Now you cannot understand anything about fascist doctrine if you do not understand that their central claim was that liberalism is antidemocratic; in other words, the fascists claimed that liberal institutions cannot represent the will of the people. They further claimed that their typical institutions, particularly the party, were more effective means to represent the will of the people. So fascists were “authoritarian democrats.”
Comment on Constitution Eighteenth Amendment Bill of 2009
The Constitution Eighteenth Amendment Bill of 2009 and the State Liability Bill of 2009 purports to give effect to an order handed down by the Constitutional Court in Nyathi v Member of Executive Council for Dept of Health, Gauteng[i] in which section 3[ii] of the State Liability Act 20 of 1957 was declared invalid. The manner in which these Bills attempt to address the concerns raised by the Constitutional Court in the Nyathi judgment is, however, problematic both from a procedural and substantive point of view. In this submission I wish to point out some of the difficulties with the proposed legislation and to warn against the possible procedurally deficient adoption of the Constitutional Eighteenth Amendment Bill which would render it vulnerable to constitutional review. I also argue that the Constitution Eighteenth Amendment Bill as it currently reads is too broad and contains much that is unnecessary and superfluous.
2. The Nyathi case
2.1 Factual background
Mr Nyathi suffered a stroke and became permanently disabled due to the negligence of medical personnel at the Pretoria Academic Hospital and the Kalafong Hospital – both state institutions. He then required full-time care and medical treatment and was also liable for the payment of medical expenses and the ensuing legal fees. He instituted an action for R1 496 000 against the state and the state admitted liability but disputed the amount owing to Mr Nyathi. After some legal manoeuvring, the court ordered the state to make an interim payment of R317 700 and to pay Mr Nyathi’s cost. The state failed to comply with this court order, despite several attempts on Mr Nyathi’s behalf to effect payment. Mr Nyathi’s lawyers then approached the High Court for an order declaring invalid section 3 of the State Liability Act and an order for the state to honour the court order within 3 days, failing which the applicant sought permission to approach the court for an order declaring the MEC in contempt of court and ordering the MEC to be committed to prison for 90 days. The High Court found that as this was an application sounding in money, the appropriate remedy would have been to levy execution against state assets and not to proceed with contempt proceedings.[iii] The Court pointed out that section 3 of the State Liability Act precluded the court from making this order and that, in effect, Mr Nyathi had no other way of enforcing the court order for the payment of the money owed to him. The High Court subsequently declared invalid section 3 of the State Liability Act. Mr Nyathi died before his case reached the Constitutional Court where this order of invalidity had to be confirmed, and his widow took up the case on his behalf.
2.2 Constitutional Court judgment
The majority judgement of the Constitutional Court (per Madala J) stated that the State Liability Act was “a relic of a legal regime which was pre-constitutional and placed the state above the law: a state that operated from the premise that ‘the king can do no wrong’” and this meant that the effect of the section was that the State and its officials could not be held accountable for their actions (or lack thereof).[iv] What section 3 of the State Liability Act did was to preclude the attachment of assets of the State where State officials failed to comply with a court order to pay a litigant money owed to him or her. This section thus prevented the effective enforcement of court orders and therefore limited Mr Nyathi’s rights as enshrined in the Bill of Rights.
The Constitutional Court pointed out that section 8(1) of the Constitution provides that the Bill of Rights applies to all law and binds the legislature, executive and the judiciary and all organs of state, while section 34 of the Bill of Rights guarantees everyone the right to have any dispute that can be resolved by the application of law decided in a fair public hearing before a court. Moreover, section 165(5) of the Constitution states that an order or decision issued by a court binds all persons to whom and organs of state to which it applies while section 165(4) requires organs of state, through legislative and other measures, to assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of courts. The court pointed out that the deliberate non-compliance with or disobedience of a court order by the state detracts from the “dignity, accessibility and effectiveness of the courts”. Section 3 of the Act “effectively places the State above the law as it does not positively oblige the State to comply with court orders as it should”. This, the court found, is not compatible with the language of sections 8, 34, 165(4) and (5) of the Constitution.[v]
Moreover section 3 also limited other rights enshrined in the Bill of Rights. According to Madala J this was so because:
The applicant was made to wait for an extremely long time for money required to pay for his treatment. Without the rehabilitative treatment, he stood a very slim chance of survival. The state was made fully aware of this very desperate situation but provided no relief. He was then unable to attach state assets due to the operation of section 3. It certainly cannot be said, in these circumstances, that the applicant was treated in a manner that showed recognition for his worth and importance as a human being.[vi]
In the light of the above the court found that section 3 violated Mr Nyathi’s right to dignity (section 10), his right to life (section 11) and his right to be treated as equal before the law (section 9(1)), while he was also denied the right of access to the law (section 34).
