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[2006] ZASCA 49
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MEC for the Department of Welfare v Kate (580/04) [2006] ZASCA 49; 2006 (4) SA 478 (SCA) ; [2006] 2 All SA 455 (SCA) (30 March 2006)

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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Reportable
CASE NO
: 580/04
In the matter between :
THE MEMBER OF THE EXECUTIVE
COUNCIL FOR
THE DEPARTMENT OF
WELFARE
Appellant
- and -
NONTEMBISO NORAH
KATE
Respondent
________________________________________________________________________
Before: HOWIE P, STREICHER,
CAMERON, MTHIYANE & NUGENT JJA
Heard: 2 MARCH 2006
Delivered:
30 MARCH
2006
Summary: Constitutional
right to social assistance – denial of by unreasonable delay –
whether an award of damages an appropriate
remedy.
Neutral citation: This
judgment may be referred to as Member of the Executive Council:
Welfare v Kate [2006] SCA 46 (RSA)
________________________________________________________________________
J U D G M E N T
________________________________________________________________________
NUGENT JA
NUGENT JA
:
[1] Section 27 of the Constitution obliges the state to achieve the
progressive realisation of the right that everyone has to social
security – including, if they are unable to support themselves and
their dependants, appropriate social assistance – by taking
reasonable legislative and other measures within its available
resources towards that end.
[2] On 1 March 1996 the Social Assistance Act 59 of 1992 was brought
into effect. The administration of the Act, appropriately adapted,
was simultaneously assigned to the provincial governments in terms of
s 235(8) of the interim Constitution.
1
Presumably the President and the Premier of the Eastern Cape Province
were satisfied that the government of that province had the
administrative capacity to administer the Act because the assignment
was permitted only if that capacity existed.
2
The Act, as adapted for purposes of the assignment, obliges the
provincial government (subject to the provisions of the Act and the
concurrence of the Member of the Executive Council responsible for
the provincial budget) to make social grants to disabled persons,
amongst others, out of moneys appropriated by the provincial
legislature for that purpose.
3
The MEC has indeed concurred in the making of social grants by the
government of the Eastern Cape and moneys have been duly
appropriated.
[3] The establishment by the state of a legislative and
administrative structure for the making of social grants and the
appropriation
of moneys for that purpose together go a long way to
fulfilling the state’s constitutional obligation but by themselves
they are
not enough. What is required in addition are reasonable
measures to make the system effective. On that score there has been
conspicuous
and endemic failure in the Eastern Cape for a
considerable time.
4
[4] Why that has been so is not altogether clear because the
government has failed to explain it at all in the present case. But
the result has been a plethora of litigation in the High Court
between the poor of that province and the provincial administration.
In some cases the failure of the administration lies in not
expeditiously considering applications for social grants. In other
cases
it lies in not paying what is due to beneficiaries once their
applications have been approved. At times it lies even in disregard
of court orders for the payment of moneys that are due. (One such
case –
Jayiya v Member of the Executive Council for Welfare,
Eastern Cape
5
–
ultimately reached this court and I will refer to it again
later in this judgment.)
[5] What is particularly distressing is that there seems to be no end
in sight. An affidavit deposed to by the attorney for the Black
Sash
(which was admitted as
amicus curiae
in the present appeal)
records that in a period of six weeks during the latter part of 2005
there were almost 2 000 such cases on
the roll of the High Court. On
one occasion Plasket J noted that there were 102 cases relating to
social assistance on his motion
court roll for that week and he went
on to say the following:
‘
If this volume of social assistance cases had been
unique to one week’s motion court roll, it would have been cause
for concern.
Unfortunately, it is a phenomenon that is now common:
the judges of this division, as well as those in the other two
divisions in
the Eastern Cape, have grown accustomed to the
depressing tales of misery and privation contained in an
ever-increasing volume of
cases that clog their motion court rolls in
which applicants complain about administrative torpor in the
processing of their applications
for social assistance. To make
matters worse, this situation is not new. Over the last four or five
years, judges have commented,
often in strident terms, about the
unsatisfactory performance of the respondent’s department in the
administration of the social
assistance system in the province.’
