Contempt of court or contempt of rights The flood

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Contempt of court or contempt of
rights? The flood of litigation against the
KwaZulu-Natal MEC for Social Welfare
Daisy Sridutt, Durban Bar

        ection 27(1)(c) of the Con-          is competent to exercise that function
        stitution provides that everyone     in terms of the spirit and intention of
        has the right to have access to      the Act.’
social security including, if they are       Combrink J had regard to the impor-
unable to support themselves and their       tance of the fundamental right con-        Daisy Sridutt has been practising at the
dependants, appropriate social assis-        tained in section 27 of the Constitution   Durban Bar for seven years.
tance. Section 27(2) provides further        and held that this constitutional right
that the State must take reasonable          is the ‘lifeblood of the poorest of the    Once all the costs in respect of these
legislative and other measures within        poor’ and if one had to deprive the        applications lodged with the depart-
its available resources to achieve the       poor of such a right one would have to     ment have been finally paid, this will
progressive realisation of each of the       accept that they ‘would go hungry in       amount to approximately R42,9 million
rights contained in section 27.              certain instances.’                        as at 31 December 2004. Now this, of
The Social Assistance Act 59 of 1992                                                    course, does not take into account the
                                             Combrink J had attended a meeting
as amended (the Act) is legislation as                                                  18 000 cases that are currently awaiting
                                             with the State Attorney’s office two
contemplated in terms of section 27(2)                                                  enrolment, and once the costs in respect
                                             years previously at which it was agreed
of the Constitution.                                                                    of these applications have been paid,
                                             that the State Attorney would no longer
There has been a surge of applications                                                  and taking into account the fact that the
                                             file Notices of Opposition which were
before the High Courts in Kwazulu-                                                      figures in respect of legal costs will be
                                             only being filed as a matter of course.
Natal by applicants for social grants,                                                  slightly higher, this would amount to
                                             He held that ‘it simply amounted to an
seeking to enforce their rights in terms                                                approximately R133,6 million.
                                             abuse of court process, nothing more,
of the Act.                                  nothing less and was, in fact, premised    The court reached the inevitable con-
In March 2005, Combrink J in Machi v         upon a fiction, namely that there was,     clusion ‘that the Department in its func-
MEC for Social Welfare and Population        as the notice pretended, a defence being   tions under the Act is being misman-
Development KwaZulu-Natal (unre-             raised to the applications.’ He also       aged on a gross scale. Incompetence
ported; case number 4392/2004), issued       pointed out that as at 8 March 2005        in the Department appears rife. There
an order directing the Member of the         only one of the 26 000 applications        is an inability, it seems, to deal with
Executive Council charged with Social        of this kind instituted in this division   the subject matter which is entrusted
Welfare and Population Development           since 2000 had gone forward opposed,       to them by the people of this country
(the MEC) to pay the costs de bonis          and accordingly drew the inference         embodied in the instructions contained
propriis of certain of these applica-        that there simply was not and could        in the Social Assistance Act 59 of 1992,
tions.                                       not have been a defence to the cause of    as amended.’
The various interested parties (namely       actions that had been raised by each of    The only remedy available to the court
the welfare services, the State Attorney’s   the applicants.                            was to direct the MEC to bear the costs
office as well as the MEC’s office)          Upon a perusal of the Machi judgment,      of these applications de bonis propriis.
were given an opportunity to make rep-       it is clear that in 2004 alone, 6 500      Within the department 16 000 appeals
resentations before Combrink J prior to      cases were registered for enrolment in     were outstanding as at March 2005.
his handing down judgment. The prin-         the Natal Provincial Division. In the      Combrink J found that an appeal is
cipal points of opposition advanced by       Durban and Coast Local Division (the       a ministerial function and that if it
the MEC was that he had delegated his        DCLD), 12 000 such cases had been          comes to the MEC himself ‘and if he
powers in respect of the applications        lodged and were awaiting enrolment.        delegates to a person who cannot man-
to officials in his employ; that many of     Applicants were being delayed and          age it or incompetently manages it, it is
these officials were involved in fraudu-     their constitutional rights were as a      the respondent’s (MEC’s) responsibil-
lent activities within the department;       result being infringed.                    ity at the end of the day. He is either
and peripheral issues pertaining to the      Combrink J found that this situation       negligent in allowing it to remain with
AIDS pandemic.                               was untenable and that he could not        the person he delegated the power to
In arriving at his judgment, Combrink J      allow it to continue where an appli-       or for not following it up and check-
found that the MEC could delegate his        cant’s constitutional rights had been      ing the performance of that person.’
power but that if he ‘divested himself of    violated and thus to make himself a        On the basis of the further fact that
the statutory power, he had better make      party to the violation of such funda-      there were these 16 000 appeals which
certain that he to whom he entrusts that     mental right.                              had been left unattended, the costs

