An uproar is brewing in legal and civil society circles who accuse the department of justice of challenging the supremacy of the Constitution. They say a draft Bill the department has quietly introduced aims to change the Constitution in a way that will make Parliament’s decisions on one particular Act immune to the scrutiny of the Constitution.
”It’s an outrage,” says Pierre de Vos, professor of constitutional law at the University of the Western Cape. The department’s Bill ”waters down the supremacy of the Constitution, because it challenges its founding values”.
The public has until July 1 to comment on the Bill. ”They are doing this pretty quietly,” says Jonathan Berger, senior researcher at the Aids Law Project. ”I saw it in the Government Gazette, but no one’s really picked it up.” The call for public comments was also published on the department of justice’s website.
Berger says the Bill ”sends all the wrong signals. We want confidence in our judiciary, and we don’t want people to see us as a country where the government changes the rules of the game when it doesn’t like them.”
The proposed legislation comes following a seven-year saga centred on enforcing debts that the government owes to the public as compensation. In 2002, Dingaan Nyathi suffered a stroke due to negligence at two Gauteng state hospitals. Although the state admitted negligence, it did not pay him damages until much later, and then not the full amount. Because of this, Nyathi could not pay for the medical care he needed, and died five years later.
Nyathi had little power to enforce payment from the government because of the State Liability Act of 1957, which prohibits people owed money by the state from ”executing debts against the government by attaching government property”, according to the Aids Law Project. Following Nyathi’s death, the Constitutional Court ruled last year that this Act was unconstitutional, and gave the justice department a year in which to amend it.
But by this month, it had not done so and requested an extension, which will last till the end of August. In what De Vos calls a ”quick-fix” attempt to get around making the amendment, the department has published the draft Constitution Eighteenth Amendment Bill which, if passed, will insert a new section into the Constitution, making Parliament the supreme decision-maker when it comes to the state owing money to the South African public.
The department has once again requested more time. If the extension is refused, it means the unconstitutional section of the Act will fall away, and people will be able to attach state property. But if the extension is granted, the department will go ahead with its attempt to amend the Constitution.
Berger says the department’s attempt gives the impression that the Constitution is a ”barrier to getting things done” and that ”it’s a very dangerous route to embark on if it is so easy to amend the Constitution when it gets in the way”.
But Zolile Nqayi, spokesperson for the minister of justice, says, ”A Constitutional amendment appears to be necessary to mandate a new State Liability Bill. It was never and will never be our intention to undermine the supremacy of the Constitution. This has repeatedly been stated by government.”
De Vos says that this amendment may not necessarily be malicious towards the Constitution. ”One doesn’t know whether this is being done out of disrespect for the Constitution or a lack of understanding of what the [amendment] actually entails. Sometimes people’s stupidity has no boundaries.”
He says that the amendment shows that the ”government doesn’t take seriously the challenges that poor litigants face”, and if this amendment is passed, and the disallowing of attachment of state property remains in the State Liability Act, then ”unless you have someone with money to help you, you’re not going to get your money”.
Nqayi said ”public participation is a very important part of the legislative process and … this process is guided and informed by the Constitution … Comments received on the two Bills will be considered and the Bills will, if necessary, be adapted in line with the comments before they are resubmitted to Cabinet for approval.”
De Vos says that the majority of the previous amendments bills were passed, but those were requesting technical changes. This one, however, ”is a direct response to a Constitutional Court judgement, which will effectively overturn the judgment if passed, and prevents testing against the Bill of Rights”.
”This is a time to remember that the Constitution is just a piece of paper,” says De Vos, ”and if civil society is not prepared to stand up for it, no matter who is in government, it will be easy for them to make changes whenever they want.”