[6] The litigation that has been spawned by this administrative
failure, with adverse implications for the public purse, ought to
be
capable of being avoided in most cases at least, because the rights
that are in issue are usually not in dispute. Typically what
seems to
be occurring is that when a demand upon the administration is ignored
an application to court spews from a word processor,
with adaptations
to meet the particular case, which then induces the administration to
do something, probably through the intervention
of the State
Attorney. The administration then does what it ought to have done at
the outset leaving it for the court merely to order
the government to
pay costs that were avoidable.
6
Another consequence of litigation on that scale – which has a
bearing on the case that is now before us – is that cases are often
commenced without adequate thought being given to the formulation of
the claim. Instead a burst of shrapnel is fired in the general
direction of the government in the hope that somewhere something will
strike home.
7
[7] The case that is now before us is but one in that war of
attrition. Mrs Kate lives in the Govan Mbeki settlement near Port
Elizabeth.
She was 54 years old and disabled when the Act came into
operation and it is evident that she had no means of support. Quite
how
she survived is not apparent from the record but it is safe to
assume that she lived in poverty. On 16 April 1996, soon after the
Act came into operation, she applied for a disability grant.
[8] A person who desires social assistance must apply for it to the
Director-General of the Department of Welfare
8
in the manner prescribed by regulation. If the Director-General is
satisfied that the applicant is disabled then the applicant is
entitled to a disability grant,
9
and the provincial government is obliged to make the grant from the
funds that have been appropriated for that purpose.
10
[9] Regulations were promulgated on the day that the Act came into
operation (the 1996 regulations).
11
The 1996 regulations required an applicant for a grant to complete
and sign an application form in the presence of an attesting
officer,
12
and the date upon which that was done was deemed to be the date upon
which the application was made.
13
If an application for a disability grant was approved it accrued from
the date of attestation (Regulation 10(1)). The 1996 regulations
were
replaced on 1 March 1998 (the 1998 regulations).
14
The 1998 Regulations are material only in so far as Regulation 11
purported to change the date of accrual of an approved grant from
the
date of attestation of the application to the date of approval.
15
That regulation, and the purported repeal of the earlier Regulation
10, were declared to be invalid and were set aside by the High
Court
at Pretoria with the consent of the Minister, and regulation 11(1) of
the 1998 regulations was subsequently amended to restore
the earlier
position.
16
Thus at all times that are material to this appeal Kate’s
disability grant, once approved, accrued from 16 April 1996.
[10] What constitutes a reasonable time for an administrator to
process and approve or reject an application – whether for a social
grant or otherwise – is necessarily relative. Much will depend upon
the nature of the particular application, the enquiries that
need to
be made, the volume of similar applications that need to be dealt
with, the administrative capacity that is available for
processing
such applications, and other matters of that nature. It would be
unrealistic to expect the ideal from an administration
that is no
doubt confronted with complex administrative problems inherited from
the fractured administrative history of the Eastern
Cape, while
simultaneously being called upon to administer a vast new system of
social assistance. A court is bound to take account
of those
realities when determining what ought reasonably to be expected of
the administration. But what is expected of an administration
that
has justifiable reasons for what appears to be unacceptable delay in
carrying out its functions are full and frank explanations
that will
enable a court to assess their adequacy when determining whether the
administration has acted reasonably. In the case that
is now before
us there has been no explanation at all for the delay in considering
Kate’s application. On the contrary, it was
not disputed that it
ought reasonably to have taken no more than three months. Yet it took
forty months before Kate was advised in
August 1999 that her
application had been approved, with no explanation at all for the
thirty seven month delay.
[11] Once Kate was notified in August 1999 that her grant had been
approved it was thereafter paid to her monthly.
17
By that date an amount had accrued to her from the date of her
application. Simultaneously with her first monthly payment Kate
received
part of that accrual – R6 000 – leaving a balance
that was payable. No explanation has ever been given for why that
shortfall
was not paid.
[12] It was only in March 2003 – after she consulted an advice
office of the Centre for Human Rights and was referred to her present
attorney – that Kate became aware that she had been underpaid. On
19 March 2003 her attorney wrote to the Regional Director of
the
Department of Welfare drawing attention to the shortfall and
demanding its payment together with interest on the accrual from
16
April 1996 to date of payment. Receipt of the demand was formally
acknowledged but there was no further response.
