Chairperson, Minister of Justice and Constitutional Development and hon members, let me put it very clearly, I am just reading a speech which is not necessarily mine because the person who was supposed to speak has lost her voice. So, understand if I have some problems with reading it as if it's me speaking.
It is a privilege to stand here and commend the Department of Justice and Constitutional Development for all the hard work thus far, ensuring that justice for all becomes not only a saying, but in fact, slowly but surely a way of life for South Africans. One of the main functions of this department is to provide government with state legal services. According to this department's strategic plan, dated 17 June 2009, an objective of the state legal services programme is to reduce state liability. This, according to the department, will be achieved by service level agreements between the state attorneys and identified client departments being signed and by reducing the department's reliance on private firms.
Again, in the department's budget briefing held on 17 June 2009, the department maintained that it would reduce its reliance on private legal advisory services from 70% to 30% by 2010 to 2011. It is common knowledge that the Constitutional Court in Nyathi v Member of the Education Council for the Department of Health in Gauteng and another, held that section 3 of the State Liability Act, Act 20 of 1957, which prohibits the execution, attachment or like process to be issued against a state defendant or respondent or against any property of the state for the satisfaction of judgment to debts, unjustifiably limits the right to equal protection of the law contained in section 91 of the Constitution.
Section 3 of Act 20 of 1957 was thus inconsistent with the constitutional protection of dignity and the right of access to courts, but more importantly the Constitutional Court also held that section 3 violated the principles of judicial authority and the principle that the public administration be held accountable.
It is further common knowledge that state liability basically means that the relevant state department was found negligent by a court of law, and was accordingly ordered to pay a certain amount of money to the plaintiff or respondent. It is indeed so that this department has issued the Constitution 18th Amendment Bill of 2009 to effect the Constitutional Court judgment of the abovementioned case.
We can all agree that even in this case the law has taken its course, and if the law has taken its course, given the independence of the judiciary and the respect that the court demands in terms of section 165 of the Constitution of 1996, the mandate is clear: Where a state department refuses to adhere to a binding court order, such department runs the risk of having its property attached. It is further common knowledge that attachment of state property will only be effected once there has been deliberate noncompliance of the court order against a specific department.
Cope is concerned that this department wants to reduce the reliance on private legal advisory services to reduce a department's state liability. This is clearly not the source of the problem and the reason why the Constitutional Court arrived at this judgment. The crux of the matter is that state officials are not held accountable when they provide inefficient services. It is these poor services from respective state officials that flies against the promotion of a human rights culture as stipulated in our Constitution. Reducing the reliance on private legal advisory services will not root out the aforementioned poor services. In fact, one also needs to question whether the in-house legal services of the department will be competent in a court of law.
The constitutional right of access to and relief from courts will remain an illusion, unless orders made by the courts are enforced by state departments. According to the Constitutional Court:
There can be no greater carelessness, dilatoriness or negligence than to ignore a court order sounding in money. But we now have some officials who have become a law unto themselves, and openly violate people's rights in a manner that shows disdain for the law in the belief that as state officials, they cannot be held responsible for their actions or inaction. Courts have had to spend too much time in trying to ensure that court orders are enforceable against the state precisely because the straightforward procedure is not available.
It is true that attachment of state property will affect service delivery. It is also true that a number of countries are not in favour of attachment of state property, but what can a plaintiff or respondent do if the state department deliberately disregards a court order? Even in the minority judgement it was held that the problem lies with the inefficiency and mismanagement of public administration.
Before the elections the ANC promised the electorate that it would not use its electoral majority to diminish the power of our courts or take away our rights. If the Amendment Bill is passed it will substantially erode the supremacy of our Constitution and will limit the right to equality and the right of access to courts guaranteed in sections 9 and 34 of the Constitution read with section 165(4).
It must be remembered that President Zuma constantly reminded this country about the rule of law. It is thus ironic that the department through the Bill now wants to remove this right for poor people who really need it. [Time expired.]