December 2005         ADVOCATE                                                                                          39

order on the scale de bonis propriis was      least a year going to and from the district   this opportunity to curtail the costs of
visited upon the MEC.                         offices of the department, every time         these proceedings. Occasionally, the
The decision in Machi is currently on         being reassured that their application        MEC is placed on terms to file his
appeal.                                       will be processed and considered              opposing affidavit by a specific date.
I propose now to deal with the con-           by the following month. This blasé            He frequently fails to file an affidavit
sequences of the Machi judgment and           attitude towards the constitutional right     and then seeks the indulgence of a
the state of play of the current matters      to social assistance is unacceptable.         further adjournment at the taxpayer’s
against the MEC’s office in Natal, and,       The situation in the Natal Provincial         expense.
in particular, the impact of the judgment     Division has improved markedly;
                                                                                            I am aware of an instance when the
of Combrink on the number of applica-         however, MEC matters currently in the
                                                                                            Department of Social Welfare delivered
tions and the stance now taken by the         DCLD warrant criticism.
                                                                                            a response to an applicant directly,
respondent in these applications.             Applicants are now being met with a           advising that a grant had been approved
There seems to be a perception that           defence on the part of the department that    whilst the MEC’s legal representatives
applications of this nature form part of      the applicant never made an application       filed a Notice of Intention to Oppose
a cottage industry and that attorneys for     and that the MEC requires a copy of           together with a letter that the matter
the applicants have been the only par-        the receipt issued to the applicant.          was under forensic investigation. It is
ties to flourish from this. I beg to differ   Alternatively, the opposition raised is       this lack of communication between
in this respect particularly as the MEC       that the applicant has failed to comply       the MEC and the employees in his
has seen fit to ‘de-brief’ the offices        with the time periods provided for in the     department which has unnecessarily
of the State Attorney and to instruct         Institution of Legal Proceedings Act 40       increased the legal costs in this
private attorneys to attend to these mat-     of 2002. The receipts are often annexed       application. Yet the MEC’s legal
ters on his behalf. This has been done        to the supporting affidavits; however,        representatives seize every opportunity
at the expense of the taxpayer bearing        one often finds despite the fact that         to place on record that applicant’s
in mind that every appearance in court        application papers are served on the          attorneys are motivated by the costs
is made by those briefed by the MEC.          MEC’s legal representatives, the legal        generated in these applications. This
This duplication has increased the costs      representative are not in possession of       argument ignores the fact that the
for the State and ultimately for the          the application papers at the time that       costs are escalating as a result of the
taxpayer and contributes to significant       the matter is being heard. The MEC’s          dilatory stance taken by the MEC and
cluttering of the motion court roll.          legal representative then asks that all       by the MEC’s insistence that he be
In a number of these applications, an         MEC matters be stood down to allow            represented at the taxpayer’s expense
affidavit is filed on behalf of the MEC       him to take instructions. Most, if not        in every matter and at every appearance
calling for a period of 90 days within        all, of these applications are served         irrespective of whether or not an order
which to file a proper opposing affida-       upon the MEC at least three months            is being sought by consent. Certainly,
vit, and is premissed on the basis that       before the date of hearing, yet he fails      the MEC’s legal representatives are not
these matters are subject to forensic         to provide his legal representative           acting on a charitable basis.
investigation. I have yet to see an affi-     with instructions until the morning the
                                                                                            The highwater mark of the MEC’s
davit dealing specifically with allega-       matters are to be heard.
                                                                                            defence is usually premissed on the
tions of fraud in a matter that has been      The applicants generally utilise              argument that applicants are obliged
under forensic investigation from at          the long form of Notice of Motion             to comply with the Institution of Legal
least December 2003. In other matters,        providing time periods within which           Proceedings against Certain Organs of
files had been removed from official          the MEC is to file his Notice of              State Act 40 of 2002. The basis of this
custody for forensic investigation but        Intention to Oppose and subsequently,         being that the applicants have filed to
no explanation can be proffered by the        his Opposing Affidavit. The MEC is            institute legal proceedings within six
MEC as to why copies are not made. As         given generous periods within which           months of becoming aware of the debt
a result, the MEC pleads that it has no       to consider each of these applications.       and that the applicants have failed to
record of the matter.                         Despite this, the MEC does nothing to         give the MEC 30 days notice of their
It has taken the Department of Social         curtail his legal expenses and usually        intention to launch proceedings. The
Welfare and Development at least three        his legal representative appears on           MEC fails to deal at all with the merits
years in some instances to consider           the date allocated for hearing and            of each application and purports to
grant applications. This is grossly           asks for an opportunity to consider           rely solely on the applicant’s non-
unacceptable as these applications are        the application without even filing a         compliance with the provisions of
brought by the ‘poorest of the poor.          Notice of Intention to Oppose.                the Institution of Legal Proceedings
’In other instances, the Department of        The lackadaisical attitude of the MEC         against Certain Organs of State Act
Social Welfare issues applicants with         in opposing these matters is mulcting         40 of 2002. This is his sole defence
receipts calling upon them to return          the taxpayer with unnecessary costs.          in these applications. This technical
three months after they have made their       If applicants are giving the MEC              defence will be tested in due course
applications to ‘receive the reply to their   generous time periods within which            when (if) these matters are heard on the
application.’ Applicants then spend at        to file, he should take advantage of          Opposed Roll.

