “despite any other provision of the Constitution” an Act of Parliament must prescribe reasonable procedures for litigating against the state and enforcing court orders. But section 7 of the proposed new legislation that purports to give effect to the judgment repeats verbatim the section of the State Liability Act that was declared invalid by the Constitutional Court.
This means the proposed Constitutional Amendment will oust the jurisdiction of the courts to inquire into the constitutionality of the proposed legislation (and particularly the new provision set out in section 7 of the Bill). If passed, it will substantially erode one of the founding values of our Constitution, namely the “supremacy of the constitution and the rule of law”. The Constitution will not be supreme anymore as the Courts will not be able to declare invalid an Act of Parliament dealing with state liability and Parliament will, in effect, be have supremacy over the Constitution in this matter.
This amendment thus attempts to place the state above the law and the Constitution. It demonstrates a shocking lack of respect for a judgment of the Constitutional Court and for the independent and impartial judiciary and sends a signal that the ANC government will amend the Constitution if it does not like a judgment of the highest court.
So what next? Will the ANC-led government now attempt to remove the provisions in the Constitution that subject the President to the Rule of Law? Hey, who needs to follow the law or the Constitution if you were elected by 2400 delegates at Polokwane? What about the right not to be arbitrary evicted from your home without an order of court? After all, those pesky poor people continue to challenge arbitrary evictions by our heartless and anti-poor government.
This is an extremely worrying and dangerous development. One cannot have a supreme Constitution if the governing party changes the Constitution willy-nilly to overturn decisions of our highest court.
The Constitutional Court stated in the UDM case that once a constitutional amendment has been passed in the prescribed manner, it cannot be tested against other sections of the Constitution. But because this proposed constitutional amendment will erode the supremacy of the Constitution and would thus, in effect, be amending section 1 of the Constitution, Parliament would have to pass this Bill with a 75% majority as required by section 74(1) of the Constitution.
The ANC would probably not be able to muster this 75% majority – even with the help of some of the Micky Mouse parties in Parliament – and the amendment will therefore be open to challenge. One hopes that if the amendment is declared invalid the ANC and the government it leads (for the time being) will not make all kinds of irresponsible statements.
If they do, one should remind them that it was the ANC and Jacob Zuma who insisted that the right of access to court (for Zuma) was a fundamental right of immense importance. It is therefore ironic that this same ANC now wants to remove this right for poor people who really need it. So much for the pro-poor policies of the governing party. This amendment says that if you are rich, drive a Merc, and belongs to the leadership of the governing party, you must have all your rights protected. But if one is poor and has the cheek to take the state to court, well, stuff you.
The fact that the ANC lied to us before the election about not wanting to amend the Constitution, makes me wonder: what else did it lie about?
Prof.,
You never cease to amaze me. I am surprised that you are surprised about the conduct of the majority party. The ANC government has been eroding our democracy bit by bit and making way for the rule of the elites in South Africa. This started way back with President Mbeki and his “IDC” attitude for poor people and those suffering under the HIV/AIDS.
We should really stop regarding outbursts of Malema, Vavi, now Ramatlodi, etc. for granted when they talk about chop and changing our democratic state. This is indeed the tip of the iceberg that MAY sink the Titanic (South Africa, my beautiful country, oh how much I love her with all her children, black and/or white)
Prof,
I thought the ANC and the government were two different entities, as you always so usefully remind us every now and then.
Politicalyincorrect, yes, that is why I refer to “the ANC government”.
And now the Minister has engineered a postponement of the JSC hearings because he wants to look into the independence of the judiciary. The darkness is closing in fast.
Cosatu controlled, ANC led government
“What else did it lie about?”
In short: everything. The ANC is not to be trusted, ever. They lie, always.
Prof, what I do find perplexing, is that you are somehow surprised about this.
The writing was on the wall at the ANC’s Mafikeng conference… Since then they have neutered parliament and almost all the Chapter 9 institutions and not stopped for breath.
It seems they are yearning for the old days, looking at the National Party government with all its power and a supreme parliament with envy. I bet they wish they never wrote that pesky annoying constitution with all its protection for human rights.
Pierre, I sympathise with you on the merits, but your suggestion that the proposed amendment would erode the supremacy of the Constitution makes little sense to me. You are, it seems clear, an incorrigable countermajoritarian.
The document itself provides a procedures whereby the Constitution can be amended, What complaint can you have if the proper procedures – including, if necessary, a 75% majority — are faithfully followed? Are you suggesting that the Constitution must remain forever cast in stone? Or that it may only be amended though interpretation, by the CC, and never, using the prescribed procedures, by the democratically accountable arm of government? Or are amendments only to be permitted only re purely technical subjects, that do not engage the underlying values?
You may wish to argue that there is such a thing as an unconstitutional constitutional amendment – following German and Indian thought, a jurisprudence flirted with by Mahomed DP in the 1990’s.
But that is, I think, a dubious notion. It is precisely to deal with amendments that radically alter the text and affect fundamental values that the 75% majority is provided for. Besides, even if one accepts the doctrine, the contemplated limitation of state liability is hardly so far-reaching as to undermine the very foundations of the constitutional order.
Slowly, but surely the JSC gets exposed as a lackey of Luthuli House – under chairmanship of the Chief Justice.
How diabolical it is, is shown by the deceitful reasons offered for the postponement.
I hope you watch them carefully this time, proffie.
well heres the bill
http://www.doj.gov.za/legislation/invitations/20090601_GGNo32289.pdf
it would appear to me your country wants t go backwords and make parliament a sovereignty, this amendment if passed the Constitution is no longer supreme.