[13] On 15 October 2003 an application was launched in the High Court
at Port Elizabeth in which declaratory relief was sought together
with orders for the recovery of the balance of the accrual (the
amount claimed was erroneous) and interest on that amount. No purpose
is served by repeating the bewildering formulation of the interest
claim. What was meant to be conveyed by the claim (and by the
order
that was made, the terms of which are capable of being misunderstood)
– and that is the basis upon which the matter was argued
in this
court – was that Kate should be paid an amount equivalent to
interest at the prescribed rate of 15,5 per cent per annum
on each
monthly amount that accrued to her once the application was approved,
calculated in each case from the date that the particular
amount
accrued, and on the assumption that the first monthly grant accrued
on 15 April 1996, the second on 15 May 1996, and so forth,
until the
relevant amount was paid.
[14] In December 2003 the State Attorney wrote to Kate’s attorneys
advising that the outstanding balance of the accrual was R13 015
and that it would be paid to her when next she collected her monthly
grant. (The outstanding balance was indeed paid to her the following
month and it was accepted before us that the accrual was thereby
discharged.) She was also invited to withdraw the application but
she
declined to do so. Thus the principal issue that remained in dispute
when the matter came before the court below was whether
Kate was
entitled to the interest that she had claimed on the accrual.
[15] The court below (Froneman J) granted certain declaratory relief
and also ordered the appellant to pay the interest that had
been
claimed.
18
(A further order for payment to Kate of R805 was erroneously sought
and granted and has now been abandoned.) This appeal against
those
orders is before us with the leave of that court.
[16] It is not disputed that the declaratory order was properly made
and I need say no more about it. It is also not disputed that
Kate
became entitled to interest at the prescribed rate on the amount of
the accrual, calculated from the date that it became payable
(which I
have accepted for present purposes was the date that Kate was
notified that the grant had been approved)
19
in accordance with ordinary principles relating to unpaid debts. The
submission on behalf of the appellant in that regard was that
the
claim for payment of the accrual, and for interest on it from the
date that it became payable, ought to have been pursued by
ordinary
action in the magistrates’ courts and not by review proceedings in
the High Court.
20
Those claims could indeed have been pursued and recovered in that
manner, and were not properly susceptible to proceedings for review,
but the allegations that were made in the founding affidavit were
nonetheless sufficient for that relief to have been granted on
ordinary principles of law. The court below had concurrent
jurisdiction with the magistrates’ court to entertain and to grant
that
claim and there are no grounds for us to interfere with the
order that it made in that regard.
[17] The real dispute in the present appeal – which the parties
regard as a test case – relates to the remainder of the interest
that was awarded by the court below
i.e. interest during the
period from the date the application was made to the date that Kate
was notified that it had been approved.
(During that period interest
did not accrue to Kate on ordinary principles because the debt was
not yet payable.) Interest during
that period was claimed and awarded
as a measure of constitutional damages for the unreasonable delay
that Kate was constrained to
endure. Kate’s case, put simply, is
that the unreasonable delay in considering her application deprived
her during that period
of her constitutional right to receive a
social grant, and for that deprivation she ought to be recompensed by
an order for damages.
[18] The judgment of the court below is mainly a riposte to this
court’s judgment in
Jayiya
and traverses issues that did not
arise in the case that was before it, which the learned judge freely
acknowledged. He said that
he felt compelled to traverse those issues
because, he said, this court itself went beyond the issues that were
before it in
Jayiya,
with the result that doubt and confusion
has been thrown on what until then had been incremental and cautious
progress by the High
Court in what he described as ‘a kind of
dialogue’ between it and the provincial government to find a way
out of the impasse.
Indeed, one of the reasons that he granted leave
to appeal was ‘to allow for the widest consideration of all the
issues raised
in the judgment [in
Jayiya
]’.
[19] Much of what was said in
Jayiya
was indeed
obiter
and
the
ratio
in that case was decidedly narrow.
Jayiya
decided only that a money judgment given against a provincial
government (which is the construction that was placed upon the
relevant
order)
21
is not enforceable by incarcerating for contempt a defendant who has
been cited nominally for the government if the government fails
to
comply with the order. (The Permanent-Secretary: Welfare, formerly
known as the Director-General, was construed as having been
cited
nominally for the government, although incorrectly.)
