/ 30 August 2007

Delays in judgement payments slammed

Judges at the Constitutional Court expressed concern on Thursday over delays in the payment of judgement orders awarded against the state.

Justice Tholakele Madala said: ”There are no less than 40 judgements which are outstanding — they range from amounts of R8 000 into the thousands — and there is no explanation coming forth as to why these are outstanding.

”Some are in the range of four years old, there must be something wrong.”

Chief Justice Pius Langa added: ”How can courts make orders, and these orders just get lost in a maze of weaknesses in the system … surely someone must take responsibility.”

Said Deputy Chief Justice Dikgang Moseneke: ”I have a deep intolerance for state officials who are paid to do their work and don’t do it … to the detriment of poor, marginalised people.”

He added: ”I don’t want to hear more excuses about the lack of resources because money doesn’t seem to be a problem, not in this country anyway.”

The court was hearing an application to confirm an order by the Pretoria High Court that Section 3 of the Public Liability Act was unconstitutional because, while it made provision for liability payment, it did not allow for the attachment of state assets to fulfil an order not complied with.

The case centres on delays in paying a R2,2-million liability claim to Dingaan Nyathi, who had a stroke after an intravenous device was incorrectly inserted at a Gauteng government hospital. The Gauteng provincial minister for health admitted liability eventually but there were delays in securing payment for Nyathi, who supported a wife and four children.

The provincial health minister and the minister of justice were respondents in the case.

Payment was finally made in May, but Nyathi died in July. However, his lawyer, Ronel Tolmay, is continuing with the case to secure a constitutional principle.

She argued that it should be possible to attach state property — ideally a bank account — because if other avenues failed people would not be able to secure court-ordered payments.

”We have the systems and procedures, but if we can’t get an execution [for assets], everything remains meaningless.”

She added: ”It’s a hollow victory if you win a case and don’t succeed in getting the money.”

The court heard that an affidavit from the state attorney’s office, which was approached as part of the payment process, cited a shortage of resources as a major contributor to the delays.

Paul Kennedy, arguing for the state, said there were other approaches — such as securing a mandamus or a contempt order, besides attachment.

He said the accounting officer responsible for the delays could be located easily and if they still did not comply, imprisonment could be considered as a final jolt for being in contempt of a court order.

”It would galvanise a department, through its accounting officer, into paying,” said Kennedy.

He said the National Treasury could also be approached for help and it does ”crack the whip”.

He conceded that Nyathi should have been entitled to immediate satisfaction but an attachment order would cause chaos in a department.

He said violation of Section 3 did not render it susceptible to being struck down.

But Judge Zak Yacoob questioned why the onus of further litigation should fall on the plaintiff.

”It should be very easy for the plaintiff to get satisfaction on a judgement. It should follow as a matter course — quickly — for the applicant to get that money. I have trouble when you start putting onuses on the plaintiff, the litigant.”

Also for the state, Norman Arendse said there was no evidence that there was a refusal to pay the judgement debt, but the difficulty was complying with Treasury regulations and getting the attorneys on to the data base.

One official had been identified in this particular delay.

He said on balance the system did work, and that the overwhelming evidence was the state did obey court orders.

There was also an obligation to be accountable for public money, he said, and sometimes getting payment was like extracting teeth.

Judgment was reserved. — Sapa