This is a blatunt attack on section 1 of the Constitution
The Republic of South Africa will be one, sovereign, democratic state founded on the following values:
human dignity, equality, advancement of human rights and freedoms
non-racialism and non-sexism
the Constitution will be supreme
the rule of law will be supreme
all adults will be able to vote
there will be a common voter’s roll
there will be regular elections
there will be a multi-party system of democratic government to make sure there is accountability and openness
This bill simply is a joke
Michael, I assume you are trying to provoke me so here goes: the amendment states clearly that as far as a specific piece of legislation is concerned, the Constitution will NOT be supreme as the legislation will not be testable against the Constitution. That erodes the supremacy of the Constitution as it removes the power of the court to declare a piece of legislation invalid. If one removes the power of courts to test legislation – and thus the supremacy of the Constitution – we are back at Parliamentary sovereignty. As an ethical, political and practical matter, this seems ominous to me. Of course a 75% percent majority can change the Constitution as it sees fit, but I would argue that changes that affect the very nature of our constitutional system and tampers with the supremacy of the Constitution are immoral and politically dangerous. Then 51% of the population (or more likely 2001 people at an ANC conference or 80 people on the NEC of a governing party ) can decide to chop off your head because you wear glasses, allow young men to rape and kill all homosexuals, allow policeman to shoot and torture anyone they do not like or ethnically cleanse all foreigners, throw all poor people who voted for the opposition out of their shacks, round them up and gas them. I think this would be a bad thing. Just because the majority (or the Leader) may think it is cool, does not make it ethically acceptable. That is why we have checks and balances in our Constitution that stands and falls with the supremacy of the Constitution to temper possible excesses of the majority (or the excesses of the political elite who might get elected). You seem to suggest that as long as an appropriate majority can be mustered in Parliament, any amendment will be fine – as a matter of ethics, politics and practice. I do not.
Michael Osborne // Jun 9, 2009 at 1:27 am
I concur
One more thing Michael, as the majority said in Nyathi, the State liability act places the state above the law. You may think this is no biggy. To me it seems rather scary. Do you really want a state that places itself above the law? We had that in the 80’s and many people got killed and tortured by the state as a result.
These are sad developments, if indeed PdVs analysis is correct.
I note that some contributors believe that the ANC is dishonest, an assertion with which I disagree. I doubt that any politician or activist sets out with malevolent intentions. The ANC is not per se dishonest and its members are not per se dishonest. As a former active and loyal member, I came to realize that part of the problems that bedeviled the ANC was an increasing culture of expediency. Therefore factual situations would confront the organization and rather than consider the matter based on policies, expedient decisions would be made through casuistic reasoning. Therefore, in the case of the proposed amendment, we have a problem of state liability and rather than consider founding principle of constitutional supremacy and the best means of promoting this principle, the ANC will rather expediently address the onerous implications of greater state liability by removing an important pillar of justiciability, be damned the consequences! This within the context of a bungling and overstretched state, whose scope of operations the ANC seeks to expand a great deal more, without any significant corresponding increase in the protections reasonably needed by persons.
I am personally quite fearful at the course that we are following. I personally am quite despondent at the lack of vocal engagement in regard to matters pertaining to the rule of law and defence of the constitution from members of the legal fraternity, both within the ANC and without as well as amongst black practitioners. Dependence on the state largesse for material comfort has really denuded our black practitioners, regardless of their political orientation, from being able to vocally engage government and the ANC when it falters, We are really not following the example of legal minds such as Duma Nokwe and others.
Michael Osborne // Jun 9, 2009 at 1:27 am
Besides, even if one accepts the doctrine, the contemplated limitation of state liability is hardly so far-reaching as to undermine the very foundations of the constitutional order.
Oh really not far reaching because this amandment means the Bill of Rights would not apply to the State Liability Act and you say not far reaching?
it is the first bill that is waiting to be passed by your government ever since the down of democracy that has attacked fundamental values.
Mzo // Jun 9, 2009 at 8:53 am
and you concur?
Some sort of restraint on the capacity of powerful financial interests to attack the state through the courts is, of course, desirable. Indeed, this relates to the whole issue of frivolous lawsuits raised in some of the comments on the previous post.
However, it does appear that while a constitutional amendment is necessary, this one is extremely problematic in form, and therefore should be rejected by Parliament.
It would probably be a good idea to lobby parties in this respect; if CoPe can be persuaded to reject the Bill, since the DA willl undoubtedly reject it in any case, the Bill will probably not pass the 75% requirement.
It is, however, a moot point whether this is a sinister conspiracy or just laziness and incompetence on the Department of Justice’s part.
Vuyo // Jun 9, 2009 at 9:10 am
“The ANC is not per se dishonest and its members are not per se dishonest”
There are many ANC members that has good intentions. But the ANC culture of entitlement, arrogance and race obsessed targets has made the honourable members of the ANC a mere afterthought.
The arrogance of the ANC is to blame for this bill, their thought being that an ANC government cannot be wrong, thus it needs to be above the law.
The Creator and Vuyo, you make good points. It might well be that the officials tasked with dealing with the judgment just looked for the easiest way out, so viola!, constitutional amendment. If that is the case then we will be able to engage in a constructive discussion with the government and governing party to explain why the Bill as it stands is not a good thing for the ANC, the government or South Africa.
