Ouster clause in 18th Constitutional amendment bill torpedoes supremacy of Constitution
Justice Minister Jeff Radebe is not getting off to a good start. The 18th Constitutional Amendment Bill, just published for comment, seeks to oust the jurisdiction of the courts on state liability just when he has created the perception that he intends to bend the will of the judicial authority to the executive arm of State by influencing the selection of judges by the Judicial Services Commission.
The amendment would stop the courts from striking down any provisions of the draft State Liability Bill for unconstitutionality even if the Bill, once enacted, failed to stop citizens being robbed of effective means of enforcement of money judgements against the State (thereby stripping them of their right of access to court and to the equal protection of the law).
The drafting of the Amendment shows that all this is quite deliberate: it says that "despite any other provision of the Constitution" the new Liability Act will prevail.
The DA has no illusions about the difficulties created by the Constitutional Court's majority judgement in Dingaan Hendrik Nyathi v MEC for Health, Gauteng. The tragic fate of Mr Nyathi, who sued the MEC for R1.5m after an incorrect surgical procedure following severe burns caused a stroke and disability, illustrates vividly the non-compliance by state officials with court injunctions described in a minority judgement as the true problem. The MEC conceded negligence, but before a final determination could be made, Mr Nyathi asked for an interim R300 000 to cover his medical and legal fees. The order was granted, but the MEC failed to comply. The problem, said Judge Nkabinde's minority judgement, in which Chief Justice Langa and Acting Justice Mpati concurred, is public administrative inefficiency. They also argued that a legal remedy was in fact available in the form of a mandamus.
But the simple fact is that the majority judgement requires Parliament to cure the shortcomings of the current section 3 of the State Liability Act, and that is what we must do - not reintroduce and immunise them. We certainly cannot put them beyond the reach of the Constitution, as the 18th amendment tries to do. We will not tolerate any ouster clause that torpedoes the supremacy of the Constitution.
We express the hope that the Minister and DoJ will go back to the drawing board and amend these Gazetted drafts before they are tabled in Parliament. The Constitutional Court's new deadline is the end of August, and the only hope of meeting it is to table constitutionally compliant amendment to State Liability - not to the Constitution.
Statement issued by Dene Smuts MP, Democratic Alliance shadow minister of justice, June 10 2009
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