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[2011] ZANCHC 31
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Winvoel and Others v MEC for Social Development, Northern Cape and Others (1014/09) [2011] ZANCHC 31 (21 October 2011)
(IN THE HIGH
COURT OF SOUTH AFRICA)
(NORTHERN CAPE HIGH
COURT, KIMBERLEY)
Case
No. 1014/09
Heard
on 05/08/2011
Delivered
on 21 /10/2011
In
the matter between
EMELY WINDVOËL
AND 100 OTHER APPLICANTS DESCRIBED
IN ANNEXURE “A”TO
THE NOTICE OF MOTION
…........................................
Applicants
And
MEMBER OF THE
EXECUTIVE COUNCIL,
DEPARTMENT OF SOCIAL DEVELOPMENT,
NORTHERN
CAPE
…...............................................................................
First
Respondent
THE
DISASTER RELIEF FUND BOARD
…........................................
Second
Respondent
UPPER
KAROO ADVICE AND DEVELOPMENT
AGENCIES (UKADA)
…..........................................................................
Third
Respondent
NATIONAL
MINISTER OF SOCIAL DEVELOPMENT
….....................
Fourth
Respondent
JUDGMENT
PAKATI
AJ
The applicant, Emely
Windvoël, and hundred others, approached this court seeking
relief in the following terms:
“
1.
Directing that the failure of the First, Second and/or Fourth
Respondents to consider and decide Applicants’ applications
for
Drought Relief grants be reviewed and set aside;
2.
In the event
of the First, Second and/or Fourth Respondent finding that the
applicants are not entitled to Drought Relief grants
they should
furnish written reasons to the Applicants’ attorneys for their
decision in this regard within fifteen (15) days
from the date of the
order;
3.
Directing
that the One Hundred and Eighty (180) day period envisaged in terms
of
Section 7
(1) of the
Promotion of Administrative Justice Act, 3 of
2000
be extended;
4.
Directing
that the Second and Fourth Respondents pay the Applicants’
costs jointly and severally the one paying the other
to be absolved;
6.
Granting
such further and/or alternative relief as to the above Honourable
Court may seem meet.”
No relief is sought
against the third respondent, the Upper Karoo Advice and Development
Agency.
The first respondent,
the Member of the Executive Council (MEC), Department of Social
Development, Northern Cape (the Department),
is responsible for the
acts and omissions of the employees of the Department of Social
Services and Population Development. According
to s1 of the
Promotion of Administrative Act, 3 of 2000 (PAJA) the MEC is an
administrator and is responsible for taking administrative
action as
defined in the Act.
The second respondent,
the Disaster Relief Fund Board (“the Relief Board”), has
been established in terms of
s16
of the
Fund-raising Act, 107 of
1978
, with the objective of rendering relief to persons,
organisations and bodies who or that suffer damage or loss caused by
a disaster
as the Relief Board may deem fair and reasonable. The
Relief Board was mandated to provide a flat rate of R900-00 per
household
to deserving victims of drought. The amount of R60 million
was allocated nationally (not provincially) by the National treasury
for this purpose.
During 2004 the Relief
Board entered into a service level agreement with the third
respondent, the Upper Karoo Advice and Development
Agency (“UKADA”),
a non-governmental organisation based in Hopetown, Northern Cape.
UKADA (or the Agent) serviced
the Upper Karoo region and was amongst
other things contracted by the Relief Board and the Department to
distribute application
forms in the Colesberg region. The Agent was
also tasked to assist the applicants with completing the
registration forms in terms
of the provisions of the Act and to
submit the completed forms to the secretariat of the Relief Board
for processing.
The fourth respondent,
the National Minister of Social Development (the Minister), is in
terms of
s2
(2) of the
State Liability Act, 20 of 1957
, responsible
for the acts and omissions of the employees in the Department and is
the functionary responsible jointly with the
Relief Board for the
payment of Drought Relief grants.
On 23 January 2004
former president Thabo Mbeki declared certain areas in the Northern
Cape as disaster areas in Government Gazette
No 25940 in accordance
with
s26
of the
Fund-raising Act, 107 of 1978
. A similar
proclamation was published in Government Gazette No 27349 of 3 March
2005. The Colesberg district in which the applicants
are resident
falls in the declared areas in respect of both the aforementioned
proclamations.
