During August 2002 Applicant suffered extensive burn wounds and was, as a consequence, admitted to the Pretoria Academic Hospital on 1 August 2002, where a central venous line was incorrectly inserted into the right carotis communis artery. On 2 August 2002 he was transferred to Kalafong Hospital where there was a failure to timeously diagnose the incorrect insertion of a central venous line. As a result of the aforementioned and subsequent omissions by the medical personnel, he suffered a stroke and severe left hemiplegia. The Applicant instituted action against the state. The state entered appearance to defend and filed a plea. The merits were conceded.

Judgement was given on 2 June 2008 - Case CCT 19/07 - Dingaan Hendrik Nyathi versus Member of the Executive Council for the Department of Health, Gauteng Minister of Justice and Constitutional Development.

The Constitutional Court ordered that Section 3 violates the principles of judicial authority and the principles that the public administration be accountable.

The court upheld therefore the declaration of Constitutional invalidity but suspended the order for 12 months in order to allow parliament to pass legislation that provides for an effective means of enforcement of many judgements against the state.

Introduction

The applicant approached the High Court of Pretoria for an order confirming the order of constitutional invalidity of Section 3 of the state Liability Act, 20 of 1957 ("the Act"), in paragraph 1 of the order handed down by the Pretoria High Court on 30 March 2007.

Unfortunately - the state nowadays ignores court orders (whether ad factum praestandum or ad pecuniam solvendam) on a regular basis and the law reports abound of cases where this situation has been criticized by our courts. A citizen, armed with a judgment or order is, notwithstanding an imprimatur by the court, powerless to level execution, obtain an order for contempt or even institute proceedings in terms of section 65 of Act 32 of 1944.

Application Brought By Applicant

On July 2006 applicant's attorney ADELE VAN DER WALT INC wrote a letter to the state Attorney and requested an interim payment. On 3 August 2006 the state Attorney reported that the matter had been referred to his client and he expected that it would not be necessary to proceed by way of Rule 34A of the uniform Rules.

Historical Background of the State Liability Act

Historically it was not possible to sue the state, and this principle finds it's roots in the principle of sovereign immunity. In the early Roman Law the principle of "princeps legibus solutus est" applied. According to this principle the state was not bound by the same rules that applied to it's citizens. In Roman Dutch Law the state was apparently liable in certain circumstances.

In 1910 the Crown Liabilities Act, 1 of 1910, was enacted but was repealed by the state Liability Act, 20 of 1957. In terms of the Act the particular prerogative of state which had earlier prevented it from being sued in courts, was abolished, and within the limits of the Act, the liability of the state is co-extensive with that of the individual citizen.

The Act assumes that organs of state will obey court orders, without being compelled thereto by execution, attachment or like procedures. It would seem that in the past "the legislature was content to rely upon the moral obligation which such decrees are bound to exercise on all concerned."

It was submitted that the "moral obligation" of the state with regard public administration has subsequently became entrenched in inter alia, Section 195 of the Constitution.

It was submitted on behalf of the applicant that the principles of sovereign immunity are not consistent with our Constitution, as this places the state above the law.

Section 3 of the Act

Section 3 of the Act reads as follows: "No execution, attachment or like process shall be issued against a defendant or respondent in any such action or proceedings or against the property of the state but the amount, if any, which may be required to satisfy any judgment or order given or made against the nominal defendant or respondent in any such action or proceedings may be paid out of the consolidated revenue fund."

In the normal course of events a successful party who has judgment can enforce the judgment or order by issuing a writ of execution, or issuing proceedings in terms of Section 65 of Act 32 of 1944.

There is a long line of authorities supporting the view that an order must be ad factum praestandum before a court will enforce it by means of committal for contempt

None of the above cases dealt with the situation where the state is the judgment debtor. The emphasis in all those cases was on the fact that a successful party had other modes of execution at its disposal.

The effect of Section 3 of the Act is that a judgment creditor has no means of giving effect or carrying out a judgment against the state.

In the matter of York Timbers Ltd v Minister of Water Affairs and Forestry and Another 2003(4) SA 477 (T) at 499 H - J it was held that Section 3 of the Act precluded the execution of a committal order against the Minister or other public officials where the state has deliberately not complied with an order of court. It was also stated that until Section 3 has been declared unconstitutional courts will have to comply with it.

