In 2002, Dingaan Nyathi was left paralysed as a result of medical negligence at a state hospital. He instituted litigation in the North Gauteng High Court in 2005. The state accepted liability but the amount was not agreed upon. The High Court ordered that section 3 of the State Liability Act 1957 (the Act) is unconstitutional. The State failed to pay an interim amount.

Since the State failed to settle the interim amount, the matter was taken on urgency to the Constitutional Court in 2007. On 4 May 2007, on the day of the hearing, the State paid the interim amount. The matter was set down for hearing on 30 August 2007, for oral argument regarding the constitutionality of the Act. Before the application was heard in August 2007, Nyathi passed away and his wife successfully applied to the Constitutional Court to be substituted as the applicant.

On 2 June 2008 the Constitutional Court confirmed that section 3 of the Act was unconstitutional. The section prohibited parties to whom debts are owed by the state from executing against or attaching state assets for the satisfaction of judgments debts. The Court suspended the declaration of invalidity for twelve months to allow Parliament to pass legislation that provided for the effective enforcement of judgment debts. However, on 1 June 2009, the Minister of Justice and Constitutional Development instituted an urgent application to extend the period of the suspension period. The Constitutional Court handed down an order extending the period of suspension until 31 August 2009. The matter was set down for hearing on 12 August 2009.

The application was opposed by the Aids Law Project. The Law Society of South Africa was admitted as an intervening party and the Legal Resources Centre (LRC), Freedom under Law and Aids Law Project were admitted as amici curiae.

On 31 August 2009, the Court handed down an interim court order extending the suspension period for a further two years, i.e., until 31 August 2011. The Court also provided for a tailored attachment and execution procedure against state assets. Furthermore the Court ordered that ‘parties to this case, as well as the Minister of Finance, may submit written argument on or before 15 September 2009, proposing an alternative order for the timeous and effective enforcement of judgment debts.'

The Minister for Finance made submissions to the effect that judgment creditors should approach the national or provincial treasury for the satisfaction of their judgment debts, in the event that the relevant state department fails to do so. The amount paid by treasury would then be set off against the budget allocation of the relevant department for the current or future financial year against the relevant vote. These submissions together with aspects of the submissions of the amici curiae and the intervening party were incorporated into the Court's proposed interim order of 31 August 2009 in its final order of 9 October 2009.

The LRC welcomes the order, which will  mitigate the prejudice suffered by our indigent clients and our inability to recover costs in litigation.