Minister for Justice and Constitutional Development v Nyathi

In Nyathi I, the Constitutional Court declared section 3 of the State Liability Act 20 of 1957 unconstitutional because it barred execution or attachment against the state and failed to provide an effective mechanism for satisfying judgment debts sounding in money. The declaration of invalidity was suspended for 12 months to allow Parliament to enact remedial legislation. Parliament failed to do so within the prescribed period. On the eve of the expiry of the suspension period, the Minister for Justice and Constitutional Development urgently applied for an extension of the suspension, citing delays caused by elections, interdepartmental consultations, and legislative workload. Several amici curiae and the Law Society of South Africa opposed the extension, arguing prejudice to judgment creditors and ongoing violations of the rule of law.

The period of suspension of the declaration of invalidity of section 3 of the State Liability Act was further extended until 31 August 2011. The Court invited further submissions on, and subsequently put in place, an interim procedure permitting the attachment and execution of certain state-owned movable property for the satisfaction of judgment debts during the extended suspension period.

This case underscores the Constitutional Court’s supervisory role over compliance with its orders and Parliament’s constitutional obligations. It reinforces the supremacy of the Constitution and the rule of law by emphasising that the state is bound by court orders and must provide effective mechanisms for their enforcement. The judgment is significant for developing interim constitutional remedies that protect rights while allowing space for legislative correction.