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In the recent judgment of Nyathi v Mec for Department of Health, Gauteng s3 of the State Liability Act was declared unconstitutional. S3 reads,

 

‘No execution, attachment or like process shall be issued against the defendant or respondent in any such action or proceeding or against any property of the state.’

 

The judgment dealt with the difficulties associated with enforcing judgments against the state, who have repeatedly ignored the plight of some of the most vulnerable members in our society. This judgment will hopefully pave the way for effective legislation, which will ensure that judgment debts are enforced.

 

The facts of the case are as follows, the applicant suffered second and third degree burn wounds after a paraffin stove was thrown at him. He was admitted to the Pretoria Academic Hospital where a central venous line was incorrectly inserted into his right artery. The next day he was transferred to Kalafong Hospital where the medical personal failed to diagnose the incorrectly inserted central venous line. The applicant suffered a stroke as a direct result of these omissions. He required full time care and was also liable for the ensuing medical expenses. The combined income of the applicant and his wife amounted to a mere R2 170, on which they supported four children.

 

Three years later the applicant instituted a claim against the Respondent, claiming damages of R 1 496 000 for the pain and disability he suffered as a result of the negligence of the two hospitals. The first respondent initially resisted the claim but later admitted liability. The only question to be decided was the value of his claim.

 

While the applicant waited for the matter to go to trial, his health rapidly deteriorated and he needed urgent medical assistance, he was not in the financial position to fund these expenses. The applicant’s attorneys wrote to the state attorney and requested an interim payment of R317 700. The letter stated that if payment was not forthcoming they would apply to court for an order to that effect. The state attorney responded by requesting one weeks indulgence within which to pay. The State then made an offer of R500 000 in full and final settlement, which the applicant refused.

 

The following month, having had no further response from the state, the applicant applied for the interim relief. The matter was unopposed and the court ordered that payment be made to the applicant. The respondent failed to comply with the court order. The applicant applied to the court for an order declaring s 3 of the State Liability Act to be unconstitutional.

 

The High Court found that s 3 of the State Liability Act was unconstitutional and the applicant sought confirmation by the Constitutional Court.

 

The respondent submitted that it would be prejudicial to the public interest should the assets of the state be attached and sold in execution of a judgment debt. The applicant contended that that execution was an effective remedy given the inefficient bureaucracy and red tape the applicant encountered when dealing with the state.   

 

The court held that s3 makes an unjustifiable differentiation between a judgment creditor who obtains judgment against the state and a judgment creditor who obtains judgment against a private litigant. The court stated, ‘Deliberate non-compliance with or disobedience of a court order by the state detracts from the dignity, accessibility and effectiveness of the court,’ a duty which the Constitution specifically imposes on the state. S3 has the practical effect of placing the state above the law and for these reasons s3 limits the rights to equality before the law. The court held that this limitation was not reasonable and justifiable in an open and democratic society.

 

The court confirmed the order made in the High Court that s 3 of the State Liability Act is inconsistent with the Constitution. The declaration has been suspended for a period of twelve months to allow parliament to pass legislation that provides for the effective enforcement of court orders.

 

 

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