CASE NO. CCT19/07 In the matter between:
DINGAAN HENDRIK NYATHI Applicant
and
THE MEMBER OF THE EXECUTIVE COUNCIL FOR THE
DEPARTMENT OF HEALTH, GAUTENG
First Respondent
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
Second Respondent
THE CENTRE FOR CONSTITUTIONAL
RIGHTS Amicus Curiae
HEADS OF ARGUMENT ON BEHALF OF AMICUS CURIAE
1. INTRODUCTION
1.1 On 13 August 2007 the Centre for Constitutional Rights ( CFCR ) was given leave to intervene as amicus curiae in this application for the confirmation of an order declaring part of s 3 of the State Liability Act, 20 OF 1957 (SLA) unconstitutional. The matter is set
down for hearing on 30 August 2007. These written submissions are filed pursuant to such leave. The protagonists in the main application have consented to the intervention of the CFCR.
1.2 Subsequent to the launching of the application for leave to intervene, the respondents have delivered their responses in the main application and their heads of argument. The applicant has also delivered supplementary heads of argument. From a conspectus of these documents it appears that the respondents are comfortable with the notion that the “Magidimisi1 solution”
propounded by the CFCR is acceptable to them while the applicant has reservations about inspanning a mandamus, supervision order and possible contempt proceedings as an alternative to execution against state assets. He accordingly persists in seeking confirmation of the order of the Court a quo.
1.3 The CFCR takes up the position that there are sound public policy reasons for preserving the whole of s 3 of the SLA on the statute book, that it is not unconstitutional in any way, alternatively its provisions can be read down in a constitutionally compliant way and such limitations of the rights of judgment creditors of the state
1 Magidimisi and Others v MEC and Others unreported judgment (Bisho High Court) under case no: 2180/04 of 13 April 2006
that it may impose are reasonable and justifiable. Litigants who find themselves in the unfortunate and straitened circumstances of the applicant when he approached the Court a quo for the relief granted to him have other more efficient remedies available to them than proceeding to execute against the assets of the state.
1.4 Rather than rehash the comprehensive and thorough arguments adduced on behalf of the parties in the heads already filed of record, the CFCR will, in these submissions, confine itself to points that are essential to the submissions foreshadowed in paragraph 12 of the affidavit in its application for leave to intervene.
1.5 The cases and legislation referred to in the judgment of the Court a quo, read together with the material collected in the article published in De Rebus and annexed to the founding affidavit in the application for leave to intervene afford a sufficient backdrop to the submissions of the CFCR. In what follows it is respectfully assumed that the reader is familiar with both the judgment and the article.
2. THE PROPER INTERPRETATION OF S 3 OF THE SLA
2.1 Had s 3 comprised only the words declared unconstitutional by the Court a quo, there would have been a far stronger argument in favour of the applicant’s stance. It does, however, not stop there.
The legislature’s direction that judgments and orders “may” be paid out of the National or Provincial Revenue Funds must be given due weight and significance. This, with respect, was not done by the Court a quo. The obiter dictum of the SCA in Jayiya2 may have influenced or even caused this attack of judicial myopia. Jajiya has since been set right and clarified by Nugent JA in Kate3, this apparently unbeknown to the Court a quo. The use of the permissive “may” in s 3, rather than the peremptory “must” in relation to payment of judgments is to cater for the possibility of an appeal or application for rescission of judgment, whether late or timeously made. The scheme of the SLA is to set out the nature and extent of state liability. It is not the “State Non-Liability Act” and it should be interpreted accordingly.
2 Jayiya v Member of the Executive Council For Welfare, Eastern Cape and Another 2004 (2) SA 611 (SCA)
3 MEC, Department of Welfare, Eastern Cape v Kate 2006 (4) SA 478 (SCA)
2.2 The thrust of s 3 is that the state’s judgment creditors are obliged to look to the applicable Consolidated Revenue Fund to obtain satisfaction of their claims and are not allowed to levy execution against state assets. This can hardly be described as the exercise of sovereign immunity; on the contrary, judgment creditors are enjoined to “follow the money.” This is a course most ordinary judgment creditors would welcome as the delays and expense of proceeding to execution are thus obviated.
