Legal victory came too late to save father s life

François Rank

Published:Jun 08, 2008

Constitutional Court strikes down law that denied justice to Dingaan Nyathi.

IF the Gauteng Health Department had paid the money it owed Dingaan Nyathi, chances are he would still be alive.

Instead he succumbed to a succession of illnesses while his case was entangled in legal proceedings that were finally settled in a ground-breaking Constitutional Court decision this week.

The highest court in the land on Monday declared unconstitutional Section 3 of the State Liability Act — which forbids the seizure of state property in order to recover debt.

It is a decision that will help hundreds of people battling to get their money from the government, but it came too late for Nyathi.

During judgment, the Constitutional Court gave the State Attorney s office, which handles all cases against the state, until the end of next month to establish how many litigants are still waiting for money awarded by the courts.

The State Attorney s office must also inform the court how and when it will pay these people.

Judge Tholie Madala also gave Parliament 12 months to pass laws that will provide effective ways of enforcing financial judgments against the state.

While researching Nyathi s case, lawyer Adele van der Walt asked provincial law societies to contact their members and let her know of similar matters. In one week, she learned of 200 which, she said, was “by no means a complete and comprehensive” list.

Nyathi, a packer at a Pretoria supermarket, and his wife, Angie, who made pizzas at a restaurant in the city, did their best to raise their young family in Nellmapius, a township outside Pretoria.

In 2004, Nyathi, in his 30s, was burned in an accident with a primer stove and was so severely injured that doctors at the Pretoria Academic Hospital could not insert a drip into his arm and had to insert it in his neck instead.

But they inserted the needle into an artery instead of a vein, and it was days before the error was noticed.

By then, Nyathi had been transferred to the nearby Kalafong Hospital. When doctors there removed the drip, they dislodged a blood clot which shot up to his brain and caused a stroke leaving him paralysed on one side.

Nyathi could not afford the treatment and rehabilitation that could have saved his life. Van der Walt said Nyathi s family was devastated.

“Angie had a very hard time. They had three little children all under the age of six when it happened,” Van der Walt said.

“She had to work her shifts at night, then she had to go back and look after him as well as the children.”

In 2005 Van der Walt began legal action against the Gauteng Health Department, which admitted the doctors mistakes even before the case went to trial.

Thinking it would soon be over, Van der Walt applied for an interim payment so her client would have something to live on, and the Pretoria High Court granted an order of R317000 in November 2006.

But the state did not pay.

The following February, Van der Walt returned to court saying she could not force the state to pay as the State Liability Act prevented her seizing government s assets to recover the money.

She argued that the Act was unconstitutional, the court agreed, and the matter was referred to the Constitutional Court for final arbitration.

But still the state did not pay.

Last May, during an emergency hearing, Constitutional Court Chief Justice Pius Langa ordered Gauteng Health MEC Brian Hlongwa to pay the interim amount.

“It was really a circus. They arranged for the payment and it reflected in our trust account a few days thereafter — but only because we approached the Constitutional Court,” Van der Walt said.

Later that month, the Pretoria High Court awarded Nyathi R2.5-million in damages and the money was finally paid on June 25 2007.

Nyathi died two weeks later.

The judgment was welcomed by SA Law Society co- chairman Vincent Saldanha, who said: “I think it is important because it upholds the rule of law but, most importantly, it also holds the state accountable.”

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Monday, June 09, 2008 | 15:21 WIB 232