22
But I do not think we should accept the invitation extended by the
court below to reconsider that decision or what was said in the
course of deciding it where it is not material to the case that is
now before us. To add to the non-binding statements that were
made in
that case and in the court below will only add to any uncertainty.
[20] To the extent that the court below dealt in its judgment with
the question that is now in issue – whether Kate became entitled
to
‘constitutional damages’ – the learned judge followed earlier
decisions of that court (Leach J) in
Mahambehlala
23
and
Mbanga.
24
(Those two cases were heard simultaneously.)
Mahambehlala’s
case
was materially on all fours with the present case. In that case it
took the administration nine months to approve Ms Mahambehlala’s
application for a social grant when it ought reasonably to have taken
no more than three. As in the present case the grant, once
approved,
accrued to Mahambehlala from the date of the application, but became
payable only on the date of approval. Holding that
the delay
‘resulted in an unlawful and unreasonable infringement of
[Mahambehlala’s] fundamental right to just administrative
action as
set out in s 33(1) of the Constitution’
25
Leach J awarded damages equivalent to interest for the period of the
delay, after saying the following:
26
‘…
[I]t seems to me that, in order to attempt to
place the applicant in the position in which she would have been had
her constitutional
rights not been breached by the tardy manner in
which her application for a social grant was processed, it is
appropriate to order
the respondents to pay interest on the amounts
that she should have been paid as a social grant had it been approved
with effect
from 7 June 2000 [three months after the application was
made] until date of payment. It was common cause during argument that
if
interest was to be awarded, it should be at the current prescribed
rate of 15,5 % per annum. It will be so ordered.’
A similar order was made in
Mbanga
on the same grounds.
[21] In
Jayiya
Conradie JA commented disapprovingly on the
decision in
Mahambehlala,
though he made it clear that the
matter had not been argued and his views were no more than
tentative.
27
(The comments were also
obiter,
directed as they were at the
order that had been made by Moodley AJ, which was not the order that
was on appeal.) Conradie JA was
of the view that the appellant in
Mahambehlala
should have sought her remedy in the Promotion of
Administrative Justice Act 3 of 2000 (PAJA) rather than in the
Constitution,
28
and he was also of the view that PAJA does not allow for the recovery
of constitutional damages.
29
It is not necessary to consider the correctness of those tentative
views in the present case because it is common cause that PAJA
has no
application. (Although reliance was placed on PAJA in the founding
affidavit that was no doubt because the relevant word-processor
was
not aware that it only came into operation long after the material
events had occurred.)
30
But the shrapnel that founded the case encompassed far more than that
and included allegations that were sufficient to dispose of
this case
on the grounds to which I now turn.
[22] In the case that is now before us, following
Mahambehlala
and
Mbanga,
the constitutional breach was held to lie in the
denial to Kate of the process that is promised by s 33(1) of the
Constitution
31
and was promised before that by s 24 of the interim Constitution.
32
In my view that is to approach the matter too narrowly. The
realisation of substantive rights is usually dependant upon an
administrative
process. Rights that protect that process, like those
that are embodied in s 33(1) and s 237
33
of the Constitution and in PAJA, are essentially ancillary to the
realisation of those substantive rights. For without protection
being
given to the process the substantive rights are capable of being
denied. Where, as in this case, the realisation of the substantive
right to social assistance is dependant upon lawful and procedurally
fair administrative action, and the diligent and prompt performance
by the state of its constitutional obligations, the failure to meet
those process obligations denies to the beneficiary his or her
substantive right to social assistance. What has been denied to Kate
is not merely the enjoyment of a process in the abstract, but
through
denial of that process she has been denied her right to social
assistance, which is dependant for its realisation upon an
effective
process. It is the denial of that substantive right that lies at the
centre of her claim.
[23] That the administration of the welfare department of the Eastern
Cape Government acted in breach of its constitutional obligations
and
thereby denied to Kate her right to social assistance is not
contentious. What is contentious is only whether an award of monetary
damages is an appropriate remedy for the admitted constitutional
breach.
