It’s been a busy week for the Constitional Court, and with four judges handing down their last decisions, they kept some of the most important stuff for last. Perhaps most important is the full written judgment on the Nyathi Case. It’s an issue that could see government pit itself against the Court in the near future, and how the Executive handles itself in that conflict could be key in how the Zuma administration is remembered.

Nyathi is as complex as anything that has come before the Court. In essence, the case revolves around whether ordinary people can attach state assets, if they’ve successfully sued the state and the relevant office refuses to pay up. The original claimant won substantial damages following a botched operation in a Gauteng hospital. The province’s health department refused to pay up, and then refused to allow him to attach some movable assets. At the time, there was a law dating back to the 1950s on the books, saying assets belonging to National and Provincial governments were immune from attachment. Local government is another matter.

When this case first came before the judges in 2008, they said the law was unconstitutional, and gave government a year to sort out the mess. In August this year, government asked for a two-year extension. At the time, it was granted, but the full reasons were not given, because the written judgment on the case was not ready. It was up to the court to clean it all up.

In the meantime, a parliamentary bill was discussed, that could see an amendment to the Constitution, to make it constitutional to stop state assets being attached. In other words, a possible back door to getting around the Constitutional Court’s Nyathi Judgment.

As a result of all of this, the judges asked for submissions from interested parties, including the National Treasury, on how to clear a way through the impasse.

On Friday, they handed down their full written judgment, and set out provisions for how people can attach assets for the moment.

The court has threaded the needle carefully, allowing for the attachment of assets, but also making sure there are safeguards to ensure that, say, essential hospital equipment isn’t sold to pay debts. The judges say people owed money must first approach the relevant department. If the department doesn’t roll over then it’s off to either the national or provincial treasury. Two weeks later you get a court order attaching movable goods. But the sheriff only takes the items a month later. In those thirty days, someone with a “direct interest” can object to the attachment if it’s “not in the interests of justice”. In other words, a hospital patient could stop someone taking the X-ray machine.

However, this order will only stay in place for the next two years, or until Parliament passes the relevant legislation. The necessary bill is now in the public participation phase. And it’s the bill that, as the possible final word, that will be the most interesting. Government will have a million reasons as to why its assets should not be attached. It will claim it can not function on such a basis, that police cars should not be taken away, and that government has a right to its assets. Which leaves you up the creek minus paddle if you are owed a large sum and government simply doesn’t pay.

So, assuming that law is passed, the Constitutional Court is likely to argue that someone who has won a court judgment against government should be allowed their compensation. And if goods cannot be attached what else is there? We like the personal alternative: hold the office bearer responsible for the court-order payment in contempt of court, and make sure that carries jail time. Problem solved.

By Stephen Grootes

(Grootes is EWN reporter,www.ewn.co.za)