Tenuitvoerlegging van hofbevele teen die Staat
Thesis (LLM (Public Law))--University of Stellenbosch, 2006.
A worrying recent trend is the failure of national government and some provincial governments to comply with court orders. The prohibition on execution of court orders against the state (as contained in section 3 of the State Liabilities Act) has left judgement creditors in these cases without an effective remedy for execution. In contrast, in the absence of a provision prohibiting execution of judgement debt against local governments, creditors of such governments are able to attach all the assets of local governments in execution of such debt. This has resulted in these local governments being unable to fulfil their constitutional obligation to provide basic services. This study investigates the South African rules in respect of the execution of court orders against the state with the aim of proposing a solution for the above problems. First of all, the historical and ideological origins of section 3 are set out. Thereafter, the courts’ practical interpretation of section 3 is investigated. From the above inquiry it becomes apparent that, at present, section 3 prohibits all steps towards execution of judgement debt against both the national government and provincial governments. As against this, local governments are not protected by section 3 and as such, court orders (except in certain exceptional instances) may freely be executed against local governments. The constitutionality of this state of affairs is considered next. It is argued that section 3 is incompatible with the doctrines of the rule of law, the supremacy of the Constitution and the separation of powers. It is also submitted that section 3 is an unjustifiable limitation of sections 9 and 34 of the Constitution, in addition to being contrary to sections 165, 173 and 195(f) of the Constitution. In order to achieve a constitutionally acceptable approach to execution of court orders against the state, and as a consequence of the above findings, it is recommended that section 3 should be amended to (a) make it clear that the state is obliged to comply with court orders, (b) to ensure that creditors have effective means of executing judgement debt against the state and (c) to ensure that the government is not rendered impotent by such execution procedures. Thereafter, international approaches to execution of court orders against the state are investigated. These approaches are then measured against the above-mentioned guidelines for achieving a constitutionally acceptable dispensation for execution of court orders so as to evaluate the suitability of such remedies for South African law. In the light of this discussion, it is proposed that effective remedies for execution of judgement debt against the state should be made available. It is proposed that: (a) orders ad factum praestandum should be enforceable by contempt of court proceedings, (b) orders ad pecuniam solvendam should be enforceable by means of attachment of state assets for purposes of execution (suggestions are also made to counter the disruptive effect of this remedy) and (c) that courts should also be able to issue declaratory orders that an order of court has been disobeyed by the state.