In her founding
affidavit the applicant, Ms Windvoël, whose situation is a
prototype of all applicants for purposes of this
application, stated
that she is functionally illiterate. She has never had the
opportunity of permanent employment. She has worked
as a farm
labourer from time to time and depends on social welfare grants. She
earned additional income from a modest garden
and maize allotment
which she conducted as a small scale farmer from her home from which
she generated approximately R400-00
per month. Due to the drought
she could not carry on that activity anymore and lost the ability to
supplement her social benefits.
She clearly falls within the
designated group envisaged in
s18
(a) of the
Fund-raising Act.
On
15 May 2004 she and
her co-applicants (100 of them), members of the community, completed
application forms for drought relief
at Colesberg Community Hall
with the assistance of officials of UKADA and the Relief Board. Ms
Windvoël was not issued with
a certificate or proof of
application. Some members of the community received payment in the
sum of R900-00 during 2005. Payments
to the community members of
Colesberg were staggered over a period of not less than two months.
It transpired several months
after the (
January 2005)
payment
that the applicants have been overlooked or turned down.
Ms Windvoël
consulted her attorneys on 15 May 2005 who undertook to investigate
the matter. On 30 August 2005 the attorneys
held a meeting with
other applicants who had lodged their applications, but did not
receive payment, with a view to lodge a class
action. Thereafter
there were several meetings between them and a member of the
Secretariat of the Relief Board and correspondence
between them was
exchanged. On 30 August 2005 they gave instructions to their
attorneys to proceed with this application.
Mr Vusi Madonsela, who
responded on affidavit on behalf of the Minister, contended that all
the applicants who applied have been
paid. He denies that the
applicants completed forms and submitted them on 15 May 2004 for
drought relief funding. According to
him there was an audit of all
the applications conducted by UKADA, the Agent. The report, he says,
shows that only one person
by the name of Ms Thiwe Everlyn
registered but did not collect the grant. According to him a person
whose name does not appear
in the report did not apply for
registration. He says that when the Relief Board closed the project
there were no outstanding
applications for drought relief and no one
approached the Relief Board to claim registration or payment. Ms
Lerato Hebe, who
was at that time contracted by the Relief Board
stated in para 13 of her confirmatory affidavit that:
“
13.
Though I could not give the exact number of applications that we
received in the different towns, including Colesberg, I can
confirm
that every application that we received in the town was sent to the
Fund’s office in Pretoria for consideration and
processing.”
The issue for
determination is whether the applicants applied to be considered for
drought relief as they claim to have done but
no response was
forthcoming from the authorities. According to the respondents the
Relief Board has now been dissolved and intimate
that the
appointment of a new Relief Board would entail great expense. Funds
would have to be sourced from the National Treasury
as all the funds
were exhausted. The respondents maintain that if the applicants
applied for drought relief they must have filed
their applications
late. The respondents further take the point
in limine
that
this application was brought out of time as the 180 days period as
envisaged in s7 (1) of the Promotions of Administration
of Justice
Act, 3 of 2000, had elapsed.
Ms Hebe in one breath
denies that the respondents or their representatives attended a
meeting in Colesberg on 15 May 2004; yet
on the other say she can’t
deny that such a meeting took place and can’t even deny that
they were there and that
the applicants submitted their application
forms. Strangely, Ms Hebe knows the exact date on which they went to
Hanover, in another
district in the Northern Cape not very far from
Colesberg.
Mr Madonsela filed his
answering affidavit only on 24 July 2009. He outlined the general
principles and policies governing the
Disaster Relief Fund. He
confirmed the applicants’ version that the registration for
relief was finalised in May 2005.
He was not personally involved in
this project. He stated anecdotally what he learned from other
people, including Ms Hebe. It
is only after the applicants filed a
notice to strike out paras 9-13, 20.1, 20.2, 22.3 and 23.2 of his
answering affidavit on
07 October 2009 that he brought a substantive
application on 28 May 2010 seeking an order condoning the late
filing of his statement.
