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[2011] ZAFSHC 84
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National Association of Welfare Organization and Non-Govermental Organizations and Others v MEC for Social Development, Free State and Others (1719/2010) [2011] ZAFSHC 84 (9 June 2011)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 1719/2010
In the matter between:-
NATIONAL
ASSOCIATION OF
WELFARE
ORGANISATIONS AND
NON-GOVERNMENTAL
ORGANISATIONS
…................
First
Applicant
N G SOCIAL SERVICES
FREE STATE
…...................
Second
Applicant
FREE STATE CARE IN
ACTION
….................................
Third
Applicant
and
THE MEMBER OF THE
EXECUTIVE COUNCIL
FOR SOCIAL
DEVELOPMENT, FREE STATE
…........
First
Respondent
HEAD OF THE
DEPARTMENT OF
SOCIAL DEVELOPMENT,
FREE STATE
…...........
Second
Respondent
NATIONAL MINISTER
OF SOCIAL
DEVELOPMENT
…......................................................
Third
Respondent
_____________________________________________________
HEARD ON:
5
MAY 2011
_____________________________________________________
JUDGMENT BY:
VAN DER MERWE, J
_____________________________________________________
DELIVERED ON:
9 JUNE 2011
_____________________________________________________
[1] This is a sequel to
the judgment delivered in this matter on 5 August 2010 and it must be
read with that judgment.
[2] On
5 August 2010
inter
alia
the following
orders were made:
“
1. It is
declared that:
1.1 the Free State Policy on Financial
Awards to the Nonprofit Organisations in the Social Development
Sector of August 2003 (“the
policy”) is inconsistent with
the constitutional and statutory obligations of the first and second
respondents in terms of
sections 26, 27 and 28 of the Constitution,
section 4(2) of the Children’s Act, 38 of 2005,
section 3(2)
of
the
Older Persons Act, 13 of 2006
and the provisions in respect of
statutory services referred to in this judgment, in that it fails to
recognise as a fundamental
principle of funding that nonprofit
organisations that care for children, older persons or vulnerable
persons in need or provide
statutory services, fulfil the obligations
of the first and second respondents.
1.2 the policy is not a reasonable
measure as envisaged by the aforesaid provisions to the extent that
it lacks a fair, equitable
and transparent method of determination of
the contributions that the aforesaid nonprofit organisations should
make from own resources
or sources of income in respect of provision
of the aforesaid care and services.
2. The first and second respondents
are ordered to adopt and to implement a redrafted or revised policy
in order to remedy the abovementioned
shortcomings.
3. The first and
second respondents shall within four months of date of this order
deliver a report under oath stating what steps
have been taken to
comply with this order.
4. The
applicants may within one month of delivery of the report, deliver a
commentary under oath on the report.
5. The first and
second respondents shall within one month of delivery of the
commentary, deliver a reply thereto under oath.
6. The matter
shall be enrolled on a date to be fixed by the registrar in
consultation with the presiding judge for consideration
and
determination of the aforesaid report, commentary and reply.”
[3]
The department and the applicants filed papers in terms of paragraphs
3, 4 and 5 of the order. The department’s papers
in terms of
paragraph 3 of the order consist of an explanatory affidavit by the
second respondent, to which is attached a report
by KPMG Services
(Pty) Ltd (“KPMG”) and a draft revised version of
paragraph 11.6 of the policy.
[4]
In this affidavit the second respondent states that although this may
not have been expressed clearly in the policy, the department,
from
the MEC down to the officials tasked with the implementation of the
policy, has at all times been acutely aware of the fact
that the
department is obliged to provide the funding concerned and was
obliged to do so as a matter of constitutional and statutory
duty.
The second respondent added however that as far as the finding that
the policy does not contain a fair, equitable and transparent
method
of determining which NPO’s are able to and should make a
financial contribution towards the provision of social welfare
services by them is concerned, “... that particular aspect of
the ... policy is not so easy to remedy...”. It is further
stated that both the relevant national policy and the policy are in
the process of being revised overall, but that neither could
be
completed by the time that the department had to file its affidavit
in terms of the order. For this reason the department instructed
its
legal representatives to formulate a draft revision only of that part
of the policy which would enable the department to comply
with the
order. The department also appointed KPMG to,
inter alia
,
develop a model for the costing and distribution of the funding
available to it for the provision of social welfare services in
the
Free State Province and to develop a draft implementation plan for
the incorporation of the model into operational use. The
result
hereof is that KPMG produced its aforesaid report and the
department’s legal representatives drafted a revised version
of
paragraph 11.6 of the policy. The second respondent states further
that these two documents have to be read together and submits
that
the proposed revision of paragraph 11.6 of the policy together with
the processes the department intends to employ pursuant
to the KPMG
report will remedy the problems identified in the judgment and will
comply with the order.
