Nyathi v MEC for Department of Health, Gauteng and Another

• Jurisdiction: South Africa
• Judge: Langa CJ, Moseneke DCJ, Madala J, Ngcobo J, Nkabinde J, Sachs J, Skweyiya J, Van Der Westhuizen J, Yacoob J and Mpati AJ
• Judgment Date: 02 June 2008
• Citation: 2008 (5) SA 94 (CC)
• Docket Number: CCT 19/07
• Hearing Date: 30 August 2007
• Counsel: XRG Tolmay SC (with FJ Brand and A Gramova) for the applicant. NM Arendse SC (with HOR Modisa) for the first respondent. P Kennedy SC (S Hassim( for the second respondent. P Hoffman SC (with N de Havilland) for the amicus curiae.
• Court: Constitutional Court

Madala J: H

Introduction

[1] Sitting in the Pretoria High Court (the High Court), Davis AJ made the following order in favour of the applicant in this matter on 30 March 2007: I

1.

The following portion of s 3 of the State Liability Act 20 of 1957 is hereby declared to be inconsistent with the Constitution of the Republic of South Africa and therefore invalid:

'No execution, attachment or like process shall be issued against a defendant or a respondent in any such action or proceedings or against the property of the State. . . .' J

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2.

A The first respondent is ordered to pay the costs of the application on the scale as between attorney and client, such costs to include the costs of two counsel. [1]

[2] In terms of s 172(2)(a) of the Constitution [2] an order of constitutional B invalidity in the High Court has no force or effect unless it has been confirmed by this court. It is the confirmation of that order that is sought by the applicant in these proceedings. Sections 172(2)(a) and 167(5) [3] of the Constitution mandate this court to make orders of confirmation in relation to the declaration of constitutional invalidity of C court orders and Acts of Parliament.

[3] Section 3 of the State Liability Act (the Act) [4] reads as follows:

No execution, attachment or like process shall be issued against the defendant or respondent in any such action or proceedings or against any property of the State, but the amount, if any, which may be D required to satisfy any judgment or order given or made against the nominal defendant or respondent in any such action or proceedings may be paid out of the National Revenue Fund or a Provincial Revenue Fund as the case may be.

[4] At the time this application was made the applicant was permanently E disabled and unemployed. He passed away on 4 July 2007, before the matter was heard on an urgent basis before this court. Shortly before the hearing on 30 August 2007, Lemyiwe Angelina Nyathi, the applicant's wife, successfully applied to this court to be substituted for F the applicant.

[5] The first respondent is the Member of the Executive Council for the Department of Health, Gauteng. The second respondent is the Minister of Justice and Constitutional Development. Both respondents have been cited in their nominal capacities and are represented by the office of the G State Attorney. The second respondent is the national executive authority responsible for the administration of the Act. A litigant such as the applicant in this matter brings the relevant national or provincial

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department before a court by citing the political head of that department A as provided for in s 2 of the Act. [5]

[6] In time the Centre for Constitutional Rights (the CFCR) applied to be admitted as amicus curiae and was granted its request to present written and oral submissions before this court. We are indebted to the CFCR for its assistance. The application for confirmation is strenuously B opposed by the respondents.

Factual background

[7] On 1 August 2002 the applicant suffered 30% second- and third- degree burn wounds after a paraffin stove was thrown at him. He was C subsequently admitted at the Pretoria Academic Hospital for treatment where a central venous line was incorrectly inserted into his right carotis communis artery. On 2 August 2002 he was transferred to Kalafong Hospital in Pretoria where the medical personnel failed to timeously diagnose the incorrect insertion of the central venous line. As a result of D the omissions and mistakes made by the medical personnel at the two hospitals, the applicant suffered a stroke and severe left hemiplegia. He then required full-time care and medical treatment and was also liable for the payment of the medical expenses and the ensuing legal fees.

[8] The applicant used to receive a social grant of R570 per month and E his wife's total monthly income was R1 600. The applicant and his wife also had to support their four children and provide for their daily living expenses.

[9] On 25 July 2005 the applicant instituted action in the High Court against the first respondent, claiming damages in the sum of R1 496 000 F for the pain caused by the stroke and disability suffered as a result of the negligent and improper care administered to him at the two hospitals. The first respondent initially resisted the applicant's claim, but later admitted liability. The only remaining issue was the amount payable to the applicant.