Prof – About what the CC said in the UDM matter -In Premier of KwaZulu-Natal v President of the Republic of South Africa 1996 (1) SA 984 (CC) the CC said:
“It may perhaps be that a purported amendment to the Constitution, following the normal procedures prescribed by the Constitution, but radically and fundamentally restructuring and re-organising the fundamental premises of the Constitution, might not qualify as an ‘amendment’ at all.”
However – that was still a ’strong’ Constitutional Court, that earned the respect of society and the government, and could reckon on the support of government, which in latter years, as we have seen, is no longer the case. We will therefore have to wait and see who the President appoints to the CC later this year; and whether the new ‘Leftist ANC government’ uses its majority to pass bills that may not pass ‘normal’ constitutional muster, but may slip past a CC that is bent on toeing the line of government.
Times are becoming scary.
I do not consider the alteration of the Constitution in response to a Court judgment always to be a travesty. I submit that it can happen that a court overreaches itself and interprets the Constitution in a manner not originally anticipated by the Parliament that passed the Constitution.
What is wrong in this instance is the idea of creating a piece of legislation that is not subject to the whole Constitution. This creates a bad precedent, but it renders the Constitution self-contradictory – requiring more changes.
Pierre,
While I agree that it is extremely dangerous and worrying if the Bill in fact does what you say it does, i am not sure that is the case. I think its effect is somewhat more limited and there is an alternative interpretation which would alleviate most of your concerns.
Firstly, it does not simply re-enact the provisions of the 1957 Act. It starts with the same general principle that court orders cannot be enforced by attachment, but it then provides a detailed procedure for judgment creditors, such as Mr Nyathi, to get the money. There are checks between the organ involved and National or Provincial Treasury and if the State fails to pay the Court can step in and order contempt of court against the officials who failed to cough up. While it still treats the State differently, i am not sure that the new Bill would fall afoul of s 9(1) or s 34.
Secondly, i am not sure the phrase “despite any other provision of the Constitution, an Act of Parliament must prescribe” actually ousts the jurisdiction of courts. This may seem far-fetched, so stay with me. We must start from the principle that when interpreting the Constitution as a whole, we must interpret a section not to oust the jurisdiction of the courts if that interpretation is plausible. Further, there is no suggestion in the accompanying memo to the bill that it is intended to oust jurisdiction. So if we can come up with a plausible alternative meaning, we should adopt it. Before i propose an alternative meaning, let me make a third point.
Thirdly, even if i am wrong in the previous argument the new State Liability Bill is not completely immunized from judicial review: it must still meet the requirements laid down in the proposed constitutional amendment including “measures for enforcing the execution of final court orders against the state, including payments to be made by the state to comply with final court orders”. While the principle of ousting the jurisdiction of the courts is still worrying, the practical effect is limited by this section which can be read to require pretty much the same as what the Nyathi Court said the Bill of Rights required.
And this is where an alternative meaning of the “despite” phrase comes in. It can be read to impose an OBLIGATION on Parliament to enact legislation that meets the three requirements even though no other section in the Constitution does so. That seems to me a reasonable reading. It is true that it would have the same meaning without the phrase, but given the strong reasons to interpret it against ousting judicial review, and the absence of any suggestion that that is its purpose, i think my interpretation is plausible.
What does everybody think? Maybe i am being overly charitable to the ANC-led Government…
Pierre, you do your argument no favour with breathless hyperbole. Yes, as a matter of policy, the amendment may be unfortunate, bad, ill-advised, even immoral. (Pick your epithet.) But to say that it fundamentally subverts the constitutional order goes too far.
Have you read the dissenting judgment, of Nkabinde J, joined by Langa CJ and Mpati AJ? Have you considered, as they do, the practical consequences, in terms of service delivery that may flow if government assets are subject to attachment? Or whether, as they argue, mandamus may be an adequate substitute for attachment?
Again, this is not to say that Nkabinde minority is right. On balance, we may all agree that the majority has the better of the argument.. The problem with your position is that you suggest that Nkabinde J et al are utterly, uncontrovertibly wrong – that they are so far off the mark that no reasonable arguments can possibly made in support thereof.
Also, please note that many foreign jurisdictions limit state liability more radically than does the Bill. For example, 28 U.S.C. provides that the government is not liable at all when any of its agents commits assault, battery, false imprisonment or false arrest. Most other foreign jurisdictions also limit state liability in one way or another
.
Again, this does not mean that limitations on state liability are desirable. But it is very difficult to argue that such limitations are just “off the map,” as you would have it, when they are commonplace in other free, open and democratic societies. (The same held true when the UDM in 2002 attempted to argue that permitting floor crossing effectively destroyed representative democracy.)
Finally, and with respect, it is rather naughty of you to raise in this context the possibility that a constitutional amendment could permit people to be “rounded up and gassed.” “Reductio ad Hitlerium” is so frequently the first sign of gross rhetorical overreach.
Michael, it seems to me important to separate two distinct debates. One, whether debts against the state should be enforceable by attaching and selling state assets? Two, whether an Act should be passed in a way that insulates it from constitutional review? The first point is clearly reasonably debatable, as the divided judgment in Nyathi and international experience shows. But, on the latter point, Pierre is surely right to decry any attempt by the government to insulate an Act from Bill of Rights scrutiny. The departure from constitutional supremacy is symbolic and may tend to suggest that placing other Acts beyond constitutional scrutiny is okay – which is surely not cool. Yes, constitutional amendments are lawfully possibly, and necessarily so, but the amendment in question is dangerous. On a close reading of Nyathi, it’s also arguably unnecessary – but that’s a different, technical debate.
