Subverting constitutional democracy, one step at a time

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?

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