James Wewege – Submission to Parliament on the proposed State Liability Amendment Bill

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. 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!


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