If the Government of the Republic of South Africa has given such an instruction [to disobey a Court order] then we face a grave constitutional crisis involving a serious threat to the doctrine of separation of powers. Should that continue, the members of the Judiciary will have to consider whether their oath of office requires them to continue on the Bench.”. As a result of the aforementioned, and subsequent omissions by the medical personnel, he suffered a stroke and severe left hemiplegia.
First Respondent was also ordered to pay Applicant’s costs on an attorney and client scale. The First Respondent was requested to pay the amount in terms of the Court order within 30. The State Attorney did not enter an appearance to defend, nor was an opposing affidavit filed.
In order to force the Respondents to pay in terms of the Court order, the Applicant was compelled to launch the application in the High Court and to approach this Honourable Court for confirmation of that Order. According to this principle the State was not bound by the same rules that applied to it’s citizens. 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 Sate is co-extensive with that of the individual citizen.
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.”.
OF THE ACT
Furthermore, the section means that there can be no execution against the property of the State.”. In Kate v MEC for the Department of Welfare 2005(1) SA 141 (SE) Froneman J “sought to overcome” the prohibition contained in. 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”.
Unfortunately, none of these remedies is of any real help and does not assist in getting actual payment of a judgment debt against the State. It has been proposed that a Court should, in cases like this, issue an order calling upon State officials to explain why they had not complied and how they intend complying. See: De Beer & Vettori “The Enforcement of Socio Economic Rights” (submitted in February 2007 to the South African Law Journal, unpublished, copy available on . request).
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 will be submitted that if, an Act infringes on this constitutional principle such act must be unconstitutional. If the interpretation of Section 3 of the State Liability Act in Jayiya means that the government is not bound to comply with court orders in money or that the courts cannot devise other legal means to ensure compliance with court orders, then there is no possible way that I can think of how Section 3 of the State Liability Act, if interpreted in this matter, can serve the rule of law and the Constitution.”.
Section 165(5) of the Constitution stipulates that an order or decision issued by a court binds all persons to whom and organs of. State to which it applies and to the extent that the 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 solvendam by effectively placing the State above the law it would appear that such Act, and more specifically Section 3 thereof, is in conflict with Section 165(5).”. It can also be argued that as a result the legitimacy of the Courts is threatened as the public will lose it’s confidence in the judicial system.
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 thunder bolt.”.
OF THE CONSTITUTION
OF THE CONSTITUTION
It is a means of determining whether a legal obligation exists and whether the coercive power of the State can be invoked to enforce an obligation, or prevent an unlawful act being committed.”. An important purpose of s34 is to guarantee the protection of the judicial process to persons who have disputes that can be resolved by law. Once the Court has come to the conclusion that the relevant legislation falls foul of the Constitution, Section 36 comes into play.
Furthermore, the nature and extent of the limitation is draconic if regard is to be had to the rights of citizens. 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.” Wessels, supra on p91 state that this school of thought finds its origin in the principle of sovereign immunity. In enforcing a judgment against a governing entity for the negligence of its employee, a plaintiff may proceed to obtain satisfaction in full from the resources of the entity which employed the tortfeasor.
However, an entity created by the State is not liable to a judgment creditor under a judgment entered against the State and the entity’s property is not subject to execution to enforce the judgment.”. 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. 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.
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.”. Interpreting a statute in this way will avoid the breach of the Constitution and is based on the doctrine of judicial restraint. The words are very clear and the intention of the legislature is also very clear.
The Court cannot with respect, read down this statute or interpret it in any other way so as to avoid breach of the Constitution. For example, in Ferreira v Levin, supra, the Court declared the provisions of Section 417(2)(d) of the Companies Act to be invalid, to the extent that they permitted the answers of an examinee in Section 417-enquiry to be used in evidence in criminal proceedings against that examinee. This option was exercised by the Constitutional Court in the case of Coetzee v Government of the Republic of South Africa 1995(4) SA 631 (CC).
It would not be the function of the Court to fill in lacunae in statutes that might not have been visible or regarded as legally significant in an era when parliamentary legislation could not be challenged, but which become glaringly obvious in the age of constitutional rights.”. It will respectfully be submitted that the only viable option is to declare the whole of Section 3 of the Act to be invalid, being in conflict with the Constitution.