2.3 Had the Court a quo had the benefit of sight of the judgments in Kate (on appeal) and Magidimisi, it is overwhelmingly probable
that it would have followed the mandamus, supervision order - with possible contempt proceedings in case of need - route first adopted in Magidimisi, if not for any other reason than that it would practically and pragmatically have been the most expeditious way in which to assist the sorely abused and neglected applicant. [Notionally, the applicant could still be waiting for his money had the “terminal lethargy” of the first respondent’s employees not been shaken off when the matter reached this Court.]
2.4 Properly construed, the words in s 3 of the SLA after the word “but”
are an open legislative invitation to a successful but unpaid judgment creditor of the state to seek a mandamus directing compliance with the obligation to pay from the applicable consolidated revenue fund by the public servant(s) and politician(s) responsible for effecting such payment. Magidimisi was apparently the first litigant to accept this invitation. The judgment in his favour has not been appealed and the respondents in this matter apparently have no quibble with its reasoning. This appears from paragraphs 73 and 70 of the heads of argument filed on behalf of the first and second respondents respectively.
2.5 The judgment of Nugent JA in Kate has quite unambiguously opened the way for contempt proceedings against recalcitrant officials who knowingly and mala fide fail to comply with the type of mandamus granted to Magidimisi. It is respectfully submitted that, in appropriate circumstances such as existed in casu, the urgent granting of such a mandamus is a quicker, cheaper and more back-straightening method of getting satisfaction of a judgment than the slow, expensive and laborious steps involved in levying execution.
2.6 As to the argument that it is too costly for an impoverished litigant to seek a mandamus: It is open to such a litigant to include in his particulars of claim prayers to the effect that in the event that judgment remains unpaid for a specified period the relevant defendant be directed to take all such steps as may be necessary to comply with the judgment. The mere threat of contempt proceedings against such defendant ought to be enough to inculcate in the public service a culture of compliance with orders of Court. It is lamentable that such a culture does not already exist, particularly in the Eastern Cape and Kwazulu-Natal, where the motion rolls of the High Courts are clogged with matters brought to Court as a consequence of flagrant non-compliance by elements of the public service [Nicki was looking for these].
2.7 As to the public policy reasons for retaining s 3 of the SLA in its current form: the facts which underpin these reasons are set out in paragraphs 23 to 28 of the affidavit filed on behalf of the CFCR.
None of the other parties appear to have caviled at the facts and reasoning adduced in the said paragraphs. In a properly functioning constitutional democracy the assets of the state are held on behalf of the people and for their benefit through the use of such assets in the orderly delivery of services. Unnecessary
disruption of essential services and losses attributable to the mere attachment, let alone sale in execution, of state assets are avoided if litigants against the state routinely resort to the expedient of claiming the form of relief set out in paragraph 2.5 above. This they are all able to do by relying on the provisions in s 3 of the SLA after the word “but”.
3. READING DOWN ACCOUNTABILITY.
3.1 If for any reason this Court is of the view that s 3 of the SLA is unconstitutional in its present format, then the CFCR respectfully submits that such unconstitutionality would be attributable to interpreting s 3 in such a way as to suggest that public servants cannot be held to account for a failure to pay judgment creditors out of the applicable Consolidated Revenue Fund. This would indeed turn a money judgment against the state into the “brutum fulmen” to which Nicholson J referred in the TAC litigation4 of which he was seized on 28 August 2006. This type of reading of the section flows from the misconstrual of the obiter dictum in Jajiya which has since been corrected by the SCA in the Kate appeal.
4 EN & others v Government of RSA & others [2006] JOL 18176 (D) at para 32
3.2 In the light of this correction, it is a simple matter to so interpret s 3 as to align it with the accountability provisions in s 195 of the Constitution. This is what informs the approach in Magidimisi, and for the reasons so resoundingly enunciated by Froneman J in the opening stanza of his judgment in that case, it is sound constitutional law.
3.3 In these circumstances it is open to this Court to adopt the reasoning in Magidimisi. This would strike a balance between protecting state assets against execution while allowing unpaid judgment creditors to get satisfaction of judgments by holding recalcitrant public servants to account.