40                                                                                             ADVOCATE          December 2005

One cannot only criticize the attitude       Court to ensure compliance on the part        debts sounding in money against the
of the MEC without taking into               of the provincial government with its         State were not paid. See in this regard
consideration the fact that the court        constitutional duties of efficient and        Mjeni v Minister of Health and Welfare,
has on various occasions criticized the      accountable public administration.            Eastern Cape 2000 (4) SA 446 (Tk)
drafting of the affidavits by certain        Froneman J found that ‘individual             and East London Transitional Local
applicants’ representatives on the basis     public responsibility, in contrast to         Council v MEC for Health, Eastern
that such affidavits are precedent-          nominal political responsibility, could       Cape 2000 (1) AllSA 443 (Ck).
generated and often do not make out a        be enhanced by enforcing individual           Froneman J found that ‘ to hold in the
case for the relief that is being sought     public officials to explain and account       face of all that a public state functionary
by the applicant.                            for their own actions, as parties to the      exercising public power cannot be held
The MEC very rarely tenders to pay           litigation. When they acted wrongfully        individually accountable for his or
the wasted costs occasioned by any           the poor and disabled applicants could        her public duties in Court, is almost
adjournment as a result of his dilatory      be compensated by being paid what             inconceivable.’
conduct which results, in particular, in     they should have received in the first        Froneman J went on further to state ‘it
the DCLD with the court being seized         place. And if, nevertheless the State         is one thing to realize the possibility as
with a number of frivolous arguments         failed to comply with the court order         a matter of fact that the Government
by the MEC’s representatives as to why       of payment, then the possibility of           might refuse to comply with Court
the MEC ought not to be directed to          committal for contempt of court, or           orders. It is something completely
pay the wasted costs occasioned by the       at least a declaration to that effect,        different to hold as a matter of law and
adjournment.                                 could help individual public officials to     that courts are powerless to devise ways
As pointed out by Combrink J, it is          pay heed to their constitutional public       to ensure compliance of court orders in
quite clear that when one accepts the        duties.’                                      a constitutional State such as ours.
position to act in a particular office and   The court correctly pointed out that          In the former case the Government
then elects to delegate his powers to        the formality of the law on occasion          would, in refusing to comply with court
another individual, he must accept the       ‘serves to hide the underlying practical      orders, place itself outside the ambit
consequences of such a delegation. The       inequalities.’ The court, in substantiation   of Constitutional Government and that
only way to ensure that an individual        of this, used the example that if one had     constitutional crisis could be created.
will act responsibly and transparently       to apply the interpretation of Jayiya,        For the Court to do the latter would
is to ensure that he is accountable to       it would mean that until this ‘issue          be to aid and abet unconstitutional