Chris McDaniel, you join Pierre in rhetorical overreach. Having been personally involved in some of the litigation, I can assure you that more than one amendment since the dawn of democracy has been fiercely – and with more reason – been argued by its opponents to signal the end of the Constitution.
The Constitution itself is already rife with provisions arguably subvert fundamental values.” For example: Allowing the prohibition of hate speech is, in the eyes of many, a gross intrusion upon free expression. But the constitution makers, rightly or wrongly, deemed to costs of hate speech is SA conditions to be so high as to allow that value to be subordinated. Same goes for the express allowance for affirmative action in s. 9. (Pierre’s favourite). Same goes for the tolerance of gross inequality permitted by the “internal limitations” of the socio-economic rights clauses …
Michael, the examples you provide of existing tensions between constitutional provisions are not nearly analogous to placing an Act beyond Bill of Rights scrutiny. Your examples concern attempts to balance competing substantive concerns: free speach and protecting against harmful speech; state duties to provide socio-economic benefit with limited financial resources; etc. The debate at hand concerns whether an Act should be shielded from Bill of Rights scrutiny. You haven’t defended that proposition. Perhaps you are in favour of general Parliamentary sovereignty and feel this will be a step in the right direction? That at least is an arguable position to take (although Pierre would probably disagree).
Yet,s urely it is worrying (to say the least) that such a step is proposed by the government in such an effectively clandestine manner. Surely something as fundamental as this – and it is fundamental – should be transparently debated. My opinion, for what it is worth, is that derogations from constitutional supremacy, slight or drastic, will not in the long run be for the common good.
Alistair, your distinction is well taken. My objection was to Pierre’s argument on the merits – viz., the disagreement between Mdala J and Nkabinde J. That was, so I understood, the major thrust of Pierre’s attack on the draft amendment.
As for the manner in which the amendment is written, I am with you. But suppose we agree that (i) as a matter of policy, partial state immunity is desirable; (ii) such would not constitute an unjustifiable s.36 limitation on equality, access to courts etc.. The difficult question is how one then drafts the amendments. It is lazy draftsmanship to use the “notwithstanding anything …” ” language, instead of precisely (and laboriously), delineating a partial immunity from proc ess . It would be interesting to see how other constitutional democracies have dealt with the problem.
In the U.S., there have been various proposals to “overturn” SC decisions that Congress does not like by way of ouster provisions. These too are, though, very problematic; I am not sure than any such proposed amendments have managed to garner the two thirds majority needed.
Alistair, you have said, eloquently, what I would have said with a bit more hysteria. Michael, I thought my post made it clear that my main objection was against the ouster of the CC jurisdiction. There are different ways to deal with state liability – I concede that – but immunizing legislation from constitutional review is about the worst possible way.
Mickey B, interesting analysis. My question would be: why then add the problematic words if they would not mean anything? Maybe drafters were lazy, maybe they were animated by more sinister motives.
Michael Osborne // Jun 9, 2009 at 10:58 am
Useless thunderbolts:
lets have a look…there have been over +/- 200 cases were government failed to comply with court orders.
This flys in face of equality before the law, when lets say you and me fail to pay when ordered to by a court, well the court may have our property seized but not the state?
since when is the state above the people?
The draft State Liability and Constitution 18th Amendment bills have been published to address Nyathi’s case which a court already ruled that Section 3 of the SLA, is an issue that impacts upon the rights of
citizens, the role of courts, as well as public money and public assets, all of which are concerns for the general public in everyday life and that the state is not above the law. How can it be?
and this is what these drafts represent which still doesnt address the problem of why government can get away with not complying to court orders. Instead of trying to fix the problem you change it and still exclude the attachment of state property.
This is the other problem “an act of Parliament must provide for how litigation against the state would be conducted and enforce court orders.”
this shield legislation from judicial review.
Parliamentary sovereignty:
Under parliamentary sovereignty, a legislative body has absolute sovereignty, meaning it is supreme to all other government institutions (including any executive or judicial bodies as they may exist). Furthermore, it implies that the legislative body may change or repeal any prior legislative acts. Parliamentary sovereignty contrasts with notions of judicial review, where a court may overturn legislation deemed unconstitutional.
case in point the two drafts the court deemed them unconstitutional but yet parliament is thinking otherwise and not addressing the problem.
very nice story about hate speach but you missed my point this is the first time that the government has sought to amend the Bill of Rights. its not on dude thats something that comes direct from God and is set in stone.
Michael Osborne
On the international front its a bit difficult to use the US as an example.
Look up
UK, Germany, Austria, France, Australia, and Belgium
there have been legal and judicial developments toward greater accountability of
the state as regards liability
On a different note, just received communiqué that Prof has been appointed as the new Chair of Constitutional Governance at UCT – Congrats Prof!!
:)
Pierre, I read you as attacking both the manner in which the bill is drafted and the merits – it is a (substantive) equality argument to allege that partial immunity from attachment puts the state “above the law.”
Can I take it then that you agree with Alistair and myself that the Nkabinde minority position endorses, at least arguably, a permissible s. 36 limitation, and not necessarily a gross subversion of the Constitution?
Also, you are wrong in characterising the amendment as an ouster clause. An ouster clause removes the jurisdiction of a Court. This amendment does not do so. Rather, it alters the substantive law that the Court would apply once it assumed jurisdiction
Mickey B, while it would be great if the CC interpreted the ‘despite…’ clause in the way you suggest, the cost would be that we now sometimes have to treat phrases in our Constitution as, literally, meaningless. On your analysis, I suppose this sacrifice in Rule of Law values (certainty, predictability etc) is outweighed by the countervailing substantive benefit of upholding Bill of Rights supremacy – and I’d agree. But surely the first prize is for the phrase to be removed altogether.
