In the application of:
THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT Applicant
and
DINGAAN HENDRIK NYATHI Respondent
In re:
DINGAAN HENDRIK NYATHI Applicant
and
THE MEMBER OF THE EXECUTIVE
COUNCIL FOR HEALTH, GAUTENG First Respondent THE MINISTER OF JUSTICE AND
CONSTITUTIONAL DEVELOPMENT Second Respondent
APPLICANT’S HEADS OF ARGUMENT
Introduction
1. On 2 June 2008 this honourable court declared Section 3 of the State Liability Act,1 to be inconsistent with the Constitution. The court suspended the declaration of invalidity for a period of 12 months to allow Parliament to pass legislation that provides for the effective enforcement of court orders.
2. On 1 June 2009 the applicant by way of an urgent application sought an extension of the period of suspension to 31 May 2010 or such other date determined by this honourable court.2 The court postponed the application to 12 August 2009 and extended the period of suspension of invalidity to 31 August 2009.
3. It is submitted that the order extending the period of suspension to 31 August 2009 is of an interim nature pending the outcome of this application.
4. On 10 June 2009 the court issued directions regulating the further conduct of this application. It directed that:
4.1. any party or person wishing to oppose the granting of the relief sought, must file an opposing affidavit by 22 June 2009;
1 Act No 20 of 1957
2 Notice of Motion p 2 para 2-3
4.2. if the applicant wishes to file a replying affidavit to any opposing affidavits, it shall do so by 6 July 2009;
4.3. written argument shall be filed as follows:
4.3.1. on behalf of the applicant by 13 July 2009; and
4.3.2. on behalf of any party opposing the relief sought by 27 July 2009.
5. The AIDS Law Project (“ALP”) in response to the directive filed an opposing affidavit.3
The power of the court to extend the period of suspension
6. In Zondi v MEC, Traditional and Local Government Affairs & Others, 4 this court held that it had the power to extend the period of suspension under its general just and equitable jurisdiction.
7. It is submitted that the applicant has shown good cause for the extension it seeks.
3 pp 168-219
4 2006(3) SA 1 (CC)
8. On behalf of ALP, it is contended that the explanation for the lateness of the application for an extension of the suspension order is inadequate and that, in any event, the draft Bills do not cure the deficiency which caused the granting of the declaration of invalidity, alternatively it is contended that the draft Bills are prejudicial to the public interest. In the result, the ALP argues that this court should not grant any further extension to the applicant.
The explanation for the late filing of this application
9. We submit that the deponent to the founding affidavit has furnished a full account of the steps taken by the Government to give effect to this honourable court’s order.5
10. The process to create a structure whereby judgment orders sounding in money against the State are paid and accounted for is cumbersome. It involves the National Treasury and the ramifications have to be carefully legislated in order to ensure that there is accountability and, to a large measure, predictability of budgetary planning and constraints.
11. The Government recognises the urgency and importance of finalising the two Bills in a structured manner. The Ministry of Justice as well as the Ministry of Finance have been intricately involved in the process. The
5 Founding Affidavit pp 8-30 paras 6-8
interest of the public is paramount and this requires careful consideration of the structure of the new legislation.6
12. We submit that the applicant has demonstrated good cause or sufficient cause by having furnished an explanation sufficiently full to enable this court to understand why the draft Bills have not, as yet, been passed.7
Prejudice
13. At the end of July 2008, there were 309 unsatisfied judgments totalling approximately R34 million. At on 29 May 2009, that is the day when the founding affidavit was deposed to, the major portion of the outstanding judgments sounding in money against the State were paid. The outstanding judgment orders unpaid are some R3,5 million. In these circumstances, it is fair to say that the R3,5 million has not been paid for a justifiable reason. What is not fair is to speculate on the reasons for this, however it is not unfair to suggest that the Government has demonstrated its resolve to pay all outstanding debts.
14. It is accordingly submitted that there is greater prejudice to Government and its people if the extension is refused as balanced against the interest of those who have judgment debts but who have not been paid.