The Court also found that this limitation of Mr Nyathi’s rights was not justified in terms of section 36 of the Constitution which allows for the limitation of rights. The state had argued that section 3 was just and reasonable within the meaning of section 36 because it served to protect essential state assets from being attached. It disallows attachment of state assets as such attachment has the potential to disrupt service delivery and to interfere with state accounting procedures. The Constitutional Court agreed that there are few countries who would allow the attachment of certain state assets such as ambulances and dialysis machines as this would unjustifiably (and thus unreasonably) limit the rights of many other individuals. Where legislation in other jurisdictions allows for the attachment of state assets such legislation prescribes the assets that can be attached and limits this to assets that are non-essential to the proper functioning of the state.[vii]
The problem in South Africa is that while the State is made liable for judgment debts that accrue against it, an effective process that would allow a litigant to gain satisfaction of such debts are not in place. There are several reasons for this problem.
According to the Constitutional Court “[l]egislation must set out the procedures required for the implementation of the state’s obligations, as dictated by the Constitution. These procedures, vital to our democracy, founded on the rule of law, are absent here”.[ix] Present procedures are inaccessible to the majority of creditors and are far too complex to constitute a reasonable fulfilment of the state’s obligations in terms of the Constitution. Worse, the relevant sections of the PFMA and its regulations fail to deal at all with how court orders are to be satisfied where the relevant officials fail to give effect to such an order.[x]
The Constitutional Court pointed out that courts in South Africa have been inundated with cases where court orders have been flouted by state officials. Justice Madala deplored this state of affairs stating that:
In my view, there can be no greater carelessness, dilatoriness or negligence than to ignore a court order sounding in money, even more so when the matter emanates from a destitute person who has no means of pursuing his or her claim in a court of law. But we now have some officials who have become a law unto themselves and openly violate people’s rights in a manner that shows disdain for the law, in the belief that as state officials they cannot be held responsible for their actions or inaction. Courts have had to spend too much time in trying to ensure that court orders are enforceable against the State precisely because a straightforward procedure is not available.[xi]
The problem seems to be twofold, according to the Constitutional Court.
What was required was more than the internal disciplinary procedures prescribed by the PFMA. Legislation that would address the problems outlined above was therefore desperately needed. Parliament, when fixing the problem identified by this judgment was therefore required to provide reasonable measures to assist litigants to enforce court orders by enacting legislation that would allow mechanisms that would enable judgment creditors to execute against the funds. The practice in some other countries is to issue a certificate, which on presentation to the relevant authorities will result in payment.[xii]
The Court thus made an order to the following effect:[xiii]
(1) It confirmed the order of invalidity of the High Court of section 3 of the State Liability Act but suspended this order for 12 months to allow Parliament to pass legislation that would provide for the effective enforcement of court orders.
(2) The Minister of Justice and Constitutional Development was ordered to compile and provide to the court on affidavit a list of all unsatisfied court orders against all national and provincial state departments, indicating the parties, the case numbers and the amounts outstanding by 31 July 2008.
(3) The Minister of Justice and Constitutional Development was ordered to provide the Court with a plan of the steps it would take to ensure speedy settlement of unsatisfied court orders by no later than 31 July 2008.
3 The Constitution Eighteenth Amendment Bill
3.1 Purpose of the section
The aim of the proposed Constitution Eighteenth Amendment – which aims to insert section 173A into the text of the Constitution – is not as clear as it could have been. It is also far from clear whether this amendment is necessary at all to comply with the Nyathi judgment. However, having said this, a close analysis of the proposed amendment suggests that it aims to achieve two distinct purposes.
First, the amendment seems to oust the jurisdiction of the courts to test legislation purporting to give effect to the Nyathi judgment against the Bill of Rights or any other section of the Constitution – apart from the newly to be inserted section 173A of the Constitution itself. This conclusion must be reached in the light of the wording of section 173A(1) which states that “[d]espite any other provision of the Constitution, an Act of Parliament must prescribe” procedural requirements for the institution of legal proceedings against the state. This means that once such an Act is passed, it could be tested against section 173A, but not against any other provision of the Constitution.
Second, the effect of this far-reaching provision is somewhat mitigated by the rest of section 173A which prescribes certain standards that any new legislation will have to meet. Section 173A(1)(a) demands that an Act of Parliament must prescribe reasonable procedural requirements for the institution of legal procedures against the state. Section 173A(1)(b) furthermore demands that an Act of Parliament must prescribe reasonable 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. Section 173A(1)(c) demands that an Act of Parliament must prescribe reasonable measures to enable the state to deal efficiently and effectively with all legal proceedings in which the state is involved. Section 173A(2) purports to amend section 226(2)(b) of the Constitution. This section states that money may be withdrawn from a Provincial Revenue Fund only as a direct charge against the Provincial Revenue Fund, when it is provided for in the Constitution or a provincial Act but section 173A(2) now aims to limit its scope and to prevent it from applying in certain cases regarding the payment of funds from Provincial Revenue Funds. The effect of section 173A will therefore be that while no court will be able to test the envisaged Act against any of the other provisions of the Constitution, it will be able to test such an Act against the requirements set out in section 173A. Where the new Act, in the opinion of a court, fails to comply with the requirements of section 173A, the impugned provisions of such an Act will have to be declared invalid by a court.