Come to think of it Prof, you and Mr Ngubeni will now be colleagues….interesting indeed!!
Michael Osborne // Jun 9, 2009 at 1:00 pm
s.36 limitation wouldnt apply to State Liability because its shielded from Bill of Rights….so how would it apply? that in itself is a gross subversion of the Constitution.
Michael Osborne
“is a (substantive) equality argument to allege that partial immunity from attachment puts the state “above the law.”
the fact is you still asking for sovereign immunity which places the state above the law.
No one is really addressing the questions here. if the package of the 2 drafts come in to play.
1) how is this consistant with the constitution?
2) how does this resulted in the actual payment of a judgment against the state?
3) how does this address government to actually respond to court orders?
Chris McDaniel:
1. Take a look at CC judgments over the past decade. You will note that the U.S. is quite frequently invoked under s. 36. There is nothing odd about SA courts looking to US law when considering s. 36 questions.
2. As for Europe, take a look at “European Court Practice Concerning State Immunity from Enforcement Measures,” The European Journal of International Law Vol. 17 no.4 © EJIL 2006; you will see that limitations on attachment of state property remain commonplace in Europe.
3. Please understand: that does not mean I think that such limits are desirable or morally correct. Just that they cannot sensibly be said to be antithetical to constitutional democracy.
Re Pierre’s appontment:
My first response is perplexed horror (which I am sure Pierre will share), that yet another white male has been appointed to a faculty that is already grossly racially unrepresentative.
My second response is hearty congratulations to Pierre; UCT will immensely benefit from his presence.
Alistair,
Yeah, i completely agree. I am trying to make the best of a bad situation.
But i do think that the phrase is unclear. If they wanted to immunize the statute from review, they could have done so in much clearer terms. That they opted for the ambiguous route means: (a) they are trying to hide their nefarious intentions; (b) they didn’t realize that the phrase would be interpreted in that way.
Here’s an alternative interpretation that would give it some meaning. Maybe it is simply meant to insulate the new Act from technical challenges about the way that money is drawn from treasuries. That seems to be a concern in 173A(2) of the Bill which explicitly permits the new Act to circumvent s 226(2)(b). Perhaps the drafters did not realise that the broad language they used would also immunize the Act from challenges under the Bill of Rights. It also seems a stupid way to go about it – they could just amend the other sections of the Constitution that get in the way. Maybe this is a better interpretation of the section.
If this bill ever comes up for public hearings, i think it is vital to push the government to either admit that they are ousting judicial review, or change the phrase to reflect whatever their true intention was. On the other hand, perhaps it would be better to leave it and hope the CC adopts an interpretation that preserves judicial oversight.
Michael Osborne // Jun 9, 2009 at 1:45 pm
“My first response is perplexed horror (which I am sure Pierre will share), that yet another white male has been appointed to a faculty that is already grossly racially unrepresentative”.
I am now convinced that the story that AA closes the doors on white males being appointed is nothing but a myth….:):)
Vuyo // Jun 9, 2009 at 9:10 am
~As a former active and loyal member, I came to realize that part of the problems that bedeviled the ANC was an increasing culture of expediency. Therefore factual situations would confront the organization and rather than consider the matter based on policies, expedient decisions would be made through casuistic reasoning.~
I suspect it’s universal, Vuyo.
It’s hard to assess what is more laughable,
-Prof thinking that after all the other amendments to the constitution, for some reason the “foundation of our constitutional state” would remain sacrosanct to the expedient meddling of politics, or
-the quaint notion that the constitution held supremacy in the first place.
The Bill of Rights has already been contaminated on the altar of expediency. Do we really have to allow racial discrimination to repair the damage that racial discrimination wreaked on this country? Is this the only way, the last resort? The only unpallatable option left after all other possibilities have been tested and eliminated?
And I’m the old fashioned, naive liberal!
The thin edge of the wedge on constitutional tampering was conceded ages ago. It is only now that it is really starting to crack the foundations and becoming increasingly obvious that the chorus is raised.
Where do you draw the line as to what is reasonable and what isn’t?
And ultimately, who makes that final decision?
High principle is hard to maintain in the face of the practicalities of self-interest.
Michael Osborne // Jun 9, 2009 at 1:40 pm
In the US you have the Federal Tort claims Act if the plaintiff shows merely the act causing the damage was ultra vires this can be shown as a review action. The prvt citizen adversely affected by it can only petition and have it set aside in other words he can not claim damages from the state however there is droit administratif and this is where lovely france kicks in where france’s process in the administrative courts is used to ensure state compliance with court orders.
In germany and austria judgments against the state can be executed as against any other person.
European law which overides national law
The ECJ defined the criteria for establishing state liability as:
1) The EU law breached must have been intended to confer rights on individuals,
2) The breach must be sufficiently serious,
3) There must be a direct causal link between the state’s breach and the loss suffered.
These bills already represent the fact the applicant is limited without even invoking section 36 in the bills if it has then ive missed it but either way intending to prevent the payment of a judgment from state assets because it may for example interrupt public services, the state may wantonly and carelessly disregard any court judgment, regardless of its reasonability, and for that reason it is unconstitutional.
so where can a plaintiff get his remedy from if not from the state even if the state caused the damage?
@ Pierre this one is just for you.
This was an interesting debate and as we can see this isnt unique to south africa
I would like to wrap up my thoughts on this:
What this package is about is state sovereign immunity Instead of directly addressing the
constitutional contradictions the bills carved exceptions from the prohibition against suing the State.