[5]
In respect of the way forward, it is stated in this affidavit that
KPMG still has to perform a number of tasks which could not
be
completed in the time available. These tasks include the finalisation
of the social welfare service sectors contained in the
first schedule
to the proposed revised policy given that these must represent
homogenous costing groups, the determination of the
reasonable annual
cost per case (or beneficiary) and the finalisation of an
implementation plan. A further revision of the draft
reformulation of
paragraph 11.6 of the policy may be necessitated by further inputs
received from the department and KPMG. It is
stated that it is not
possible for the policy as it is proposed to be revised to be
implemented in respect of the 2011/2012 financial
year. The
department however intends to implement the costing model and
recommendations in the KPMG report. As the budget process
for any
year commences in June of the preceding year, it is anticipated that
the costing model and recommendations in the KPMG
report will be used
in the department’s budget process for the 2012/2013 fiscal
year. Finally, the court’s approval
of the amendment to the
policy, as set out in the revised version of paragraph 11.6 thereof
together with the report of KPMG, is
sought.
[6]
The KPMG report states that it describes a conceptual costing model,
in the sense of determination of funding requirements based
on
standardised costs of servicing beneficiaries, that would lead to a
fair, equitable and transparent method of allocating funding
and
determining the contributions that the NPO’s should make from
their own resources. The methodology that is proposed in
the report
for the costing model seeks in the first place to determine the cost
of providing a welfare service programme to a typical
beneficiary for
a year. Once this annual service cost per beneficiary has been
determined, it is multiplied by the number of beneficiaries
serviced
by a specific NPO to determine that NPO’s annual service cost.
In order to more accurately apply the general methodology
explained
above, factors that have an impact on the cost of providing welfare
services should be identified and is referred to
as costing factors.
The total caseload of an NPO is then subdivided in such a way that
cases within each group have the same costing
factors. These are
referred to as costing groups. As a starting point the eight
sub-programmes within the department’s programme
two - social
welfare services, referred to in paragraph [8] of the judgment of 5
August 2010, are each regarded as a costing group.
It is stated that
the NPO’s will be invited to make representations in respect of
the finalisation of the costing groups.
[7]
The annual service cost per case for each costing group, will then be
determined. It is stated in the papers that these costs
will be
determined through a costing study to be carried out by KPMG and that
there will be objectively justifiable data to justify
the amounts and
that these will be reasonable unit costs. These costs will also be
determined by taking into account representations
of the NPO’s.
The annual service cost per case belonging to a specific costing
group is multiplied by the number of cases
in the caseload of an NPO
within that costing group. The result is the annual service cost of
the NPO for that costing group. This
calculation is repeated for all
other costing groups that make up the NPO’s total caseload. The
annual service cost for all
the costing groups are then aggregated to
determine the total annual service cost for the NPO.
[8]
Having determined the total annual service cost per NPO, the
aggregate of the funding cost of all the NPO’s can be
determined.
The next step is to determine which NPO’s can
reasonably contribute to their funding costs and to what extent. On
the basis
that the total NPO funding costs exceed the budget
available to the department to fund the NPO’s, a formula is
proposed which
in its simplest form can be stated as:
x =
(A – B) ÷ C
[9]
In this formula A is the total annual costs of the services provided
by the NPO’s calculated as described above, B is
the total
annual budget available to the department for the funding of these
services provided by the NPO’s and C is the
total own funds of
the NPO’s reasonably available to contribute to the services
provided by the NPO’s. When x is multiplied
by 100, it provides
the percentage that each NPO that is able to contribute to the cost
of the services provided by it, is to contribute
from the amount
reasonably available from own funds to contribute thereto. Thus, if A
is R100 million, B is R60 million and C is
R50 million, x will be
0.8. When multiplied by 100 the result is 80%. Therefore an NPO that
has funds reasonably available to contribute
to the cost of the
services provided by it, will be required to contribute 80% of those
available funds.