The order to file further affidavits was
granted on 24 July 2010. The applicants had by then (on 09 October
2009) already filed
their Heads of Argument, including the argument
on the merits and on the application to strike out. Ms Hebe’s
affidavit
was taken down on 19 October 2009. A number of the other
affidavits were unsigned and others were signed but not attested. At
para 7 of her confirmatory affidavit Ms Hebe said:
“
7.
I must mention that in all the places that we went to in order to
hold these meetings and distribute application forms we got
a
lukewarm reception from the community members and that includes the
town of Colesberg, as we did not get the numbers of people
we
expected.”
From this paragraph it
is clear that Ms Hebe is trying to cure the hearsay evidence adduced
by Mr Madonsela in his answering affidavit.
Her affidavit, in my
view, is an afterthought and strengthens the applicants’ case
on this point. Her denial that she has
doubts that they were in
Colesberg on 15 May 2004 is therefore contradictory. Ms Hebe stated
that early in 2004 she and Ms Ester
Magugu were contracted by the
National Disaster Fund to assist in the drought relief programme in
the Northern Cape. On the other
hand in his answering affidavit Mr
Madonsela said:
“
Registration
for relief commenced in February 2004 and was finalised in May 2005.
The first run of payments was made in 2004 where
a total of 2 508
beneficiaries were paid. The last run of payments was made in July
2005, where 5 247 beneficiaries received
payment. A total of
1 074 beneficiaries remain unpaid. This is due to beneficiaries
not showing up at the pay points and others
being dead.”
To the contrary Ms
Magdaleen Reed, a ward Councillor at Lowryville Colesberg whose
affidavit was filed with the Registrar on 07
October 2009, confirmed
that she attended the meeting in the community hall whereat
registration was taking place for the Drought
Relief grants. She
estimated the turn out of the community members at 1200.
Mr R. Mogagabe SC for
the respondents argued that it could not be true that the applicants
handed their application forms to UKADA
officials in 2004 as stated
in paras 24 and 29 of the founding affidavit. He suggested that
UKADA was not contracted to the Provincial
or National Department at
that time but only in 2005. He referred to the confirmatory
affidavit of Mr Abraham Schwarz, on behalf
of the respondents, which
states that an agreement between UKADA and the National Department
of Social Development was concluded
on 11 February 2005. He argued
further that the applicants rely on the Social Assistance Act and
not the
Fund-raising Act and
that therefore
regulation 26(2)
of the
Regulations under the Social Relief Distress was applicable and
contended that this was fatal to the applicants’
application.
It does not make sense
that UKADA could only have been contracted in 2005 when the
registration period was over. This is explained
by the change of the
year in the agreement (Annexure “1”). The “4”
in the year 2004 in the agreement
has been altered and “5”
has been inserted to read 2005. There is no other explanation for
the alteration in the
year but to suit the respondents’
defence. Mr Madonsela’s evidence unwittingly confirms the
version of the applicants
on this aspect.
Invoking the test set
out in
PLASCON-EVANS PAINTS v VAN RIEBEECK PAINTS (PTY) LTD
[1984] ZASCA 51
;
1984
(3) SA 623
(A) (SCA) at 634 and NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS v ZUMA
2009 (1) SACR 631
(SCA)
at para 26 I am
satisfied that the objective make out a compelling case that the
applicants made the requisite applications for
Drought relief
timeously, for the following reasons:
18.1 It is highly
unlikely that 101 indigent people would perjure themselves for
R900-00 and make so much effort to vindicate their
right even though,
in their deprived circumstances, R900-00 is not a fortune.
18.2 The applicant states
that on the specific date (15 May 2004) they gathered at no other
place than the Colesberg Town Hall.
Councillor Reed, who is
independent and not an applicant, state that more than 1200 gathered
at the Town Hall on the day in question.
18.3 The government
officials contradicted themselves in a shameful manner. At least some
of them admitted that some drought victims,
apart from the
applicants, have been paid the fixed amount of R900-00 each.
