James Wewege, a pre-final year BAccLLB student, recently
provided the parliamentary portfolio committee for Justice and Correctional
Development with his written submission in respect of the proposed State
Liability Amendment Bill. These submissions are based on research completed for
a LLB dissertation under the supervision of Dr Bernard Wessels (Department of Private Law). The committee invited
James to present his submission in parliament on Wednesday 31 October 2018.
In summary, his submission had three key points. Firstly, James
highlighted that, in terms of the proposed section 2A(3) of the Bill, periodic
payments are subject to an annual increase in terms of the Consumer Price Index
(CPI). He suggested that the Bill should make use of a more suitable
alternative measure to allow for the function of accuracy, costs and
practicality as the CPI may not be appropriate in the current circumstances.
Secondly, according to the proposed section 2A(2)(b), a victim of harm arising
from medical malpractice in the public healthcare sector will be directed to a
public health establishment for medical services. However, the current
reference to “public health establishment” is singular and not plural, which
may give rise to unwarranted adverse consequences. In addition, constitutional
rights such as the rights to freedom of trade, residence, movement and
occupation may be infringed in the process. He provided alternative wording for
the proposed Bill, which, if accepted, may avoid the violation of
constitutional rights and provide greater certainty to future litigants and
courts that adjudicate on this issue. Lastly, in terms of the proposed section
2A(2), a successful medical malpractice litigant may be asked to pay tax on the
periodic payments which the state is obliged to make. Therefore, the tax
treatment of the periodic payments requires thorough investigation in order to
avoid any adverse implications for successful litigants who have already
suffered harm at the hands of state malpractice. Essentially, James proposed an
amendment to the Income Tax Act to avoid such adverse consequences.
James and Dr Wessels will convert these submissions, together
with other research on the topic of state liability, into a full-length
peer-reviewed academic article. In this way, James has contributed to the
academic development of this area of the law, while also taking part in the
formal process of law-making and providing valuable practical suggestions that
may improve the current state of affairs.
The Faculty is very proud of his efforts!