(b) the right of access to Courts since "deliberate non-compliance with, or disobedience of, a court order by
the State detracts from the dignity, accessibility and effectiveness of the courts". Indeed, the right of access
to Courts obliges the State to ensure the enforceability of Court orders - vide paragraphs 40 and 43.
The Court stated at paragraph 18 that the State liability Act "is a relic of a legal regime which was
pre-constitutional and placed the state above the law: a state that operated from the premise that "the king
can do no wrong". That state of affairs ensured that the state and, by parity of reasoning, its officials could
not be held accountable for their actions" (the emphasis is ours).
The Constitutional Court also considered at paragraph 50 that these violations constituted unreasonable
and unjustifiable limitations to the human rights involved and that "the more substantial the inroad into
fundamental rights, the more persuasive the grounds of justification must be..." The Court then explained at
paragraphs 51 and 52 that "section 3 serves to protect the state interests by disallowing attachment as it
has the potential to disrupt service delivery and interfere with the state's accounting procedures. The Act
does purport to make the state liable for judgment debts that accrue against it. However, the processes
involved in gaining satisfaction of such debts are not in place. The doors are closed before compliance has
been achieved."
The Court went on to remark at paragraph 79 on the practical effect of section 3 as follows "The practical effect of section 3 is that the state cannot be forced to honour court orders as there is no
manner in which compliance can be enforced. In the result, the ordinary citizen has no effective remedy
available in a situation where the state and its officials fail to comply with a court order."
The Court tellingly rejected at paragraphs 75 and 79 an argument to the effect that since a judgment
creditor could seek a mandamus or, for that matter, initiate contempt of court proceedings, the restriction or
execution against state assets was justified. The Court stated that such an argument ignored the harsh
realities of litigation with its risks and expenses.
We would also refer to Article 26
× All persons are equal before the law and are entitled without any discrimination to the equal protection of
the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
of the Covenant which states as follows "All persons are equal before the law and are entitled without any discrimination to the equal protection of
the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status."
The Human Rights Committee has explained the provisions of Article 26
× All persons are equal before the law and are entitled without any discrimination to the equal protection of
the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
in its General Comment No. 18 on Non-Discrimination:1989/11/10, C.C.P.R. at paragraphs 7 and 12 as
follows:
"The Committee believes that the term "discrimination" as used in the Covenant should be understood to
imply any distinction, exclusion, restriction or preference which is based on any ground such as race,
colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other
status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise
by all persons, on an equal footing, of all rights and freedoms."
". . . Article 26
× All persons are equal before the law and are entitled without any discrimination to the equal protection of
the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and
effective protection against discrimination on any ground such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status.
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