Mr R Quinn SC for the
applicants contended that the applicants’ case is based on the
Fund-raising Act and
that the respondents’ reliance on
regulation 26(2)
to the now repealed Social Assistance Act, 59 of
1992 was misplaced.
The regulation relating
to the grants and financial awards to welfare organizations and to
persons in need of social relief of
distress, published under
Government Notice R418 in Government Gazette 18771 of 31 March 1998
of the Social Assistance Act No,
59 of 1992, is indeed repealed by
the
Social Assistance Act 13 of 2004
. It is common cause that all
the applicants in this matter are recipients of social grants under
the
Social Assistance Act. They
have invoked the
Fund-raising Act,
107 of 1978
.
Regulation 26(2)
is therefore not applicable to them.
This is confirmed by Annexure “B” to the founding
affidavit. See also the unreported
case of
NATIONAL MINISTER OF
SOCIAL DEVELOPMENT AND OTHERS v JANNETJIE CAROLUS AND OTHERS CASE NO
1150/09 p10 (NC)
delivered on 14 August 2009 where Matiedt J
said:
“
It
may well be (I put it no higher than this since the point was not
argued at all in Mweza and Barends) that the relief granted
under
s5
(2) for drought relief may be untenable in law due to the terms of
Regulation 26(2).
Be that as it may, however, Ms Baloyi correctly
alluded to the fact that the Applicants in the main application would
be better
placed to proceed in terms of the Fundraising Act.”
The applicants’
request in this matter is for the respondents to consider and decide
their applications and if the respondents
find that they are not
entitled to the relief sought, furnish them with reasons for their
decision. It is worth mentioning that
the unreported cases of
NONZAME ELSIE MWEZA (Case No. 367/06) and ABRAHAM BARENDS (Case
No. 368/06)
were regarded as test cases as the relief sought in
the two matters is similar to that sought in the instant case. See
also
MINISTER FOR JUSTICE AND CONSTITUTIONAL DEVELOPMENT V CHONCO
AND OTHERS
2010 (4) SA 82
(CC)
where Langa CJ held that the
Constitution requires that all constitutional obligations, wherever
they lie, ‘must be performed
diligently and without delay’.
Good governance and social trust are premised at least partly on
reasonable and responsive
decision-making.
In Annexure “D”
to the founding affidavit the people who are supposed to benefit
from the government grant are specified
as follows:
“
WHO
WILL BENEFIT?
Vulnerable individuals
and households of poverty stricken families who are destitute as a
result of the drought disaster in identified
districts of the
affected provinces;
Those with none or
limited employment and/or income-generating opportunities in those
areas;
Farm workers who have
been laid off work due to the persistent drought;
Persons in farming
communities whose livelihood have been severely affected;
Persons and households
participating in job creation projects;
Persons and households
who rely directly and indirectly on farming.”
There is no doubt that
the applicants
in casu
are destitute. Whether they qualify
for the drought relief is for the second and the fourth respondents
to consider and decide.
In
NATIONAL MINISTER OF SOCIAL
DEVELOPMENT AND ANOTHER v JANNETJIE CAROLUS AND OTHERS
supra
this Court ordered the National Minister of Social Development
to comply with its direction of 08 May 2009 in case No. 363/09. This
court was brought under the impression that the Minister wished to
assist the applicants in that matter by payment of a sum of
R900-00
per applicant. It was also indicated that the Minister had already
placed advertisements to constitute a Disaster Relief
Fund Board,
had compiled a shortlist of candidates and, as at 14 August 2009 was
in the process of interviewing prospective members
of the new Board.
The averments made on oath by Mr Madonsela in that matter (similar
to the present matter) have not been contradicted.
It does not seem,
on the evidence presented to me, that the costs of constituting a
new Relief Board are prohibitive. In
GOVERNMENT OF THE REPUBLIC
OF SOUTH AFRICA AND OTHERS v GROOTBOOM AND OTHERS
2001 (1) SA 46
(CC)
Yacoob J stated at para 24 that the State is obliged
to take positive action to meet the needs of those living in extreme
conditions
of poverty, homelessness or intolerable housing. Their
interconnectedness needs to be taken into account in interpreting
the
socio-economic rights, and, in particular, in determining
whether the State has met its obligations in terms of them. See also
MEC, DEPARTMENT OF WELFARE, EASTERN CAPE v KATE
[2006] ZASCA 49
;
2006 (4) SA 478
(SCA)
at 493I where Nugent JA held:
“
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.”