Fose v Minister of Safety and Security
34
recognised that in principle monetary damages are capable of
being awarded for a constitutional breach. In that case Ackerman J
made
the following general but important observation in the context
of the interim Constitution:
35
‘
I have no doubt that this Court has a particular duty
to ensure that, within the bounds of the Constitution, effective
relief be granted
for the infringement of any of the rights
entrenched in it. In our context an appropriate remedy must mean an
effective remedy, for
without effective remedies for breach, the
values underlying and the right entrenched in the Constitution cannot
properly be upheld
or enhanced. Particularly in a country where so
few have the means to enforce their rights through the courts, it is
essential that
on those occasions when the legal process does
establish that an infringement of an entrenched right has occurred,
it be effectively
vindicated. The courts have a particular
responsibility in this regard and are obliged to “forge new tools”
and shape innovative
remedies, if needs be, to achieve this goal.’
Earlier the learned judge said the following:
36
‘
It seems to me that there is no reason in principle
why “appropriate relief” should not include an award of damages,
where such
an award is necessary to protect and enforce chap 3
rights. Such awards are made to compensate persons who have suffered
loss as
a result of the breach of a statutory right if, on a proper
construction of the statute in question, it was the Legislature’s
intention
that such damages should be payable, and it would be
strange if damages could not be claimed for, at least, loss
occasioned by the
breach of a right vested in the claimant by the
supreme law. When it would be appropriate to do so, and what the
measure of damages
should be will depend on the circumstances of each
case and the particular right which has been infringed.’
[24] Monetary damages for a constitutional breach have since been
awarded by this court, and endorsed by the Constitutional Court,
in
President of the Republic of South Africa v Modderklip Boerdery
(Pty) Ltd
).
37
In the decision of this court Harms JA said the following:
38
‘
Courts should not be overawed by practical problems.
They should ‘attempt to synchronise the real world with the ideal
construct
of a constitutional world’ and they have a duty to mould
an order that will provide effective relief to those affected by a
constitutional
breach.’
[25] In
Fose
the Constitutional Court emphasised that it was
‘not required to answer the question…whether
an
action for
damages in the nature of constitutional damages exists in law, nor
whether
an
order for the payment of damages qualifies as
appropriate relief…
in respect of a threat to or infringement of
any of the rights in chap 3
’ but was concerned only with the
much narrower task of deciding whether an award of damages was
appropriate in relation to the
particular breach that was there in
issue.
39
Similarly in this case we are not called upon to answer those
questions broadly and in the abstract – and I do not do so – but
only to decide whether the particular breach that is now in issue is
deserving of relief in the form of the monetary damages that
are now
claimed. Whether relief in that form is appropriate in a particular
case must necessarily be determined casuistically with
due regard to,
amongst other things, the nature and relative importance of the
rights that are in issue, the alternative remedies
that might be
available to assert and vindicate them, and the consequences of the
breach for the claimant concerned.
[26] Counsel for the appellant submitted that Kate has delictual
remedies that are sufficiently restorative of any loss that was
caused to her by the failure of the administration to perform its
constitutional duties and that in those circumstances a remedy
of
constitutional damages is not required, a submission foreshadowed in
the following observation by Ackerman J in
Fose
:
40
‘
The South African common law of delict is flexible
and under s 35(3) of the interim Constitution should be
developed by the Courts
with ‘due regard to the spirit, purport and
objects’ of chap 3. In many cases the common law will be broad
enough to provide
all the relief that would be ‘appropriate’ for
a breach of constitutional rights. That will of course depend on the
circumstances
of each particular case.’
[27] The question that submission raises is not so much whether the
remedy that is now proposed is an appropriate one to remedy Kate’s
loss but rather whether a constitutional remedy should be granted at
all. No doubt the infusion of constitutional normative values
into
delictual principles itself plays a role in protecting constitutional
rights, albeit indirectly.
41
And no doubt delictual principles are capable of being extended to
encompass state liability for the breach of constitutional
obligations.
But the relief that is permitted by s 38 of the
Constitution is not a remedy of last resort, to be looked to only
when there is no
alternative – and indirect – means of asserting
and vindicating constitutional rights. While that possibility is a
consideration
to be borne in mind in determining whether to grant or
to withhold a direct s 38 remedy it is by no means decisive, for
there will
be cases in which the direct assertion and vindication of
constitutional rights is required. Where that is so the further
question
is what form of remedy would be appropriate to remedy the
breach. In my view the breach in the present case warrants being
vindicated
directly for two reasons in particular. First, I see no
reason why a direct breach of a substantive constitutional right (as
opposed
to merely a deviation from a constitutionally normative
standard) should be remedied indirectly. Secondly, the endemic breach
of
the rights that are now in issue justifies – indeed, it calls
out for – the clear assertion of their independent existence.