6 Founding Affidavit p 30-31 para 9
7 Replying Affidavit pp 225-237 paras 7-12; Silber v Ozen Wholesalers (Pty) Ltd 1954 (2) 345 (A) pp 352H-353A
The two draft Bills are in bad faith
15. We submit that the ALP’s contention that the Constitution Eighteenth Amendment Bill (“the CEAB”) and the State Liability Bill (“SLB”) are engineered to undermine the interest of the public and they have the effect of evading this court’s order of 2 June 2008 is ill-founded, speculative and forejudge.
16. The CEAB and the SLB are draft Bills and no more. It may well be that after the comments of interested parties are received and public debate is undertaken on the breadth and scope of these Bills, the Bills are scraped in their entirety. Alternatively, the Bills may withstand scrutiny and with or without amendments are enacted into legislation.
17. The suggestion by Mr Heywood8 that, whilst he did intend, in deposing to the affidavit on behalf of the ALP, to illicit scrutiny of the draft Bills by the court beyond what is necessary for evaluating the Government’s plan, that is precisely what he does by debating the content of the draft Bills.9
18. We submit that it would inappropriate for this court, at this stage, to pronounce on the propriety of the proposed legislation and to comment on whether the proposed legislation, in its development phase and without any finality, meet the requirements of legality.
8 The deponent to the Aids Law Project’s answering affidavit
9 Answering Affidavit p172 para 18; pp 173-185 paras 20-63
19. In Glenister v President of the Republic of South Africa and Others 10 (“the Glenister case”), this court had to determine whether, in light of the doctrine of separation of powers, it was appropriate for the court to set aside a decision of the national executive to introduce Bills into Parliament which provided for the relocation of certain members of the Directorate of Special Operations to the South African Police Service. The court held that an inquiry into whether it was appropriate for it to intervene by setting aside the decision of the executive to initiate the legislative process must be guided by the principle of separation of powers.11 In particular, the court held as follows with regard to the model of separation of powers upon which our Constitution is based:
"The starting point in an understanding of the model of separation of powers upon which our Constitution is based, must be the text of our Constitution. Section 85 of the Constitution vests the executive authority in the President acting with the Cabinet. In terms of s 85(2)(d), the Cabinet has the constitutional authority to prepare and initiate legislation. Section 73(2) gives a Cabinet member the authority to introduce a Bill in the National Assembly. Thus the ministers had the constitutional authority to initiate the legislation in issue here. One of the issues the Cabinet will consider is whether the proposed legislation that it approves and initiates conforms to the Constitution".
20. The court in the Glenister case accepted, for purposes of argument in that case, that a court may intervene in parliamentary proceedings, and then
10 2009(1)SA 287(CC)
11 Glenister v President of the Republic of South Africa at paragraph 35 read with paragraph 36;
Doctors for Life v Speaker of the National Assembly and Others 2006(6) SA 416 (CC).
set out to determine the circumstances in which it may do so.12 The Court formulated the test for intervention, before the completion of the legislative process, as follows:13
"Intervention would only be appropriate if an applicant can show that there would be no effective remedy available to him or her once the legislative process is complete, as the unlawful conduct will have achieved its object in the course of the process. The applicant must show that the resultant harm will be material and irreversible. Such an approach takes account of the proper role of the courts in our constitutional order: While duty-bound to safeguard the Constitution, they are also required not to encroach on the powers of the executive and legislature. This is a formidable burden facing the applicant".
21. We submit that there is no basis with respect to even suggest, that this is a case where this court should intervene at a stage where the process is still incomplete.14
Conclusion
22. We submit that a proper case has been made out for a further extension of the suspension order to 31 May 2010 to allow Parliament to pass legislation to provide for the effective enforcement of court orders.
23. We submit that the applicant has demonstrated that it is bona fide in its resolve to bring about a situation whereby court orders are effectively
12 At paragraph 41.
13 At paragraph 44.
14 Replying Affidavit pp231-237 at paras 10.6.2-12
enforced and that the further extension sought in this application is justified and warranted.
NA CASSIM SC S K HASSIM Applicant’s Counsel
Chambers, Sandton and Pretoria 13 July 2009