The prospect and actuality of damages can be crucial in creating an incentive for the government to comply with the law.
Without fear of liability, the State has little incentive to be careful in its actions, because any injuries resulting from a failure to perform its duties are of no financial consequence.
The principal justification for the package is immunity protection of the financial structure of the State and provent the state from being thrust against it will into the disfavored status of a debtor.
Since when is a debtor as a result of one’s own negligent acts as “favorable”?
When the State through its own negligence has injured an individual, it is precisely the State that is in a better position to spread the costs of the damages it inflicted.
The issue should be not whether insurance is available, but whether the State breached its duty and caused damages. Yes, taxpayers may feel the impact of damage judgments on the state treasury, and when taxpayers feel that impact, they will demand better behavior by their government. The ultimate result will be greater government accountability.
Michael, you say:
“Also, you are wrong in characterising the amendment as an ouster clause. An ouster clause removes the jurisdiction of a Court. This amendment does not do so. Rather, it alters the substantive law that the Court would apply once it assumed jurisdiction.”
I think this is a semantic splitting of hairs. The amendment says that “despite any other provision of the Constitution” an Act of Parliament must prescribe reasonable procedures for litigating against the state and enforcing court orders. Read differently it says: “despite the provisions of the Bill of Rights and the provisions that says the Constitutional Court MUST declare invalid any law that is in conflict with the Bill of Rights”, a Bill must be passed. The jurisdiction of the court to evaluate a law to see if it complies with the Bill of Rights is thus ousted. At best then a conditional ouster clause, but one that insulates a law from judicial testing against the heart of the Constitution – the Bill of Rights. SUBSTANTIVELY it is an ouster clause even if formally one may argue that the amendment provides other criteria according to which the court can test the law. (And the CC often says it looks at substance and not only at form, so your argument will probably not find favour with a majority of the judges of the CC as presently constituted.) The substantive effect is that the Bill of Rights is not supreme law anymore as an ordinary piece of legislation can be in conflict with its provisions yet cannot be declared invalid by a court because it is such.
The debate about state liability which takes the US or Europe as starting point is problematic because the SA context is different. This is first, because of a “lack of capacity”, “inefficiency”, laziness or callousness many state officials fail to comply with court orders and, second, because those who might want to force the state to pay will often be poor, uneducated and in a desperate need for the funds. Although the minority judgment is plausible I therefore prefer the majority judgment because it is more alive to our present reality in SOUTH AFRICA.
Pierre, it is not just the U.S. and Europe that recognise various forms of state immunity. Take a look at the Indian case of State of Orissa v. Padmalochan, 1975 AIR 41, in which the state was held not liable for injuries caused by police in dispersing a crowd because the police had acted “in the exercise of a “delegated sovereign function.” (So far as I know, the case has not been overturned; Pierre, does anyone know otherwise?)
Note that the grant of immunity in the Indian case was a much more far-reaching step than merely preventing attachment of state property in execution.
But this debate does raise an interesting philosophical question: Is it more problematic for the govt to amend the Constitution after the fact to “set aside” an extant decision of the CC than it would be to amend “pre-emptively,” anticipating a future adjudication of the issue by the CC? I suppose this depends upon how one views the “dialogical” relationship between the Court and other branches of government. Who gets the last word in the inter-branch dialogue? Or is it a conversation without end?
I recall that the issue was much debated a decade or so ago when RIFFRA, intended I think by Congress to “re-establish” religious expression was struck down, having been characterised as a bid to overturn an earlier US Supreme Court decision. (I have not read the case in years, so my recollection here may not be perfect.)
Dave A, so far the Bill of Rights have not been amended. Your reference to affirmative action is not a good one as section 9(2) clearly allows for aa. The CC has said aa is a REQUIREMENT for the achievment of equality and ont the “reverse racism” that some say it is.
Lovely piece by Aviskar Govender at MG’s Thoughtleader on the requirements now to be met before one can apply to be a member of the Newly Transformed SA Judiciary – in other words before you will be shortlisted by the JSC for interviews.
Please remember Bar Council (GCB), Heads of Courts, Deans of Law Faculties and other likeminded useful idiots: Don’t expect citizens to respect this coming appointments to the judiciary!
Michael Osborn we also have a similar case to the Indian case you have quoted, Fose v Minister of Safety and Security. That case limits liability of the state where a state employee violates the Constitution because that will not necessarily cause that state employee to suffer a financial consequence for his/her violatio as a loss is born by the state not that state employee. Ditcott and Kriegler make it clear that without that state immunity, the limited budget would enrich a few litgants and results in eroding of resources that could be used for service delivery.
Prof’s argument is as far as enforcement of court orders makes sense. Afterall, if there are no consequences for not obeying the court orders, rule of law will suffer. On attachment of state property I believe the state must be have immunity. Imagine what would happen to Government that default on their loans, especially euro-bonds and euro-loans. We would have foreign creditors selling or taking over our state assets.
For me the issue is the fact that the ANC-led government believes that the best way to deal with this issue is to simply amend the law so that it is not testable against the Constitution. The law under scrutiny is irrelevant in my opinion – the fact of the matter is that once laws start getting passed which are above the Constitution, a critical line has been crossed.
The Constitution is supposed to be the supreme law of the land. If you suddenly remove a statute from the scrutiny of the Constitution, it is automatically no longer the supreme, or absolutely final, law. Whether you make a bill which would require all men to refrain from wearing pink (to make up a silly example), or pass a law which legalises rape (to make up another silly example) – the moment something falls beyond the scope of the Constitution, we have breached the line. The consequences of my two random examples would obviously be vastly different in terms of their impact on society, but that is not the issue here.