The applicants further
seek an order extending the one hundred and eighty (180) day period
envisaged in s7 (1) of PAJA. This section
provides as follows:
“
(1)
Any proceedings for judicial review in terms of section 6 (1) must be
instituted without unreasonable delay and not later than
180 days
after the date-
Subject to subsection
(2) (c), on which any proceedings instituted in terms of internal
remedies as contemplated in subsection
(2) (a) have been concluded;
or
Where no such
remedies exist, on which the person concerned was informed of the
administrative action, became aware of the action
and the reasons
for it or might reasonably have been expected to have become aware
of the action and the reasons.”
Section 7(2) in turn
provides thus:
“
(2)(a)
Subject to paragraph (c), no court or tribunal shall review an
administrative action in terms of this Act unless any internal
remedy
provided for in any other law has first been exhausted.
Subject to paragraph
(c), a court or tribunal must, if it is not satisfied that any
internal remedy referred to in paragraph (a)
has been exhausted,
direct that the person concerned must first exhaust such remedy
before instituting proceedings in a court
or tribunal for judicial
review in terms of this Act.
A court or tribunal
may, in exceptional circumstances and on application by the person
concerned, exempt such person from the
obligation to exhaust any
internal remedy if the court or tribunal deems it in the interest of
justice.”
The same can be said in
the present case where deserving applicants are deprived of a
once-off grant of R900-00.
Mr Mogagabe argued
strenuously that the application was out of time and must therefore
be dismissed. The applicants took four
years before they approached
the Court. The respondents allege that they never received the
applicants’ application forms
and therefore no decision was
taken in respect of the alleged applications. Mr Quinn conceded that
the application was out of
time. However, he submitted that the
respondents did not show that they suffered any prejudice during
this period and that insult
must not be heaped to injury by closing
the door to the applicants without regard to the merits of their
case.
The applicants are not
sophisticated to know that they had to bring their applications
within a specific period of time. Their
delay was wanton. First they
waited patiently for their grants to be approved. Then they
consulted their attorneys. Getting all
the aggrieved destitute
people together and having them to pool their resources for a class
action is easier said than done.
Their delay is therefore excusable.
Section 1 of PAJA defines “administrative action” as
follows:
“’
administrative
action’ means any decision taken, or any failure to take a
decision, by-
An organ of state,
when-
Exercising a power in
terms of the Constitution or a provincial constitution; or
Exercising a public
power or performing a public function in terms of any legislation;
or
A natural or juristic
person, other than an organ of state, when exercising a public power
or performing a public function in
terms of an empowering provision,
which adversely affects the rights of any person and which has a
direct, external legal effect,
but does not include-
(aa) the executive
powers or functions of the National Executive,....
(bb) the executive
powers or functions of the Provincial Executive, ....
(cc) the executive
powers or functions of a municipal council;
(dd) the legislative
functions of Parliament, a provincial legislature or a municipal
council;
(ee) the judicial
functions of a judicial officer of a court referred to in section 166
of the Constitution or of a Special Tribunal
established under
section 2 of the Special Investigating Units and Special Tribunals
Act, 1996 (Act 74 of 1996), and the judicial
functions of a
traditional leader under customary law or any other law;
(ff) a decision to
institute or continue a prosecution;
(gg) a decision
relating to any aspect regarding the nomination, selection or
appointment of a judicial officer or any other person,
by the
Judicial Service Commission in terms of any law;
(hh) any decision
taken, or failure to take a decision, in terms of any provision of
the
Promotion of Access to Information Act, 2000
; or
Any decision taken,
or failure to take a decision, in terms of
section 4(1)
,”
A failure to take a
decision is therefore reviewable. The applicants made out a proper
case that the Disaster Relief Fund Board,
the MEC of Social
Development and/or the National Minister of Social Development
failed or refused to consider the applicants’
application for
drought relief without any reasonable cause.