the public and his office by making          rears its head before the Supreme             government, the very antithesis of the
him personally responsible for any           Court of Appeal, that persons such            Court’s duty in terms of the Constitution.
costs that had been occasioned by his        as the applicant in the present case          If the interpretation of Section 3 of the
failure to carry out his statutory duties    would have to be told that the court          State Liability Act in Jayiya means that
as envisaged in terms of the relevant        cannot assist them in the form of             the Government is not bound to comply
Acts.                                        ordering financial compensation. If           with court orders sounding in money
It appears that the situation in the         public officials do not do their jobs         or the Courts cannot devise other legal
DCLD has not improved at all since           properly and even in the event that the       means to ensure compliance of court
Combrink J’s judgment. The present           courts do order compensation there            orders, then there is no possible way
situation calls for measures to be put       is nothing legally that can be done           that I can think of how Section 3 of the
into place to hold the relevant officials    if the State functionaries neglect, for       State Liability Act, if interpreted in this
responsible for failing to carry out         whatever reason to give effect to such        manner, can serve the Rule of Law and
their statutory duties timeously. As         an order.’ This of course would be of no      the Court.’
matters presently stand, the only losers     assistance to persons such as applicants      Froneman J quite correctly pointed out
in matters involving the MEC are you         who rely solely upon disability grants        that the judges of the High Court were
and I, the taxpayers.                        for a living and cannot afford to fund        obliged to follow the interpretation
One of the difficulties one may              their appeal out of their ‘own pockets.’      of authority ‘that in their serious and
encounter is that the MEC may be             We must be wary of perpetuating a fast-       considered opinion would serve the
able to raise the defence that the State     growing perception amongst the poor           Constitution and the Rule of Law
Liability Act 20 of 1957 affords him         that the rule of law has failed them and      best.’
exemption from execution.                    that this failure acts as an impetus to       Until the State Liability Act is revisited
In the judgment of Froneman J in Kate        the conduct of the public functionaries       and the line taken as referred to by
v MEC for Department of Welfare,             who believe that they are able to ‘flout      Froneman J to declare officials to be in
Eastern Cape 2005 (1) SA 141 (SE)            their public responsibilities’ without        contempt of court, it appears that the
the court examined the extent to which       any repercussions.                            MEC for Social Welfare and Population
the Supreme Court of Appeal in Jayiya        The courts had previously declared            Development will continue to act with
v MEC for Welfare, Eastern Cape 2004         the MECs of various departments               impunity, to the detriment of those
(2) SA 611 (SCA) impacts upon the            and other public functionaries to be          people whose rights are entrenched in
efforts being put into place by the High     in contempt of court where judgment           the Constitution.

December 2005         ADVOCATE                                                                                              41