[28] With regard to the form of remedy, counsel for the appellant
urged us to confine it to a declaration that Kate has been
constitutionally
wronged. A declaration of rights is essentially
remedial and corrective and it is most appropriate where ‘it would
serve a useful
purpose in clarifying and settling the legal relations
in issue.’
42
As pointed out by Kent Roach:
43
‘[D]eclarations are well-suited to provide legal and practical
guidance to resolve an underlying dispute and to prevent new ones
from arising’
44
,
and ‘can promote a non-coercive dialogue between courts and
government’
45
in preference to an injunction. But he adds the following important
reservation:
46
‘
An important limitation, however, is that they will
only be successful in obtaining compliance with the Constitution if
governments
and officials comply with them voluntarily, promptly and
in good faith.’
[29] There is not, and never has been, any doubt that the conduct of
the administration that is now complained of is constitutionally
unlawful, and the High Court has all but exhausted its lexicon of
epithets in its attempts to drive that point home so that the impasse
can be ended. I see no purpose in yet another pronouncement to that
effect.
[30] What does warrant serious consideration is whether the remedy of
mandamus,
which was available to Kate to avoid the delay
occurring at all, was sufficient to protect her rights. Section 6 of
the Act properly
construed, read together with the procedural
guarantees in ss 33(1) and 237 of the Constitution, obliges the
Director General
to consider and decide upon an application for a
social grant, and to do so lawfully, procedurally fairly, and with
due diligence
and promptitude. It goes without saying that a public
functionary who fails to fulfil an obligation that is imposed upon
him or her
by law is open to proceedings for a
mandamus
compelling him or her to do so. That remedy lies against the
functionary upon whom the statute imposes the obligation, and not
against
the provincial government. If
Jayiya
has been
construed as meaning that the remedy lies against the political head
of the government department, as suggested by the court
below, then
that construction is clearly not correct. The remarks that were made
in
Jayiya
47
related to claims that lie against the state, for which the political
head of the relevant department may for convenience be cited
nominally in terms of
s 2
of the
State Liability Act 20 of 1957
,
though it is well established that the government might be cited
instead.
48
Moreover, there ought to be no doubt that a public official who is
ordered by a court to do or to refrain from doing a particular
act
and fails to do so is liable to be committed for contempt in
accordance with ordinary principles and there is nothing in
Jayiya
that suggests the contrary.
[31] The remedy of
mandamus
thus has the capacity to be
effective where there is a breach or a threatened breach by a public
official of a duty that is imposed
upon him or her by a statute or by
the Constitution and in most cases that ought to be sufficient
without an additional remedy in
damages. But there are two
considerations in particular that militate against confining Kate to
that preventative remedy. The first
is that it is a remedy that
requires prompt action if the wrong is to be averted before any loss
occurs. The rights that are now
in issue are directed towards the
very poorest in our society, who have little or nothing to sustain
them, and who can be expected
to have little or no knowledge of where
their rights lie nor the resources readily to secure them. It is most
unlikely that Kate
had the capacity or the means that were required
to act swiftly once the delay set in and it would be quite
unrealistic to expect
the remedy to have been effective in her hands.
The second relates to broader considerations. I pointed out earlier
in this judgment
that the problem that was faced by Kate is one that
is endemic in the Eastern Cape. The pattern that emerges from cases
that have
been brought in the High Court is that an application that
has been made by an individual and is being delayed usually rises to
the
surface only when legal proceedings are brought, which must
necessarily mean that at least for the moment similar applications by
others move a step down in the pile. There is no reason to think it
will be otherwise if the individuals concerned seek to enforce
their
rights by proceedings for a
mandamus
, raising the spectre of
even more litigation, with each applicant attempting to leap-frog
over others in order to secure their benefits.
Anything that is
conducive to that occurring is in my view most undesirable. There is
no doubt that the proper resolution lies in
the administration
getting its house in order so that all applications are dealt with
expeditiously rather than in encouraging yet
more litigation.