3.2 Procedural problems with the adoption of the Constitutional Amendment
The Constitutional Court has found that once a constitutional amendment has been validly adopted by the legislature, such an amendment cannot be tested by the courts against any other section of the Constitution. A court can therefore not enquire into the constitutionality of a constitutional amendment that was validly passed by Parliament. It can, however, enquire into the validity of procedure employed by Parliament to adopt a constitutional amendment to check whether the amendment was passed in accordance with the requirements set out in section 74 of the Constitution. Where a purported constitutional amendment was not passed in accordance with the requirements of section 74, such an amendment must be declared invalid by the court.
Section 74 of the Constitution requires that ordinary amendments to the Constitution must be passed by at least two thirds of the members of the National Assembly and six of the nine delegations of the NCOP. However, section 74(1) of the Constitution states that section 1 and section 74(1) may be amended by a Bill passed by the National Assembly, with a supporting vote of at least 75 per cent of its members; and the National Council of Provinces, with a supporting vote of at least six provinces.
At first glance, the Constitution Eighteenth Amendment Bill is an ordinary amendment of the Constitution and would only require the assent of two thirds of the members of the National Assembly. However, a very strong argument can be made that the impugned amendment would in fact amend section 1 of the Constitution and would therefore require 75 percent of the members of the National Assembly to assent to it in order to be validly passed. The reasons for this are as follows:
First, in numerous judgments the Constitutional Court has argued that when interpreting legislation and in establishing the nature of that legislation for purposes of classification (for example, to decide whether a Bill is a schedule 4 or 5 Bill) a court must have regard not only to the form but also the substance of the legislation. This means that regardless of the actual wording of a section, a court must have regard to the effect that a scrutinised section of the legislation might have and not merely the form in which that section was cast. The fact that the Constitution Eighteenth Amendment Bill does not formally purport to amend section 1 of the Constitution will therefore not be conclusive in order to ascertain whether it amends section 1 of the Constitution and thus requires the 75% majority prescribed by section 74(1). A court will enquire whether the impugned amendment – despite purporting to amend other sections of the Constitution – has the effect of amending section 1 of the Constitution or not.
Second, section 1(c) of the Constitution states that “The Republic of South Africa is one, sovereign, democratic state founded on the following values: … (c) Supremacy of the constitution and the rule of law”. Any amendment of the Constitution that would have the effect, in any way, of watering down the supremacy of the Constitution or the Rule of Law would thus in effect constitute an amendment of section 1 of the Constitution and a court would thus be required to invalidate the amendment unless it was passed with the requisite 75% majority in the National Assembly. As pointed out above, the Constitution Eighteenth Amendment Bill will have the effect of immunising an Act of Parliament from being tested against all provisions of the Constitution, bar the new section 173A of the Constitution. While this amendment would therefore not completely oust the supremacy of the Constitution, it will have the effect of removing the supremacy of all but one of the sections of the Constitution in relation to a specific Act of Parliament. Apart from section 173A, the other provisions of the Constitution will no longer be supreme in relation to a specific Act of Parliament and a court would not be able to enquire as to whether this act complies with all but section 173A of the Constitution. It is therefore my contention that this amendment, in order to be validly passed, will have to be passed by 75% of the members of the National Assembly. If it is not passed by 75% of the members of the National Assembly, the amendment will be invalid and will be declared null and void by the Constitutional Court if challenged.
