2009-06-19: The Constitution: Just a piece of paper?


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2009-06-19: The Constitution: Just a piece of paper?

Postby GOSA » Wed, 2009-06-24 10:23

http://www.mg.co.za/article/2009-06-19- ... e-of-paper

The Constitution: Just a piece of paper?

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

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 Constitution if it
doesn't like the rule of law."

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."
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