It seems to me that the
respondents can process these cases speedily and make payments where
it is due. It is understood that
the government and its organs
cannot make unauthorised and fruitless payment. On the other hand it
is a worse evil to pay out
huge sums of money to lawyers and deprive
destitute citizens who qualify for the grant of a meagre R900-00
each. See
PERMANENT SECRETARY, DEPARTMENT OF WELFARE, EC v NGXUZA
2001 (4) SA 1184
(SCA)
at para 4 and 5 (pp 1192-1194A) whereat
Cameron JA, writing fo the Full Bench (5 judges) had this to say:
“
[4]
In the type of class action at issue in this case, one or more
claimants litigate against a defendant not only on their own
behalf
but on behalf of all other similar claimants. The most important
feature of the class action is that other members of the
class,
although not formally and individually joined, benefit from, and are
bound by, the outcome of the litigation unless they
invoke prescribed
procedures to opt out of it. The class action was until 1994 unknown
to our law, where the individual litigant’s
personal and direct
interest in litigation defined the boundaries of the court’s
powers in it. If a claimant wished to participate
in existing court
proceedings, he or she had to become formally associated with them by
compliance with the formalities of joinder.
The difficulties the
traditional approach to participation in legal process create are
well described in an analysis that appeared
after the class action
was nationally regularised in the United States through a Federal
Rule of Court more than 60 years ago:
‘
The
cardinal difficulty with joinder... is that it presupposes the
prospective plaintiffs’ advancing en masse on the courts.
In
most situations such spontaneity cannot arise either because the
various parties who have the common interest are isolated,
scattered
and utter strangers to each other. Thus while the necessity for group
action through joinder clearly exists, the conditions
for it do not.
It may not be enough for society simply to set up courts and wait for
litigants to bring their complaints –
they may never come.
What is needed, then,
is something over and above the possibility of joinder. There must be
some affirmative technique for bringing
everyone into the case and
for making recovery available to all. It is not so much a matter of
permitting joinder as of ensuring
it.’
[5] The class action
cuts through these complexities. The issue between the members of the
class and the defendant is tried once.
The judgment binds all and the
benefits of its ruling accrue to all. The procedure has particular
utility where a large group of
plaintiffs each has a small claim that
may be difficult or impossible to pursue individually. The mechanism
is employed not only
in its country of origin, the United States of
America, where detailed rules governing its use have developed, but
in other countries
as well. The reason the procedure is invoked so
frequently lies in the complexity of modern social structures and the
attendant
cost of legal proceedings:
‘
Modern
society seems increasingly to expose men to such group injuries for
which individually they are in a poor position to seek
legal redress,
either because they do not know enough or because such redress,
either is disproportionately expensive. If each
is left to assert his
rights alone if and when he can, there will at best be a random and
fragmentary enforcement, if there is
any at all.’”
The following order
is made:
The first, second and
fourth respondents (the MEC for Social Development, the Disaster
Relief Fund Board and the National Minister
of Social Development,
respectively) are directed to consider and decide upon the
applicants’ applications for drought
relief made on 15 May
2004 by not later than sixty (60) ordinary days of this order.
In the event of the
first, second and fourth respondents finding that that the
applicants or some of them are not entitled to
drought relief, the
first, second and fourth respondents are directed to furnish written
reasons for their decision in this regard
to the applicants’
attorneys of record by not later than thirty (30) ordinary days of
such decision having been taken.
The one hundred and
eighty day period (180) envisaged in terms of
section 7(1)
of the
Promotion of Administrative Justice Act, 3 of 2000
, is extended and
non-compliance therewith is condoned.
The second and fourth
respondents are ordered to pay the applicants’ costs jointly
and severally, the one paying the other
to be absolved.
__________________________
BM
PAKATI
ACTING JUDGE
NORTHERN CAPE DIVISION
Appearing for the
Applicants
Adv R Quinn SC instructed
by Towell & Groenewaldt Attorneys, Kimberley
Appearing for
Respondents 1, 2 and 4
Adv R Mogagabe SC
instructed by the State Attorney, Kimberley