3.3 The Amendment might be superfluous
Seemingly one of the aims of the amendment is to immunise the proposed State Liability Bill from being tested against the provisions of the Bill of Rights. However, as pointed out above, section 173A does not completely oust the jurisdiction of the court to enquire into the constitutional validity of the Bill as it must still comply with the requirements of section 173A which requires, inter alia, that the Bill prescribe reasonable measures for enforcing the execution of final court orders against the state, including the payments to be made to the state to comply with final court orders. As pointed out above, the Constitutional Court in Nyathi declared invalid section 3 of the State Liability Act and ordered the legislature to enact legislation that would provide for the effective enforcement of court orders. An Act that places restrictions on the ability of an individual to enforce court orders against the state will, as was seen in Nyathi, limit several of the Rights in the Bill of Rights. But such limitations might be justifiable in terms of the limitation clause in section 36 of the Constitution which requires that any limitation must be reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom. The test for whether the limitation on the rights of an individual will be justifiable will therefore be similar to the test envisaged by section 173A. If section 173A is passed, a court would still be able to enquire as to whether the State Liability Bill prescribes reasonable measures for the enforcement of court orders against the state. When doing so, a court will have regard to the same criteria used when considering whether a limitation of any of the rights in the Bill of Rights is justifiable in terms of section 36 of the Constitution. This is because the Constitutional Court has stated that the Constitution must be interpreted holistically and must be understood to form a seamless whole. Reasonableness in section 36 and reasonableness in section 173A will therefore necessarily attract a similar meaning. If the proposed State Liability Bill would not pass muster against the provisions of the Bill of Rights – including section 36 – which the Constitutional Amendment purports to oust, it will most probably also not pass muster against the provisions of section 173A. The Constitutional Amendment is therefore most probably superfluous and unnecessary as it would not immunise the State Liability Bill from constitutional attack. The proposed Constitutional Eighteenth Amendment Bill was presumably drafted to immunise the new State Liability Bill from the consequences of the Nyathi judgement to allow for a legal regime that would be less exacting than that required by the Bill of Rights as interpreted by the Constitutional Court. But given the wording of the Constitutional Amendment, the new State Liability Act will still have to provide for reasonable measures for enforcing the execution of final court orders against the state (as required by the Nyathi judgment). If the new Bill provided for measures that would not be found to be reasonable in terms of section 36 of the Bill of Rights, it would also not be reasonable in terms of the proposed Constitutional Amendment. The Amendment will therefore almost certainly not achieve what it set out to achieve.
It might well be that section 173A(2) which will amend the provisions of section 226(2)(b) to prevent the latter section from applying in certain cases regarding the payment of funds from Provincial Revenue Funds, might be deemed necessary to deal with the Nyathi case. If this were to be the case, the correct procedure to follow is to amend section 226(2)(b) itself in such a way that would allow a new State Liability Act to provide for the effective payment of debts.
3.4 The proposed amendment deals with a court judgment in an inappropriate manner
The question of how to deal with difficulties encountered by litigants against the state to enforce court orders sounding in money is a difficult one. As the Constitutional Court pointed out, the problem stems from both the legal provisions which fail to hold officials to account for non execution of such orders and from the deleterious and inefficient behaviour by state officials. The problem is both legal and systemic. While legal rules do not hold officials to account, officials themselves sometimes have failed to internalise the Bathopele principles according to which they are supposed to treat the public. While the former is easier to fix, the latter will take time and special effort. The Court signalled an understanding of the complexity of the problem and will take this into account when testing the constitutionality of any new legislation adopted by Parliament. In the light of the above, the amendment of the Constitution in a vain attempt to immunise legislation from attack seems like a quick-fix solution which fails to address some of the fundamental systemic problems (as noted by the Nyathi judgement). Instead of dealing with the difficult systemic problems relating to capacity constraints and an inability or unwillingness of state officials to adhere to the letter and spirit of the Constitution – including the Rule of Law – the proposed amendment’s attempt to fix the problem will have the effect of eroding respect for the Rule of Law. This approach is wrong in principle as it will further entrench or perpetuate the systemic problems relating to the inability or unwillingness of state officials to obey court orders. This amendment therefore sends out a highly problematic signal that the state is not willing to take (the admittedly complex and difficult) steps that would ensure its officials adhere to court orders and respect the Rule of Law – one of the founding provisions of our Constitution.
Moreover, the manner in which the state responds to court judgments says much about the attitude of the state towards the courts. It must be recalled that section 165(4) of the Constitution requires organs of state, through legislative and other measures, to assist and protect the courts to ensure the independence, impartiality, dignity, accessibility and effectiveness of courts. Where the state responds to a court order declaring a provision of an Act unconstitutional by amending the Constitution, it sends a signal that the state does not respect court orders and will, when it sees fit, amend the Constitution to undo the judgments of our highest court. It might well be that in extreme cases the legislature may feel it is imperative that the order of a court be undone to ensure the effective and smooth running of the state. This is clearly not such a case. The proposed amendment therefore does not only seem superfluous but also disrespectful to the Constitutional Court.
Pierre de Vos
1 July 2009
[ii] Section 3 stated that: “No execution, attachment, or like process shall be issued against any defendant or a respondent in any such action or proceedings or against the property of the State…”
[iii] See Nyathi v MEC for the Department of health, Gauteng and Another 26014/2005 TPD, 30 March 2007 par 7.
[iv] Par 18.
[v] Par 44.
[vi] Par 45.
[vii] Par 51.
[viii] Par 52.
[ix] Par 55,
[x] Par 58.
[xi] Par 63.
[xii] Par 86.
[xiii] Par 92.BACK TO TOP