In the matter of Jayiya v Minister of the Executive Council for Welfare, Eastern Cape & another 2004(2) SA 611 (SCA), it was held that in terms of Section 3, the state's assets could not be attached, or was it possible to obtain an order for committal for contempt of court in the light of Section 3 of the Act.

After Jayiya supra the courts debated the effect of the Jayiya judgment and tried to create ways and means to get satisfaction for judgment creditors where they had obtained orders against the state. Davis AJ in the Nyathi matter on page 19 of the judgment in the High Court states that:

"In Kate v MEC for the Department of Welfare 2005(1) SA 141 (SE) Froneman J "sought to overcome" the prohibition contained in the state Liability Act by reading and interpreting the Jayiya judgment so as to allow for 'an adopted common law of civil contempt, shorn of it's criminal elements of punishment, in the form of a declaratory order'. Furthermore even if one were to follow the strict interpretation of Jayiya judgment (which Froneman J has, with respect, to an extent conceded "might appear rather strained") it would still only afford limited satisfaction in that it would only allow for a declaration of unlawfulness or a finding of contempt, but with no real further enforceability, such as committal".

It is clear that the courts have tried to create ways and means to overcome the problem created by Section 3 of the Act. Unfortunately, none of these remedies is of any real help assisting in getting actual payment of a judgment debt against the state.

All of these remedies are ineffective in assuring actual payment. It has been proposed that the court should, in cases like this, issue an order calling upon state officials to explain why they have not complied and how they intend on complying. Even if a guilty state official is held personally liable for payment as suggested, for damages, further litigation and costs will have to be incurred, which very few people can afford.

Our contention was that the only way to assist judgment creditors is to allow for execution against the state.

In Section 3 In Accordance With The Constitution

It was submitted that in Section 3 cannot pass constitutional muster. It is part of the doctrine of sovereign immunity and cannot be reconciled with supremacy of the Constitution, the rule of law or the doctrine of separation of powers.

It is also in direct conflict with certain sections of the Constitution.

Section 165 of the Constitution

In terms of section 165 of the Constitution an order or decision issued by a court binds all persons to whom and organs of state to which it applies. It was submitted that if, an Act infringes on this constitutional principle such act must be unconstitutional.

"Section 165(5) of the Constitution stipulates that an ordered decision issued by a court binds all persons to whom and organs of state Liability Act as amended in 1993, read together with the prevailing common law, frustrates a judgment creditor attempting to compel compliance by the state with an order ad pecuniam solvenddam by effectively placing the Sate above the law it would appear that such Act, and more specifically Section 3 thereof, is in conflict with Section 165(5)."

The practical effort of Section 3 is that the state cannot be forced to comply with court orders as there is no manner in which compliance can be enforced.

Section 173 of the Constitution

Section 173 of the Constitution gives the Constitutional Court, the Supreme Court of Appeal and the High Courts the inherit power to regulate their own process. Section 3 limits this power of the courts to the extent that no steps can be taken to ensure compliance with court orders. In N and Others, supra at para [32], 584 F - G Nicolson J stated as follows:

"The effect of the above highlighted passage is that unless and until s3 of the state Liability Act is declared unconstitutional there is no legal mechanism such as incarceration to enforce the court decrees. Should that situation continue the effect of a court order would be what the law calls a brutum fulmen, in other words - a useless thunderbolt. "

In the premises it was submitted that Section 3 offends against the principles enunciated in Section 173.

Section 195(1)(F) of the Constitution

Section 195(1)(f) states that one of the basic values and principles governing public administration is that it must be accountable.

Section 8 of the Costitution

In terms of Section 8, the Bill of Rights contained in Chapter 2, as enshrined in the Constitution, applies to all law, and binds the legislature, the executive and all organs of state.

Section 3 of the Act nullifies these constitutionally enshrined rights with the effect that orders cannot effectively be enforced against the state.

Section 34 of the Constitution

In terms of Section 34 of the Constitution everyone has the right to have any dispute that can be resolved by the application of law, decided in a fair public hearing before a court, or where appropriate, another independent and impartial tribunal or forum. Every citizen therefore has the right to access the courts. This section guarantees that one has a right to approach the courts to resolve disputes.

The question arises whether this implies that a citizen is also entitled to effective enforcement of his judgment. It was our submission that as far as Section 3 nullifies the court's ability to enforce their orders will also frustrate the constitutional rights enshrined in Section 34.

If it is accepted that Section 3 does infringe on the right to access to courts, the question arises whether such encroachment is justifiable. Once the court has come to a conclusion that the relevant legislation falls foul of the Constitution, Section 36 comes into play. In terms of this section, the rights contained in the Bill of Rights may be limited in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom.

