MEC for the Province of KwaZulu-Natal Responsible for Social Welfare and Development v Machi and Others (333/05) [2006] ZASCA 78; [2006] SCA 83 (RSA) (31 May 2006)

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[2006] ZASCA 78
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MEC for the Province of KwaZulu-Natal Responsible for Social Welfare and Development v Machi and Others (333/05) [2006] ZASCA 78; [2006] SCA 83 (RSA) (31 May 2006)

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THE
SUPREME COURT OF APPEAL
OF
SOUTH AFRICA
Case
No: 333/05
Reportable
In
the matter between
THE
MEC FOR THE PROVINCE OF
KWAZULU-NATAL
RESPONSIBLE FOR
SOCIAL
WELFARE AND DEVELOPMENT Appellant
and
Q
T MACHI & OTHERS
Respondents
Coram:
HARMS, SCOTT, MTHIYANE, LEWIS JJA et
MAYA AJA
Heard:
11 May 2006
Delivered:
31 May 2006
Summary: Whether an order of costs
de bonis propriis
suspended pending the furnishing of further affidavits is appealable.
Neutral citation: This judgment may be referred to as
MEC: Welfare (KZN) v Machi [2006] SCA 83 (RSA)
JUDGMENT
MAYA
AJA
MAYA AJA
[1] Section 27(1)(c) of the Constitution confers a right
on every person ‘to have access to social security, including, if
they
are unable to support themselves and their dependants,
appropriate social assistance’. Subsection (2) enjoins the State to
‘take
reasonable legislative and other measures, within its
available resources, to achieve the progressive realization of [this
right]’.
[2] The Social Assistance Act 59 of 1992 (‘the Act’)
requires the Minister for Welfare and Population Development, with
the concurrence
of the Minister of Finance, amongst other things to
make social grants, grants-in-aid, supplementary grants, child
support grants,
foster child grants and care-dependency grants out of
monies appropriated by the Provincial Legislature. The administration
of the
whole Act (excluding s 13) was assigned to the provinces by
Proclamation R7 of 23 February 1996. Accordingly, applications for
social
and child-support grants have to be made to the relevant
director-general of a province who must be satisfied,
inter alia
,
that the applicant complies with the prescribed conditions. If an
applicant is aggrieved by a decision of the director-general,
the
applicant may appeal to the relevant provincial member of the
executive council.
[3] Delivering on this constitutional obligation and
applying the provisions of the Act seems to have been a monumental
challenge
for the various provincial welfare departments also in
KwaZulu-Natal (‘the department’). In the judgment delivered by JH
Combrink
J, sitting in the Pietermaritzburg High Court, it emerged
that the Pietermaritzburg and the Durban high courts have, since the
year
2000, been inundated with a massive and ever-increasing volume
of litigation by thousands of indigent applicants for social
assistance
seeking relief against the department as a result of its
failure to expeditiously process their applications and appeals
(where their
applications have been refused) or where the
beneficiaries had not been paid their grants after they had been
approved. In some cases
the applicants’ complaints related to
arbitrary cancellation of the grants without notice or explanation.
[4] More than 26 000 applications had been filed in
these courts between the beginning of 2000 and 8 March 2005, when the
court
a quo
delivered the judgment appealed against. Only one
of those adjudicated was on an opposed basis. The rest were settled
or orders were
granted by default in favour of the various applicants
with the department consequently paying millions of rand in legal
costs, at
a huge loss to the fiscus, as it had no defence to the
claims. As at 20 January 2005 over 18 000 such cases had been lodged
in the
two divisions during the previous year and awaited enrolment.
It is unnecessary to describe the disruptive impact of this
unprecedented
phenomenon on the general functioning of the courts,
which are hardly equipped to handle such volumes of litigation, in
addition
to their ordinary roll of cases.
[5] During motion court hearings in the period 20 to 28
January 2005, the case rolls in the two courts were, as had come to
be expected,
clogged with such applications. In one of the matters
the applicant was a deaf, mute woman. An application for a disability
grant
that she lodged in 1999 was apparently never processed despite
her numerous written enquiries to the department over the years,
which
all went unacknowledged and unanswered. Another matter involved
an elderly woman whose old-age pension was abruptly cancelled without
notice after having been a beneficiary for several years. Her several
enquiries to the department elicited no response. The applicants
in
the other matters told similar stories of hardship and frustration
suffered at the hands of the department. They all approached
the
court because of the department’s inaction after exhausting every
possible remedy.
[6] It appears from the judgment of the court
a quo
that it was not particularly concerned with the merits of the
individual applications before it. The court’s specific intention
was to devise a means by which the apparent, long-standing crisis
could finally be resolved. Towards that end, the applications
enrolled
for hearing on 20 January 2005 were not considered
individually but as a group. A rule nisi was then issued calling upon
the appellant
to show cause why an order of costs
de bonis
propriis
should not be awarded against him in these applications
because, so the court felt, there was reason to believe that the MEC
had failed
to comply with his duties.
[7] Subsequent thereto, the appellant filed affidavits
in which he explained the problems he found in the department when he
took
over in May 2004. He attributed some of the problems to the
HIV-Aids pandemic which caused a massive escalation of applications
for
social assistance, fraud perpetrated by some of the applicants
and the employees of the department, budgetary constraints which
prevented,
for example, employment of more staff, and lack of
co-operation from the office of the State Attorney, which allegedly
did not properly
forward notices of motion to the department. The
appellant described various measures he had devised to deal with the
problems. These
included a business plan embodied in a memorandum to
cabinet and a forensic investigation into the fraud. Although the
investigations
disrupted the implementation of such initiatives, as
it involved the removal of millions of relevant files from the
department’s
custody, it nevertheless
yielded
positive results.
