SECTION27 recently made a written submission to Parliament on the State Liability Amendment Bill [B 2–2001]. In short, SECTION27 supports how the Bill seeks to regulate the manner in which a final court order sounding in money against the state must be satisfied – it sees the Bill as being squarely in line with the decisions of the Constitutional Court in Nyathi v MEC for Department of Health, Gauteng and Another  ZACC 8 (“Nyathi 1”) and Minister for Justice and Constitutional Development v Nyathi  ZACC 29 (“Nyathi 2”) dealing with the unconstitutionality of section 3 of the State Liability Act 20 of 1957 and how it is to be remedied.
Notwithstanding its broad support, SECTION27 has raised three concerns arising from the text of the Bill itself. All of these are somewhat technical in nature, and are simple to address with minor textual amendments. In addition, it has drawn attention to a couple of extracts from the Constitutional Court’s decision in Nyathi 2 that assist in interpreting what is meant by “the interests of justice” in proposed new section 3(7). That subsection provides a mechanism for any party with a “direct and material interest” to stop the sale in execution of essential state assets.
This submission follows SECTION27’s Constitutional Court intervention – when it was still the AIDS Law Project – in Nyathi 2, as well as a submission to the Department of Justice & Constitutional Development on an earlier version of the Bill.
For our factsheet on Nyathi 2, see here.
For our previous submission on the earlier version of the Bill, see here.