[10]
The KPMG model therefore essentially calculates the costs of the
services to be provided by the NPO’s in terms of the
costing
model and makes use of the formula to determine the distribution of
the budget available for this purpose. Two very important
aspects of
the model must however be kept in mind. The first is that in no
instance will the annual cost of providing the service
by the NPO be
subject to reduction in calculating the allocation to it by the
department. In the case where an NPO is unable to
make a contribution
to the cost of the services provided by it, it will be allocated the
full cost of the services as calculated
above. Also, in the case
where an NPO can contribute to the cost of the services provided by
it, it will only be required to make
a contribution to the total cost
of the service provided as calculated, so that the balance will be
provided by the allocation
by the department. The second is, as is
expressed clearly in the KPMG report, that the formula is subject to
the constraint that
x is equal to or less than 1. This will be the
case only if B + C is equal to or more than A, that is if the total
budget available
for transfer to NPO’s and the NPO funds
available to contribute to the services provided by them, equal or
exceed the total
costs of provision of the services by the NPO’s.
In these respects the KPMG model is inconsistent with the revised
version
of paragraph 11.6 of the policy, as will be shown below.
[11]
As a result of suggestions made during argument and at the invitation
of the court, both the applicants and the department
subsequently
filed proposed revisions of paragraph 11.6 of the policy. The revised
version filed by the department, referred to
as “the revision”,
is the following:
“
11.6
Financial
assessment of service plans
Applications
for state funding of social welfare service programmes (service
plans) will only be considered if they pertain
to one of the
recognized social welfare service sectors (sub-programmes)
identified in the first schedule.
The financial
appraisal of all service plans which qualify for funding in terms
of this policy will be performed in accordance
with the principles
and procedures set out in paragraphs 11.6.3 to 11.6.14 below.
The appraisal
will be based on the reasonable annual cost per case of providing
the applicable social welfare service, which
the Department has
calculated having regard to the reasonable unit cost (“benchmark
cost”) of each of the items
of expenditure that is normally
and ordinarily incurred for that purpose.
The appraisal
will be conducted in accordance with the costing models contained
in the second to ninth schedules, each of
which:
the
Department has compiled, having regard to the normal and ordinary
items and expenditure that are incurred for that purpose;
is
applicable to one of the recognized social welfare service
sectors identified in the first schedule.
11.6.5 The
appraisal will be conducted in two stages.
11.6.6 The first
stage will be the provisional determination of the financial award
done by:
11.6.6.1
firstly, determining the benchmark amount, which is done by
multiplying the benchmark cost as determined in accordance
with the
applicable costing model, by the number of beneficiaries to whom the
relevant programme will deliver social welfares services;
11.6.6.2
thereafter, deducting from the benchmark amount that which the
service provider is reasonably able to contribute towards
the costs
it will incur in rendering the services it has applied to perform.
The amount which the service provider cannot itself
contribute will
be determined by the Department after consultation with the service
provider concerned and will take into account,
inter alia the service
provider’s service plan (submitted in accordance with paragraph
10 of this policy) and its financial
statements for the preceding
fiscal year. At the time of submitting its application for funding
and its service plan and financial
statements, the service provider
may make representations in writing in support of its application.
11.6.7 The
second stage will be the final determination of the financial award.
11.6.8 The
financial award so determined will be commensurate with the costs
which the service provider concerned will incur in
rendering the
services it has applied to perform as determined in accordance with
the applicable costing model or models.
11.6.9 The
provisional awards so determined will further be subject to
adjustment by an appropriate percentage, if necessary, to
provide the
final awards of all programmes to which subsidies have been allocated
to ensure that the aggregate of the approved
financial awards do not
exceed the funds allocated to the Department for transfer to the
service providers rendering the relevant
social welfare services.
The appropriate
percentage will be determined in respect of each service provider
separately, taking into account the prioritization
of services or
activities within the service after consultation with the relevant
service providers.
11.6.10 The
financial appraisal performed in terms of paragraphs 11.6.2 to 11.6.9
will be based on the principles set out in paragraphs
11.6.11 to
11.6.14 below.
11.6.11 The
Department has a statutory and constitutional obligation to achieve,
within its available resources, the progressive
realization of the
applicable socio-economic rights, which it must fulfill by striving
to progressively increase the resources
available for the provision
of social welfare services.
11.6.12 The
costing model in relation to each application may be based on the
specific requirements of the services to be rendered,
and that part
of the income available to service providers to contribute towards
the costs of rendering the service.
