State liability Bill unconstitutional - expert

The State Liability Amendment Bill came about when the Constitutional Court in 2008 struck down elements of the original Act and gave the state 12 months to correct the law. The court found the law discriminated against ordinary citizens because they could not attach state property when the state failed to pay its debts. The amendments before the committee allow movable state property to be sold in execution, but only if the sale does not harm service delivery or put national security at risk. Alasdair Sholto-Douglas, in a submission for the General Council of the Bar, said the restriction on immovable property was arguably unconstitutional because 'such restriction discriminates against ordinary citizens and may - depending on the peculiarity and nature of movables belonging to the state - still leave ordinary citizens in no better a position unless they can also execute against immovable property belonging to the state'. Commenting on the service delivery and national security exclusions, Sholto-Douglas said 'the issue that arises is how, why and when the ordinary citizen must know that execution against movables of the state would severely disrupt service delivery, threaten life or put the security of the public at risk?' Full Business Day report Draft State Liability Amendment Bill (PDF file)