[10] On 27 July 2006 the applicant's attorneys wrote a letter to the State G Attorney stating that the applicant's health was deteriorating rapidly and that he urgently required treatment and medication. They stated further that the applicant could not afford to pay the necessary medical and legal costs while the hearing scheduled for 23 May 2007 was pending. They requested therefore an interim payment of R317 700 and itemised how H the amount was arrived at. It was stated further that should payment not be forthcoming within 14 days of the letter, they would approach the court for relief.

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A [11] On 3 August 2006 the State Attorney reported that it had referred the matter to the first respondent and that he was of the opinion that it would not be necessary to proceed by way of Uniform Rule 34A. [6] The first respondent consequently asked for one week's indulgence within which to pay.

B [12] On 23 August 2006 the State Attorney informed the applicant's attorneys that the first respondent had refused to make the interim payment and had instead resolved to pay an amount of R500 000 as full and final settlement of the applicant's claim. The settlement offer was rejected by the applicant.

C [13] On 30 August 2006 the State Attorney advised the applicant's attorneys that the first respondent was taking issue with paying the requested amount as an interim payment instead of a final payment. It was stated further by the State Attorney that the first respondent did not dispute that it might in future be liable for payment but in the D circumstances requested that payment be deferred until the trial court had decided the issue of costs.

[14] In September 2006, having received no further response from the first respondent, the applicant lodged an application in terms of Uniform E Rule 34A and served it on the State Attorney during October 2006. The matter was unopposed and the court ordered the first respondent to make an interim payment to the applicant in the amount of R317 700 and to pay the applicant's costs on the attorney and client scale.

[15] The applicant, having received no payment, sent a copy of the court F order together with a letter to the State Attorney on 1 December 2006 by registered post. The letter stated that should the first respondent fail to comply with the court order within the prescribed 30-day period, the applicant's attorneys would proceed with an application to compel him to do so. The first respondent failed to comply with the court order.

History of State liability in South Africa G

[16] The concept of State liability in South Africa was statutorily introduced in terms of the Crown Liabilities Act. [7] The section relating to the attachment of the assets of the State is fundamentally similar to the H impugned section in the State Liability Act. The High Court found the two pieces of legislation to be so similar that the case law in relation to the one applied to the other, and this conclusion cannot be doubted. The courts have grappled with the issue over many years; however, it is only

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in recent years that the courts have been faced with a flood of litigation A of this magnitude in respect of unsatisfied court orders.

[17] This legislation was in line and compatible with the doctrine of parliamentary supremacy. [8] It was important in order to prevent execution, attachment or a similar process when the State was sued for damages or contract. It still does however create difficulties for a B judgment creditor.

[18] The Act is a relic of a legal regime which was pre-constitutional and placed the State above the law: a State that operated from the premise that 'the king can do no wrong'. [9] That state of affairs ensured that the State, and by parity of reasoning its officials, could not be held C accountable for their actions.

High Court proceedings

[19] The failure to comply with the court order compelled the applicant once again to lodge an application before the High Court on 21 February D 2007. The application was in compliance with the provisions of Uniform Rule 10A, [10] in which the applicant joined the Minister of Justice and Constitutional Development. An order was sought in the following terms:

2.

[It] is declared that s 3 of the State Liability Act, 20 of 1957, is E inconsistent with the Constitution of the Republic of South Africa.

3.

First respondent is ordered to comply with the court order dated 22 November 2006 within 3 days of this order, failing which the

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A Applicant may approach this court on the same documents, amplified where necessary, for an order declaring the first respondent to be in contempt of court and an order committing the first respondent to gaol for a period of 90 days.

4.

Costs of suit on the scale as between attorney and own client. . . .

B [20] Davis AJ observed that despite the lapse of all relevant time periods as set out in the rules, the respondents had not filed a notice of intention to defend nor any answering affidavit. This failure to abide by the rules occurred even after the applicant had delivered a notice to the registrar of the High Court in terms of Uniform Rule 16A. [11] The respondents did C not respond to the notice despite it being properly served and, consequently, the matter was heard as an unopposed...