Big Slipper, you need to know that this is not a matter of “amending a law so that it is not testable against the Constitution.” If that was the case, the CC could simply strike it down again.
We area concerned here with an amendment the Constitution itself – by the insertion of a new 173A(1), under the Constitution Eighteenth Amendment Bill, 2009.
Pierre, I am aware this blog does not purport to be a medium of academic instruction. But should you not as a matter of constitutional education, correct fundamental misapprehensions, such as that apparently suffered by Big Slipper here?
Joe Public // Jun 9, 2009 at 6:01 pm
“Imagine what would happen to Government that default on their loans, especially euro-bonds and euro-loans. We would have foreign creditors selling or taking over our state assets.”
This might just be a good thing, this will attach security to state debt and will bring down borrowing costs in the long run. Economics 101
Imagine that you can sue the government for non-delivery and then win a case and still not get paid, thus you then technically have a right to attach the MEC for Gauteng’s Agriculture Dept’s Mercedes ML65 AMG…
But let’s remember that the ANC cannot let that happen, those fancy Mercs are just so nice on the road driving at 180km/h with a blue light convoy, thus changing the constitution and to defy the CC
tsk tsk!
Well…
I held you in high esteem Prof, maybe too high.
The fact that you fell for that ANC hogwash is sad. to those who suggest taht a Constitution must change with the times to be a living and enforcable document, I can only agree. Such changes must, however, not run counter to the spirit of the constitution in question. The spirit of our Constitution is to be seen throughout the document, and gleaned from the fact that the Constitution is a progressive one but also one formulated in reaction (or hindsight) to the Apartheid era. When the state is once again repressive or tending towards such behaviour it is a really bad thing. It is irrelevant that Europe does this or that, we are not a part of Europe. We simply do a comparative study and decide how things are to be done in THIS country.
Instead of commenting here, STOP THEM! If we stand by in silence then we should not be shocked when other elements of the Constitutional Democracy are taken for granted.
The bright side is that this may save students learning the counter-majoritarian dilema.
George, you are obviously not in wholesale banking. Bonds of a country are benchmarked against their Government securities in all functional countries. It is always so many basis points about this Government security and Government securities are considered risk-free.
Even international bankruptcy laws accept that Government assets are not attachable when Governments defaults. The only thing that would happen is that the Government concerned will be punished by increased borrowing costs. In any event cost of borrowing is determined by macro-economic fundamentals, currency convertability, Government’s willingness to pay and so forth, but not security (as there is none).
If Government officials who do not obey court orders were to be jailed for a minimum of six months, then two things will happen. Either the conditions in jail will improve to five star hotels level or officials will obey court orders.
Joe Public // Jun 10, 2009 at 9:56 am
“George, you are obviously not in wholesale banking.”
obviously not, my comment was meant as an ironic statement…
Prof
Maybe Hlope wasn’t so heartless afterall…
http://www.iol.co.za/index.php?set_id=1&click_id=13&art_id=nw20090610104514469C157459
nkululeko // Jun 10, 2009 at 9:39 am
i have to agree with alot of what u said, Constitution must change with the times, must adapt must be progessive.
However the problem comes in when there is an attack on the basic foundations of principles which guides the constitution.
the only thing ill disagree on is this “It is irrelevant that Europe does this or that, we are not a part of Europe.”
I think its extremely relevant taking into account South africa is part of the global village and a member of the UN. South Africa does need to have a look as guidence to see what the rest of the world is doing in the spirit of the constitution to either lead as an example or to follow set standards. Theres a reason why we have first world countries and 3rd world countries and thats simply becuase of strong law. A country may have bad policies example the US but the reason why we are first world country is because we have a strong constitution and strong laws. To not take lessions from other countries would be foolish.
Chris Mcdaniel // Jun 10, 2009 at 11:25 am
“A country may have bad policies example the US but the reason why we are first world country is because we have a strong constitution and strong laws”
This coming from a country with the 2nd Amendment in their constitution?!
Mzo // Jun 10, 2009 at 11:15 am
This just illustrated the blinkers that Pierre wears when he writes.
I hate to say it but Pierre, ‘I told you so!’
khosi // Jun 10, 2009 at 11:40 am
I don’t expect Prof to remove those “blinkers” now, but what I do expect is that he will group all those CC judges that agreed with Hlope JP that the people of Joe Slovo be “moved to that far away place, Delft” as nothing more than Porche driving anti-poor and inconsiderate judges!!
George Gildenhuys // Jun 10, 2009 at 11:36 am
Ha ha george very sharp but you know what im getting at
Mzo // Jun 10, 2009 at 11:15 am
// Jun 10, 2009 at 11:48 am
…
Or, perhaps judges that have second thoughts on Hlophe’s thing before the JSC?
Mzo et Khosi – I think – read the judgment and its consequences first; then see whether you can criticise it or support it from a constitutional/legal angle; and, then only decide whether you are justified to say what you have said above.
Mzo et Khosi – see the following quote from the media summary:
“…This order is different to the order made by the High Court. It is based on an order suggested by the respondents after the hearing. In particular, it stipulates that no person may be moved unless alternative accommodation is provided to him or her. It also requires individual engagement with households prior to their move. The order provides also that the parties should engage meaningfully on the timetable for the move; and on any other matter on which they agree to move. It also declares that 70% of the low cost housing to be built at Joe Slovo must be made available to former or current residents of Joe Slovo who have applied for and qualify for housing.”