11.6.13 It is
recognized that whilst the Department strives and will continue to
strive to fund the provision of social welfare
services to the
maximum extent possible, its objective being to ensure that its
financial awards will eventually cover the full
cost of service, the
limited resources at its disposal presently preclude it from covering
the full cost thereof.
11.6.14
Financial awards will, in order to facilitate forward planning and
budgeting, be approved for a minimum period of three
financial years,
with the approval in respect of the second and third years being
provisional.
11.6.15 The
costing models and benchmark unit costs contained in schedules two to
nine will be reviewed, and if necessary revised,
annually by the
Department’s provincial office (Public Private Partnership
Sub-directorate), pursuant to it having considered
inputs received
from the sub-directorates responsible for each of the identified
social welfare service sectors and service providers.”
[12]
The revision is clearly work in progress. The first question is
whether what is envisaged by the revision complies with the
judgment
and order. I do not concern myself with issues of proper language and
logical sequence of sub-paragraphs of the revision.
I do however
constantly remind myself that it is not for the court to devise a
policy.
[13]
Upon analysis of the revision, with the exclusion of paragraph 11.6.9
thereof, the following is apparent. In paragraph 11.6.11
it is
recognised that the department has a constitutional and statutory
obligation to achieve within its available resources the
progressive
realisation of the applicable socio-economic rights, which it must
fulfil by striving to progressively increase the
resources available
for the provision of social welfare services. In paragraph 11.6.13 it
is stated that whilst the department
strives and will continue to
strive to fund the provision of social welfare services to the
maximum extent possible, its objective
is to ensure that these
financial awards to NPO’s will eventually cover the full costs
of the services provided by the NPO’s.
Furthermore it is clear
from paragraphs 11.6.3, 11.6.4, 11.6.6.1 and 11.6.8 that the idea is
to determine as benchmark amount,
the reasonable total cost of
provision of the particular service, in other words, an amount that
will enable an NPO to actually
provide the social service concerned
from this source only. It is proposed that from this amount should be
deducted the amount
that the NPO is reasonably able to contribute
towards the benchmark amount. This reasonable contribution will be
determined in
consultation with the NPO during which process the NPO
will be able, for instance, to show that certain funds available to
it are
earmarked for other purposes or for one or other reason not
reasonably required or available to contribute towards the provision
of the particular social service. The provisions that applications
for state funding of social welfare service programmes will
only be
considered if they pertain to one of the recognised social welfare
service sectors (para 11.6.1), that the costing model
in relation to
an application may be based on the specific requirements of the
services to be rendered and that part of the income
derived therefrom
available to the NPO to contribute towards the cost of rendering the
service (para 11.6.12), that in order to
facilitate forward planning
and budgeting, financial awards will be approved for a minimum period
of three financial years albeit
that the approval in respect of the
second and third years will be provisional (para 11.6.14) and that
the costing models and benchmark
unit costs will be reviewed annually
having regard
inter alia
to inputs by the NPO’s (para
11.6.15), appear to me to be eminently practical and reasonable.
[14]
So far so good, one could say. The NPO’s that fulfil the
constitutional and statutory obligations of the department will
be
funded on the basis of the reasonable actual cost of providing the
services, less what they can reasonably contribute to the
cost
thereof. This accords with the KPMG model, on the basis that the
NPO’s contribute 100% of the funds that they have available
for
this specific purpose. But then follows paragraph 11.6.9.
[15]
This provision is expressly intended to ensure that the aggregate of
the approved financial awards do not exceed the funds
allocated to
the department for transfer to the NPO’s rendering the relevant
social welfare services. The operation of the
policy as proposed to
be amended is as follows: The service plans submitted by the NPO’s
in response to the service specifications
are regarded as
applications for funding. The department approves all the service
plans that comply with the objective requirements
stated in the
policy. This necessarily results in the available budget being less
than the cost of the execution of all the approved
service plans.
This in turn becomes a vicious circle because the more qualifying
NPO’s apply for funding by submitting service
plans, the
greater the deficit. However, in terms of the revision the total cost
of the provision of these services by each NPO
is calculated and from
that is deducted the amount that can reasonably be contributed to
that cost by the NPO. Having thus meticulously
calculated which
amount is actually needed by each approved NPO (total cost less own
contribution, if any), this amount is then
reduced by what is termed
“an appropriate percentage”. This may result in a very
substantial reduction. The KPMG report
points out that in the
2010/2011 financial year the actual awards made were 49% less than
those recommended.
