By Michele van Eck

In the case of Nyathi v MEC for Department of Health, Gauteng and Another 2008 (5) SA 94 (CC) s 3 of the State Liability Act 20 of 1957 was declared invalid as it did not allow for an effective procedure for the satisfaction of judgment debts against the state. The order of invalidity was suspended for 12 months and on 9 October 2009 the Constitutional Court provided guidelines for the satisfaction of judgment debts against the state until the State Liability Act was amended.

On 21 August 2011 the State Liability Amendment Act 14 of 2011 (the Amendment Act), which regulates the manner in which final court orders sounding in money against the state must be satisfied, was assented to.

The Amendment Act introduced two additional requirements when instituting an action against the state, namely:

• Where it was previously optional, now the Minister of the executive authority of the relevant department must be cited as a nominal defendant or respondent.
• Within seven days after proceedings are instituted a copy of the summons or notice must be served on the state attorney.

The Amendment Act sets out three stages for the satisfaction of judgment debts against the state. Each stage provides for instances of non-payment until, finally, stage three culminates in the attachment of movable property of the state. These stages must be followed sequentially and are summarised as follows:

Stage 1:

The relevant department must ensure that payment of the money is satisfied within 30 days from the date that the court order becomes final, or within a time period agreed on with the judgment creditor and the accounting officer of the relevant department (s 3(a)).

Stage 2:

If payment is not made within the 30 days, or as agreed, then the judgment creditor may, in order to enforce the judgment, serve the court order on –

• the executive authority;
• the accounting officer of the relevant department;
• the state attorney or other attorney acting for the department concerned; and
• the relevant treasury (s 4).

The relevant treasury must within 14 days of service of the court order ensure that the judgment debt is satisfied or, should there not be sufficient funds available, make payment within the time frame agreed on with the judgment creditor (s 5).

Stage 3:

If payment is not made within the 14 days, or as agreed, then the judgment creditor may issue a writ or warrant of execution in terms of the rules of the applicable court against the department. Such a writ or warrant can only be made against movable property owned by the state and used by the relevant department (s 6).

Once the writ or warrant is issued, the sheriff may attach the movable property but may not remove it (s 7(a)). The sheriff and the accounting officer of the department can agree on which property may not be attached or removed because it will severely disrupt service delivery, threaten life or put the security of the public at risk (s 7(b)). If no agreement is reached, then the sheriff may attach any movable property that will satisfy the judgment debt (s 7(c)).

After 30 days from the date of attachment, the sheriff may remove and sell the attached property in execution of the judgment debt. The normal rules of court will apply in this regard (s 8).

Should a party with a direct or material interest in the matter believe that the attachment and removal would severely disrupt service delivery, threaten life, put the security of the public at risk or would not be in the interests of justice, then such a party may apply to court for a stay before the sale of the attached property (s 10).

In conclusion, the Amendment Act now provides sufficient clarity on the manner in which court orders sounding in money can be enforced against the state.

Michele van Eck BCom (Law) (RAU) LLB LLM PG Dip Draft and Interp Contracts Dip Corp Law (UJ) is a legal specialist at Wings Travel Management in Johannesburg.

This article was first published in De Rebus in 2012 (March) DR 17.