[32] There is one further matter. It is indeed troubling, as pointed
out by counsel for the appellant, that the public purse, upon
which
there are many calls, should be depleted by claims for damages. If
the provincial administration must seek further funds, in
addition to
those that have been appropriated for providing social assistance, in
order to meet claims for damages, hopefully its
accountability to the
legislature will contribute to a proper resolution. But the cause for
that is the unlawful conduct of the provincial
administration and it
does not justify withholding a remedy.
[33] In my view the only appropriate remedy in the circumstances is
to award constitutional damages to recompense Kate for the breach
of
her right. What remains is how to measure that loss in monetary
terms. It has not been shown that Kate suffered direct financial
loss
and it is most unlikely that she did, for the grant was destined to
be consumed and not invested, but the loss was just as real.
To be
held in poverty is a cursed condition. Quite apart from the physical
discomfort of deprivation it reduces a human in his or
her dignity.
The inevitable result of being unlawfully deprived of a grant that is
required for daily sustenance is the unnecessary
further endurance of
that condition for so long as the unlawfulness continues. That is the
true nature of the loss that Kate suffered.
There is no empirical
monetary standard against which to measure a loss of that kind.
Counsel for Kate submitted that in the absence
of such a measure she
should be awarded an amount equivalent to the interest that is
recognised in law to be payable when money is
unlawfully withheld.
Counsel for the appellant was unable to suggest any more appropriate
measure and I think we ought to adopt it.
Counsel were agreed that
the damages ought not to accumulate such as to exceed the capital
amount.
[34] I intend altering the order that was granted by the court below,
so that the damages will run only from the date that the unlawful
delay commenced and to remove other possible ambiguity, but Kate has
been substantially successful in resisting the appeal and is
entitled
to her costs.
[35] The following orders are made:
1. Paragraph 3 of the order of the court below is deleted and the
following paragraphs are substituted:
‘3.1 The respondent is ordered to pay the applicant interest on the
sum of R13 015 at the prescribed rate of 15,5 per cent
per annum
calculated from 1 September 1999 to the date that the amount was
paid, provided that the total amount of interest shall
not exceed the
capital.
3.2 The respondent is ordered to pay to the applicant damages
equivalent to 15,5% per annum on the amount that had accrued to her
by 15 July 1996, and on each amount that accrued to her monthly
thereafter, calculated from the date that the respective amounts
accrued until 31 August 1999, provided that the damages in each case
shall not exceed the capital amount upon which they are calculated.’
2. Subject to paragraph 1 above the appeal is dismissed with costs
including the costs of two counsel.
___________________
R.NUGENT
JUDGE OF APPEAL
CONCUR
:
HOWIE P)
STREICHER JA)
CAMERON JA)
MTHIYANE JA)
1
Constitution of the Republic of South Africa, 1993. The assignment,
with effect from the date that the Act came into operation,
was
effected by Proclamation R.7 published in Government Gazette 16992
dated 23 February 1996. On 6 September 2004 the proclamation
was
declared to be invalid in
Mashavha v President of the Republic of
South Africa
[2004] ZACC 6
;
2005 (2) SA 476
(CC) but the order of invalidity
was suspended until 6 March 2006.
2
Section 235(8) of the interim Constitution.
3
Section 2(a) of the Act read with the assigning proclamation.
4
The endemic nature of the failure appears from the judgments in a
number of cases that have been decided in the high court of that
province and is commented upon more generally by Clive Plasket ‘The
Exhaustion of Internal Remedies and
Section 7(2)
of the
Promotion of
Administrative Justice Act 3 of 2000
’
2002 (119)
SALJ
50.
5
2004 (2) SA 611
(SCA).
6
Examples are
Ndevu v Member of the Executive Council: Welfare
SECLD Case No. 597/02 undated;
Sikutshwa v Member of the
Executive Council: Social Development
SECLD Case No 847/04 dated
12 May 2005.
7
Examples are
Mfubu v Member of the Executive
Council of the Department of Welfare, Eastern Cape Province
SECLD
Case No 3900/04 dated 3 March 2005;
Nyumbana v Member of the
Executive Council: Welfare
SECLD Case No 3902/04 dated 3 March
2005;
Makalima v Member of the Executive Council: Welfare
SECLD
Case No. 1601/03 dated 27 January 2005.