[16]
I appreciate of course that the policy should contain a mechanism to
allocate an insufficient budget. This mechanism must however
be
reasonable. Paragraph 11.6.9 as presently framed is not a reasonable
measure. It appears to me to be illogical and irrational.
[17]
This may be illustrated by the following example. An NPO operates a
registered child and youth care centre for 20 children
in a poor
section of the community. It will be remembered that all children in
child and youth care centres are children found
by a children’s
court to be in need of care and protection and placed in a child and
youth care centre by order of the children’s
court. In terms of
section 193
of the Children’s Act the MEC of a province must
provide and fund child and youth care centres. The sub-programme
child care
and protection services is by far the largest
sub-programme in the department’s programme two: social welfare
services. These
children are therefore constitutionally and
statutorily the charges of the department. Say the appropriate
benchmark cost amounts
to R4 000,00 per child per month and that the
benchmark amount per month is therefore R80 000,00 per month. The NPO
has no funds
available to contribute to these costs. Imagine now that
the financial award allocated to the NPO is 49% less than the amount
of
R80 000,00 per month which the department itself calculated as the
reasonable cost to care for these children. This gives rise to
many
questions. What is the NPO to do in the circumstances? How will the
human dignity of the children be maintained? And what
about their
rights to equality, because they may suffer solely as a result
thereof that they happened to be referred to the NPO’s
child
and youth care centre and not, for instance, to one of the
department’s own institutions? Will this not result in the
failure of the NPO’s programme and resultant effective waste of
the financial award to it?
[18]
In terms of the policy the service specifications must be published
by not later than 30 September of each year. The deadline
for
submission of service plans by NPO’s in respect of the service
specifications for the 2010/2011 financial year commencing
on 1 April
2010, was 6 November 2009. In terms of paragraph 11.2.5 of the policy
the appraisal of the service plans must be finalised
within 60 days
after the closing date for submission of service plans. The appraisal
process must therefore be concluded by say
the middle of January of
the following year.
[19]
By that time the department will for some time have had a very good
idea of the budget that will be allocated to it for the
fiscal year
commencing on 1 April. The budget process commences already in
approximately June of the preceding year. Its departure
point is the
so-called “Blue Book”. The Blue Book contains details of
the actual budgets for the previous three financial
years, details of
the budget of the current financial year and estimates of what the
budgets will be for the ensuing three years.
[20]
What happens then can be illustrated by what transpired in respect of
the department’s budget allocation in respect of
the 2010/2011
fiscal year. Against the background of the Blue Book the department
made detailed submissions to both the provincial
and national
treasuries calling for and explaining the need for an increased
budget allocation to it. In a letter dated 21 August
2009 the
provincial treasury communicated to the department its initial
allocation for the 2010/2011 to 2012/2013 financial years.
This was
regarded by the department as a “significant indication”.
Following further submissions by the department
a further preliminary
allocation for the same period was made to the department by letter
dated 4 December 2009. Upon receipt hereof
the department had the
opportunity to adjust its allocations in order to fit its programmes
within the parameters of the funds
it was likely to receive. The
department was advised of the final allocation for the 2010/2011
financial year on 25 February 2010.
This document again not only
contained the final budget allocation to the department for the
2010/2011 financial year but also
contained estimates thereof for the
ensuing two years. The final allocation for 2010/2011 was
approximately 2,6% more than the
initial allocation of 21 August
2009.
[21]
During the appraisal process it will be determined what the
contributions are that could be made by the relevant NPO’s.
There is in any event no reason why the time frames in respect of
service specifications or service plans could not be suitably
adjusted. In the affidavit in terms of paragraph 6 of the order the
department said that the appraisal process must be finalised
by 1
April annually.
[22]
The department should therefore be able to do proper planning and
prioritisation in respect of publication of service specifications
and/or appraisal of service plans. The draft new national policy
states in this regard that service specifications will determine
priorities for service delivery at either national or provincial
level and will be informed by, amongst others, government priorities,
relevant research, statistics, relevant community needs and
priorities, the relevant demographics, including population, poverty
levels, migration patterns and other social development indicators
and integrated development plans and that service specifications
will
therefore determine where, to whom and for what purpose funding will
be allocated. The department’s constitutional and
statutory
obligations require planning and prioritisation. In so doing, even
though this may require some tough decisions, the
department could
justify in a manner consistent with the Bill of Rights as a whole,
the effective funding of the prioritised services
required from the
NPO’s, in accordance with paragraphs 11.6.6.1 and 11.6.6.2 of
the revision. There is therefor no reason
for the senseless
procedures of approval of service plans that cannot be fully funded
(albeit with the assistance of reasonable
contributions by NPO’s)
and payment of palpably insufficient amounts to all approved NPO’s.