The right to access to court is one of the most important rights in the Bill of Rights.

If litigants cannot effectively enforce court orders, the right to access to the courts becomes meaningless.

The most persuasive argument for limitation of this right is that execution, specifically attachment, could disrupt services, which the state must provide for it's citizens. Our contention was, if the situation should occur where strategic assets are attached, the state would have succeeded in an application to set aside such attachment as clearly as it would be mala fide and unreasonable. The possibility of attachment of strategic assets in itself could however never justify the severe restrictions that Section 3 imposes on a citizen's right to access to the courts.

We submitted that a limitation of rights as envisaged by Section 36 is not justifiable. The effect of Section 3 is that the state, may without fear of judicial retribution, ignore court orders.

Section 9(1) of the Constitution

Section 9(1) states that all people are equal before the law and are entitled to equal protection. Section 3 of the Act leads to an unjustifiable differentiation against a judgment creditor who obtains a court order against a private citizen and one who obtains an order against the state.

Our contention was that there exists no justifiable reason for such differentiation.

A Comparative Analysis of International Law

It would seem that in Canada and the USA it is impossible to execute court orders against the state. The underlying principle would seem to be that execution "would impeach the dignity of the state and that execution should be impermissible as private interests cannot be permitted to claim any pre- eminence over those of the state."

In the USA a claimant's ability to enforce a judgment against the state is a matter within the legislature's control.

In the United Kingdom, the state Immunity Act, 1978 applies and Section 13(1)(b) read as follows:

"The property of the state shall not be subject to any process for the enforcement of a judgment of arbitration award or, in any action in rem, for it's arrest, detention or sale." In the matter of M v Home Office [1994] 1 A.C 377 (H.L) it was held that an order of contempt can be made if the state disobeys a court order, but it was also said that arrest and committal to jail will not be possible. In Germany and Austria judgments against the state can be executed as against any other person.

According to Wessels, in France, disputes against the state are dealt with in so-called Administrative courts. Where a court order is not obeyed, a complaint can be lodged with specific bodies. Such body will then negotiate with the administration to ensure compliance. If a negotiation should fail the fact of the non-compliance will be published in a yearly report to exercise political pressure on the administration. The problem is also addressed in France by way of a penalty or fine against the state, which increases if the court order is not complied with.

In Australia the principle of sovereign immunity is still very important and the Judiciary Act, 1903 in Section 65 states: "No execution or attachment, or process in the nature thereof shall be issued against the property or revenues of the Commonwealth or a state in any such suit."

In Queensland, however, Section 11(2) of the Crown Proceedings Act of 1980, states that if the state should fail to obey a court order, ad pecunium solvendam execution and attachment could follow. Only certain assets are excluded from such attachment.

In Belgium execution was initially prohibited. Now, however, a list of assets is published by public bodies which assets could be attached. If such list is not published or the assets are insufficient a judgment creditor can attach any other asset.

It would seem that there is a movement away from the rigid principle that execution against the state assets is impossible and ways and means are created to protect the citizens. The different countries have tried to develop ways to ensure compliance with court orders. It was submitted, that in our Constitutional dispensation, the continued existence of Section 3 is unconstitutional and should be declared as such.

Extent of the Order

The question now arises whether Section 3 could be amended to bring it in line with the Constitution or whether it should be struck down.

Where a statute bears two interpretations reading the statute in line with the interpretation that does not offend the Constitution will be the appropriate remedy. This is referred to as "the reading down" of the Act. Interpreting a statute in this way will avoid the breach of the Constitution and is based on the doctrine of judicial restraint.

It was submitted that the wording of Section 3 of the Act is such that it cannot be read down in order to avoid it being in conflict with the Constitution. The words are very clear and the intention of the legislature is also very clear. It has no inherent ambiguity and has only one meaning or interpretation. The court cannot read down this stature or interpret it in any other way so as to avoid breach of the Constitution.

In this regard it was submitted that no portion of Section 3 can be severed without this section losing it's purpose and meaning. It was submitted that the only viable option was to declare the whole of Section 3 of the Act to be invalid, being in conflict with the Constitution.

Conclusion

It was submitted that Section 3 of the Act falls foul of the Constitution and therefore the order made by the High Court should be confirmed with an appropriate punitive order as to costs.

ADELE VAN DER WALT INC represented the applicant in this matter.