8
That official, and the relevant department, are
referred to throughout this judgment by their nomenclature at the
time the Act was
assigned.
9
Section 3.
10
Section 2.
11
Regulations Regarding Grants, Social Relief Of Distress And
Financial Awards In Terms Of The Social Assistance Act, 1992,
promulgated
under Government Notice R.373 in Gazette No. 17016 dated
1 March 1996.
12
Regulation 8 of the 1996 regulations.
13
Regulation 9 of the 1996 regulations.
14
Regulations Regarding Grants And Financial Awards To Welfare
Organisations And To Persons In Need Of Social Relief Of Distress
In
Terms Of The Social Assistance Act, 1992, promulgated under
Government Notice R.418 in Gazette No. 18771 dated 31 March 1998.
15
Regulation 11 of the 1998 regulations.
16
Government Notice R.1233 published in Gazette No. 22852 dated 23
November 2001.
17
We were advised by counsel for the appellant that the grant was
approved on 25 February 1999 though Kate was only advised of this
in
August 1999. Counsel were agreed that on a proper construction of
the regulations the date upon which the grant accrued to Kate
was
the date that she was notified that it had been approved, rather
than on the date that it was approved, and I have accepted
for
purposes of this appeal that that is correct, without deciding the
question. The precise date upon which she was notified of
the
approval does not appear from the record and I have assumed in
favour of the appellant that she was notified on 31 August 1999.
18
Reported as
Kate v MEC for the Department of
Welfare, Eastern Cape
2005 (1) SA 141
(SECLD).
19
See footnote 17.
20
Cf
Makalima v Member of the Executive Council: Welfare
SECLD
Case No 1601/03 delivered on 27 January 2005 paras 18 and 19.
21
Paras 5 and 15 read in the context of the
relevant order.
22
Para 16: ‘The person against whom no ‘attachment or like process
shall be issued’ is, of course, the nominal defendant.’
Para 18:
‘The
State Liability Act outlaws
the ‘attachment’ of the
nominal defendant or respondent in proceedings against a government
department. There is nothing that
any evolution of the common law
can do about that.’ The court also observed, incidentally, that
the citation of the Permanent-Secretary
was in any event irregular,
in that the only nominal defendant permitted by the
State Liability
Act was
the relevant Member of the Executive Committee.
23
2002 (1) SA 342
(SE).
24
2002 (1) SA 359
(SE).
25
At 353D-E.
26
At 357G-I.
27
Para 8.
28
PAJA came into operation on 30 November 2000.
Whether it was applicable to events that had occurred before then
was not pertinently
considered in
Jayiya
.
29
Jayiya
, para 9.
30
PAJA came into operation on 30 November 2000.
31
Section 33(1) of the Constitution, which came
into operation on 4 February 1997, read together with s 23(2)(b)
of the Sixth
Schedule, conferred on every person the right to lawful
and procedurally fair administrative action.
32
Section 24 of the interim Constitution conferred
the same rights on every person.
33
Section 237: ‘All constitutional obligations
must be performed diligently and without delay.’
34
[1997] ZACC 6
;
1997 (3) SA 786
(CC).
35
Para 69.
36
Para 60.
37
2004 (6) SA 40
(SCA) para 43;
2005 (5) SA 3
(CC) paras 65 and 66.
38
Para 42.
39
Para 20.
40
Para 58. See, too, the observations of Kriegler J at para 98.
41
Cf.
Minister of Safety and Security v Van Duivenboden
2002
(6) SA 431
(SCA) para 17;
Minister of Safety and Security v
Carmichele
2004 (3) SA 305
(SCA) para 34 and 37.
42
Edward Borchard
Declaratory Judgments
2 ed
299 quoted in Kent Roach
Constitutional Remedies in Canada
12-3.
43
Kent Roach
Constitutional Remedies in Canada
.
44
Roach, footnote 29, 12-11.
45
Roach, above, 12-20.
46
Roach, above, 29, 12-5.
47
Para 5.
48
See, for example,
de Klerk v Union Government
1958 (4) SA 496
(T);
Swart v Union Government
1948 (3) SA 149
(T);
Muller
NO v Government of the Republic of South Africa
1980 (3) SA 970
(T);