[23]
It follows that in my judgment it is irrational to deal with an
inadequate budget as proposed in paragraph 11.6.9. Parapraph
11.6.9
in any event suffers from the deficiencies set out below.
[24]
First, the determination of an adjustment by appropriate percentage
in terms of paragraph 11.6.9 must be consistent with the
Bill of
Rights as a whole and must be fair, equitable and transparent. This
is not at all the case at present. It is not possible
to ascertain
from the policy how the (downward) adjustment will be done. It
intends to differentiate between NPO’s in a manner
that is
altogether vague and uncertain. The department says that the revision
must be read with the KPMG report and that the department
intends to
implement the costing model and recommendations in the KPMG report.
If this means that the model contained in the KPMG
report is intended
to be used, then the policy must say so. But paragraph 11.6.9 is
inconsistent with the KPMG model as the KPMG
model requires that the
total own NPO funds available in respect of services delivered for
the department together with the budget
allocation for this purpose
must at least be equal to the total amount of approved costs. In
terms thereof no deduction is to be
made from the benchmark amounts
of the NPO’s, so that NPO’s that cannot make a
contribution will receive the benchmark
amount and NPO’s that
can, will within their means make contribution to the benchmark
amount.
[25]
Second, it is not difficult to see that because of paragraph 11.6.9
the whole process of funding of NPO’s may culminate
therein
that the NPO’s are unable to provide the services that the
department requires them to do, properly or at all. That
is precisely
the uncontested evidence of the applicants. In order for a measure
such as paragraph 11.6.9 to pass muster, it must
ensure that it is
not self-defeating and that the reduction or appropriate percentage
does not result in the service required by
the department not being
provided. In short, it must not result in merely paying lip service
to the fundamental principle of funding
that NPO’s that care
for children, older persons or vulnerable persons in need or provide
statutory services fulfil the obligations
of the department.
[26]
I conclude therefore that the revision does not comply with the
judgment and order of 5 August 2011. Counsel for the applicants
proposed that in the event of such finding, the department should be
directed, after consultation with the applicants, to table
within 90
days a revised policy which meets the requirements of the judgment
and order of 5 August 2010. The department raised
no objection to
this proposal as such and it appears to me to be sound.
[27]
Intertwined in the affidavits filed by the applicants in terms of
paragraph 4 of the order, an application for what was termed
emergency relief is found. As I understand it, the relief claimed is
that this court should order the department to pay specific
amounts
of increased financial awards to specific institutions operating
under the auspices of the applicants. At the hearing on
5 May 2011
this application was not moved. The temptation to consider whether
this claim for relief has any prospect of success
must therefore be
resisted. But for the same reason the costs wasted as a result of the
application for emergency relief, must
be paid by the applicants.
Costs of more than two counsel are not justified in this regard.
[28]
The following orders are issued:
1.
It is declared that the revised policy presented by the respondents
in purported compliance with the judgment and order of 5
August 2010
in this matter, does not comply with that order.
2.
The first and second respondents are directed, after consultation
with the applicants, to within 90 days of this order file a
revised
policy which meets the requirements of the judgment and order of 5
August 2010.
3.
Any party hereto may enroll the matter after a revised policy was
filed.
4.
Save for paragraph 5 below, the first and second respondents shall
pay the costs of the application incurred since 5 August 2010,
including the costs of two counsel.
5.
The applicants shall pay the costs wasted by the deferment of the
applicants’ application for emergency relief, including
the
costs of two counsel.
________________________
C.H.G. VAN DER MERWE,
J
On behalf of the
applicants: Adv. J. Gauntlett SC
With him:
F. Pelser
Instructed by:
Phatsoane Henney Inc.
BLOEMFONTEIN
On behalf of the first
and
second respondents: Adv.
C.G. Marnewick SC
With him:
N. Singh SC and C. Human
Instructed by:
The State Attorney
BLOEMFONTEIN
/sp