While the judgment is not yet on saflii, it can be accesed at the CC’s website http://www.constitutionalcourt.org.za
Anonymouse // Jun 10, 2009 at 11:58 am
You are missing the point. I couldn’t care less whether you, Prof or anyone else agrees with the judgment from a consitutiional/legal point of view.
My issue with Prof on this issue was never about whether Hlope’s judgment was correct or not, but I had issues with Prof calling Hlope JP anti-poor simply on the basis that he ordered that those “poor” prople be moved some 15km away.
My point now is simply that, on Prof’s reasoning, it would appear that Hlope is clearly not the only “anti-poor” judge around!…but I will take you up on reading the judgment!
Mzo – In doing so, concentrate especially on the fact that the respondents themselves felt that the final eviction order was too harsh in the circumstances, and suggested that the eviction order must be suspended until alternative housing has been provided. The CC took the respondents up on this offer and made an order that is DIFFERENT from Hlophe JP’s order – which can therefore still be regarded as anti-poor in the circumstances.
Oh please Mouse…..however you look at it and no matter how “different” you and the CC judges want to tell us that it is, bottom line – these people are going to be moved right where Hlope said they must be moved to “that far away place, 15km away” (to steal some words from Prof.
There is case in the King Sabata Dalinyebo Municipality of the sherriff attaching the vehicles of the city manager and some water meters. The manager escaped with the merc and the guys got a second hand bakkie and took meter readers coz the manucipality owed a servoice provider.
Mzo // Jun 10, 2009 at 1:09 pm
No, no, no Mr Tshaka. They are not in terms of the CC order to be moved to ‘that far away place’. No person may be moved unless alternative accomodation has been provided to him/her; individual engagement has to take place with every household prior to their move; and the parties should engage meaningfully on the timetable of their move and on every other matter on which they agree. Moreover, 70% of the houses to be erected at Joe Slovo must be made available to former or current residents.
That, my friend, is not an ‘anti-poor’ judgement at all. It is not like Hlophe JP said, ‘Move or be forcefully evicted!’
@mouse
is it just me or is Mzo a little slow due to the weather?
Mzo
It states:
This order is different to the order made by the High Court.
it states:
it stipulates that no person may be moved unless alternative accommodation is provided to him or her.
Then it says:
It also requires individual engagement with households prior to their move. The order provides also that the parties should engage meaningfully on the timetable for the move; and on any other matter on which they agree to move.
and finaly it says:
It also declares that 70% of the low cost housing to be built at Joe Slovo must be made available to former or current residents of Joe Slovo who have applied for and qualify for housing.
so because you a bit slow, it says under section 26 of the Constitution because you poor little buggers are living in shacks we are going to move you for a short time so you can move back into an actual house.
So thank the CC judges for allowing government to carry on with there work on service delievery or do you have a problem with giving people better houses?
They going to move back ello???
Hlophe just wanted to get rid of them. see the difference?
Thanks Chris – you have actually read through my quote from the summary above before deciding whether the CC judgment is just as ‘anti-poor’ as was Hlophe JP’s judgment. Mr Tshaka, so it seems, wants to engage in ‘art-for-art’s sake’ criticism of those who criticised Hlophe JP without checking out what the actual terms of the CC judgment are.
@Michael Osborne – thanks for the correction, I am an accountant and not a lawyer after all
Michael Osborne.
Sorry I have entered this debate a bit late, but I’d like to discuss your notion that Pierre (congrats incidentally) is “counter-majoritarian” because he is unhappy with the substance of the proposed Amendment.
Majoritarian must mean more than just Parliament, mustn’t it? It must mean through the will of the people at large. Otherwise you are criticising the fact that Judges are using their subjective opinions to “make” law and not 425 Parliamentarians using their subjective opinions.
So let’s just check to see how “majoritarian” that proposed Amendment is. Well look at the ANC’s electoral mandate: www [dot] anc [dot] org [dot] za/show.php?doc=elections/2009/manifesto/manifesto.html&title=2009+Election+Manifesto
Do you see any reference to Constitutional Reform? No me neither.
I also distinctly remember ANC leaders such as Mantashe rubbishing the suggestion that the ANC was pushing for a 75% or Three/Thirds Majority in order to effect Constitutional Amendment as scare mongering. Indeed fingers were pointed at the opposition parties for clearly outlining the Constitutional Amendments they were proposing as proof that they, and not the ANC, were the real Constitution wreckers! Mantashe on the final Election Debate on SABC2 before the election categorically stated that the ANC had NO PLANS to amend the Constitution.
Now here we have a 58 page document, which could not have been drafted in the few weeks since the election. That means that the Government were planning on publicising this Amendment post-election, despite their assertions to the contrary.
As someone who voted for the ANC, I am extremely concerned that I was blatantly lied to in this manner, that my mandate will be abused in that MPs who are subjected to the party Whip will be asked to vote in favour of a proposed Amendment which I was unaware of, told that no such Amendment would be tabled and that notwithstanding the public participation process, will be Tabled in precisely the form the ANC wants it to be (I’ve been down the public participation process too many times to expect otherwise).
So really to accuse Pierre of being counter-majoritarian is to unduly simplify his critique, and to smokescreen the real issue.
Sir’s, just reading through all these comments, I have only one: We the normal people, who simply want to be free, have no chance to ever achieve this. The reason is simple: Jutice plays no part in anything anymore. All that counts is man made laws, administered by lawyers and made to suit those who crave totalitarian power.