[8] The Black Sash Trust was allowed to join in the
proceedings as
amicus curiae
. It is a non-profit organization
which, through advice centres, serves the aged and the disabled, and
advances children’s rights.
Thousands of their clients are
litigants in the social assistance cases who embarked on the
litigation because their applications
were delayed and their appeals
remained unresolved without explanation, despite the Trust’s
numerous efforts to resolve the cases
in a non-adversarial manner. In
the Trust’s view, formed from its regular interaction with the
department, the root of the problem
as described in its affidavit was
‘the abysmal and endemic failure of a department that is in
disarray and which considers its
constitutional obligations to be an
alien imposition.’ The Trust, however, did not support the costs
order contemplated by the
court as it did not believe that it would
solve the problem, and instead
proposed
the issuing of a structural interdict.
[9] In an unprecedented move and responding to the
appellant’s attack on its competence, the State Attorney,
KwaZulu-Natal, acting
independently of the appellant, made
submissions explaining his office’s unavailing attempts to assist
the department in stemming
the long-standing and ever-increasing tide
owing to the department’s persistent failure to provide
instructions properly and its
unwillingness to accept their
proposals.
[10] The
court
a quo
held,
inter alia
, that the department and
its functions under the Social Assistance Act were being mismanaged
on a gross scale, that incompetence
in the department was rife and
that there was an inability to deal with the very subject matter
which was entrusted to the department
by the Act. Whilst accepting
that the appellant had inherited a troubled department, the court
a
quo
found that during his year in office the appellant had not
done much to resolve the crisis, least of all reducing the backlog of
appeals
which fell within the scope of his specific ministerial
functions. It concluded that the appellant’s conduct in the
discharge of
his duties envisaged in the Act was unreasonable,
negligent and
mala fide
, thus warranting a special order of
costs
de bonis propriis
in respect of all the applications
under its consideration. However, the operation of the order was
suspended until 29 July 2005
on which day the appellant and other
interested parties were given the opportunity to persuade the court
that the backlog in the
applications and the appeals had been totally
eliminated or at least substantially addressed, failing which the
order would forthwith
be implemented.
[11] An application for leave to appeal against this
order was sought and granted by Hugo J on 23 June 2005. The parties
nevertheless
filed their affidavits thereafter in compliance with the
order of 8 March. From these affidavits it appears that the special
costs
order had some effect as the department suddenly began to deal
with the matters much more expeditiously. Additional staff and an
ad
hoc
Appeal Board were appointed. In certain districts, big
workforces comprising all the relevant officials essential to process
a social
grant to finality and to hear appeals were deployed to deal
with new and pending applications and expedite the hearing of appeals
which resulted in thousands of applications and appeals being
finalised in a matter of days. This information, together with other
facts not previously furnished to the court
a quo
,
but
showing the appellant in a more positive light, could not
,
however
,
be considered by JH Combrink J
on 29 July 2005 as the appeal was already pending at that stage.
[12] We have to decide at the outset whether Hugo J was
entitled, at that stage of the proceedings, to grant leave to appeal.
Leave
can only be granted in respect of a ‘judgment or order’.
The test in determining whether a judgment is a ‘judgment or order’
has recently been restated in
S v Western Areas Ltd and others
2005 (5) SA 214
(SCA). Howie P said (para 20):
‘Appeals are,
generally, precluded before final determination of a case unless the
judicial pronouncement sought to be appealed
against, whether
referred to as a judgment, order, ruling, decision or declaration,
has three attributes. First, it must be final
in effect. That means
it must not be susceptible of alteration by the court appealed from.
Second, it must be definitive of the rights
of the parties, for
example, because it grants definite and distinct relief. Thirdly, it
must have the effect of disposing of at
least a substantial portion
of the relief claimed. Clearly, whether these criteria are met does
not depend on judicial discretion.’
See also
Zweni v Minister of Law and Order
1993 (1) SA 523
(A) at
532J-533A.
[13] As we understand the somewhat ambiguous order of JH
Combrinck J, its objective, rightly or wrongly, was to provide the
court
a quo
with some leverage in a bid to have the backlogs
addressed. It was not put into effect immediately, but was suspended
pending the
filing of further affidavits to explain the backlogs at a
future date
:
clearly, the court
a quo
had not arrived at its final conclusion in the matter. Counsel for
the appellant was constrained to concede that were it not for
the
intervening application for leave to appeal, it would have been
competent for the court
a quo
to reconsider and alter or
withdraw its order on 29 July 2005, depending on the nature of the
information placed before it at that
stage. That concession, which
was correctly made, disposes of the argument that the order was
final. In our view, the order was not
final in effect. That being so,
the application for leave to appeal was premature and ill-conceived
and should not have been granted.
[14] Counsel for the appellant sought to contend that
the decision of the court
a quo
was appealable as it disposed
of a specific issue
:
that the
respondent’s conduct was
mala fide
and that it warranted a
special costs order. We do not agree. The court’s reference to
mala
fides
was a finding of fact. The focus of counsel’s attack in
so far as it targets the mere finding of fact is misplaced. Findings
of
fact cannot be appealed against; only a ‘judgment or order’ is
appealable. There is thus no merit in the submission.
[15] The
issue of costs does not arise because the other interested parties
did not take part in the appeal. Mr PJJ Zietsman of the
Free State
bar appeared at the request of the court and we wish to thank him for
his assistance freely given in one of the great
traditions of the
bar.
[16] The
appeal is accordingly struck from the roll.
__________________________
MML MAYA
ACTING
JUDGE OF APPEAL
CONCUR:
HARMS JA
SCOTT JA
MTHIYANE
JA
LEWIS JA