4. IT IS REASONABLE AND JUSTIFIABLE TO PROSCRIBE EXECUTION AGAINST STATE ASSETS.
4.1 The CFCR concedes, in paragraph 22 of the affidavit filed on its behalf, that the prohibition against levying execution against state assets may possibly be a limitation on the rights of judgment creditors of the state. However the alternative offered in s 3 of the SLA, namely to obtain satisfaction of the judgment from the relevant Revenue Fund, is so attractive a proposition as to render
the limitation slight if not nugatory. It is also a reasonable and justifiable limitation in terms of s 36 of the Constitution. The facts upon which these submissions are based are set out in the affidavit filed on behalf of the CFCR in paragraphs 23 to 28. These facts are common cause before this Court. They are all obvious, if somewhat chilling to those who value the preservation of the
“family silver” of the nation.
4.2 As has already been pointed out above, there are no insuperable obstacles to obtaining payment via the route scouted in Magidimisi. Cautious impecunious litigants can insert a mandamus
in their particulars of claim at virtually no extra cost. The pro bono system of legal assistance could also be harnessed, if, in the short term, the problems of obtaining satisfaction of judgments sounding in money against the state become endemic. It is fervently to be hoped that the judgment of this Court will be taken to heart by the public service, that it will slay the myth that public servants cannot be held in contempt of Court and that state non-compliance with orders of Court and judgments will swiftly become history.
5. THE ROLE OF THIS COURT IN EDUCATING THE PUBLIC SERVICE.
5.1 It has long been the practice of this Court to issue a media summary of its judgments in order to facilitate public understanding of the work it does. This is a salutary practice. In this case, and because all efforts hitherto to instill in the responsible members of the public service a general sense of accountability and an appreciation of the meaning and significance of s 165 of the Constitution have failed, it is respectfully, although somewhat tentatively, submitted that it would be appropriate for the Court to address itself directly to the public service in this matter in order to make the legal position it decides upon crystal clear to every employee in the public administration. Whether this is done by so tailoring the media summary as to make it useful to the leadership of the public service in disseminating the rationes of the findings, or by devoting a section of the judgment itself to the education of the public service is obviously a matter for the discretion of the Court.
5.2 It may also be worthwhile to give consideration to issuing directions as to the extent of the dissemination of the judgment or its summary or the section of the judgment addressed to the public
service which the Court deems appropriate in order to give efficacy to the rulings it makes in the matter.
5.3 The attempts of the CFCR to publicize the finding in Magidimisi in the press, on its website, in De Rebus and through the Ministry of Education failed so miserably that all the State Attorneys for first respondent in this case, the applicant’s entire legal team and the Judge a quo were all apparently unaware of the solution Magidimisi offers to those who find themselves in the challenging
and unhappy predicament in which the applicant was when he approached the Court a quo. Had but one of them known of the decision of Froneman J, who has for so long grappled with the problems of non-compliance with court orders and judgments against the state, this hearing would in all probability not have been necessary and the optimistic prediction made in the penultimate paragraph of the De Rebus article would have been less inaccurate.
5.4 As far as can be ascertained, after Magidimisi no attempt was made to inform the public service of the meaning and import of the decision either through the State Attorney, the Public Service Commission or at all. If the judgment of this Court in this matter
shares the same fate a lot of entirely avoidable litigation will impede the wheels of justice, particularly in those provinces in which failure of proper service delivery presents problems which lead to litigation between subject and state.
5.5 In these circumstances it would, with the greatest of respect, be appropriate to order some form of publication of all or part of the judgment of this Court in this matter.
6. LIABILITY FOR COSTS
6.1 In paragraph 33 of the affidavit filed on its behalf, the CFCR asks that the costs of its intervention in the matter be born by the state.
No objection has been made to this prayer. The CFCR has sought to raise an issue of national importance. Had its previous efforts to publicise the Magidimisi solution been heeded by the state, this litigation may well not have been necessary.
6.2 For the reasons set out below, the CFCR also submits that this would not be an appropriate case for a costs order to be made against it.
6.3 The CFCR is a relatively impecunious non-governmental organization which is reliant upon donor support to function.
6.4 All parties to this matter have consented to the intervention of the CFCR.
6.5 By drawing attention to Magidimisi at the first reasonable opportunity to do so and participating responsibly as amicus curiae, the CFCR has properly fulfilled its functions and duties in the
matter. It intervenes in this matter, not in the pursuit of its own interests, but in the interests of persons who might not otherwise enjoy a voice in these proceedings and in the public interest. It would be manifestly unfair for the CFCR to be out of pocket as a consequence of its intervention.
Dated at Cape Town this 20th day of August 2007.
Paul Hoffman S C N de Havilland
Counsel for the Amicus Curiae.
