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[2010] ZAFSHC 73
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National Association of Welfare Organisations and Non-Governmental Organisaions and Others v MEC of Social Development, Free State and Others (1719/2010) [2010] ZAFSHC 73 (5 August 2010)
FREE STATE HIGH
COURT, BLOEMFONTEIN
REPUBLIC OF SOUTH
AFRICA
Case No.: 1719/2010
In the
matter
between:-
NATIONAL
ASSOCIATION OF WELFARE
First
Applicant
ORGANISATIONS AND
NON-GOVERNMENTAL
ORGANISATIONS
N.G.
SOCIAL SERVICES FREE STATE
Second
Applicant
FREE
STATE CARE IN ACTION
Third
Applicant
and
MEMBER
OF THE EXECUTIVE COUNCIL
First
Respondent
FOR SOCIAL
DEVELOPMENT, FREE STATE
HEAD
OF THE DEPARTMENT OF SOCIAL
Second
Respondent
DEVELOPMENT, FREE
STATE
NATIONAL
MINISTER OF SOCIAL
Third Respondent
DEVELOPMENT
_____________________________________________________
HEARD
ON:
24
JUNE 2010
_____________________________________________________
JUDGMENT
BY:
VAN
DER MERWE, J
_____________________________________________________
DELIVERED
ON:
5
AUGUST 2010
_____________________________________________________
Introduction
[1] The
essential
question
for determination in this application is whether the policy of the
first and second respondents in respect of funding of
nonprofit
organisations (“NPO’s”) that provide social welfare
services to the needy and the vulnerable in the
Free State Province,
is in accordance with the constitutional and statutory obligations of
the first and second respondents.
[2] The
first applicant is a legal person situated in Bloemfontein. Its main
object is to influence policy, legislation and practice
that impact
on the delivery of social services by its members. The first
applicant has in the order of 70 members that provide
welfare
services in the Free State. These members include the second and
third applicants. All these members of the first applicant
are
organisations delivering welfare services without profit and are
registered in terms of the
Nonprofit Organisations Act, 71 of 1997
.
[3] The
first applicant acts herein on behalf of its members. The first,
second and third applicants also act herein in the interest
of
children, older persons and other vulnerable members of society in
need. It is not disputed that the applicants are entitled
to do so
in terms of section 38 of the Constitution.
[4] The
first respondent is the member of the executive council for social
development in the Free State. The second respondent
is the head of
the department of social development of the Free State. The third
respondent is the national Minister of Social
Development. No relief
is claimed against the third respondent and the third respondent did
not oppose the application. For the
sake of convenience, the first
and second respondents and the officials acting on their behalf, will
collectively be referred to
as “the department”, unless
indicated otherwise.
[5] The
application was brought in two parts. Firstly, an interim order on
urgent basis was sought, pending the determination of
substantial
relief. The interim relief was aimed at enforcing payment by the
department of increased subsidies to some members
of the first
applicant and payment of allocated subsidies to the other members of
the first applicant. The former was referred
to as emergency relief.
The application for interim relief served before me on 20 May 2010.
At the same time another application,
no. 2146 of 2010, brought by
the department, also served before me. In this application the
department sought an extensive order
of discovery in terms of rule
35(13) as well as postponement of the application of the applicants
for substantial relief for a
substantial period of time, intended to
enable the department to compile answering affidavits only after
studying the discovered
documents. It is fair to say that the
discovery sought was mainly aimed at documents reflecting the assets
and income of the applicants
and the members of the first applicant.
On 20 May 2010 the application of the department was dismissed
in
toto
,
but costs thereof reserved for later determination. Also on 20 May
2010 an interim order was granted for payment of allocated
subsidies
only, as well as orders that were necessary to direct the future
conduct of the application. Costs of the application
for interim
relief were also reserved. On 24 June 2010 the application for
substantial relief as well as the reserved costs were
argued.
[6] The
substantial relief now sought by the applicants, is set out in a
draft order attached to their heads of argument. There
was rightly
no objection to this procedure, as there could be no prejudice to the
department. Essentially the applicants move
for what has become
known as a structural interdict. Broadly summarised the relief now
claimed is as follows. Firstly, an order
is sought declaring that
the department is in breach of its constitutional and statutory
duties in terms of sections 8, 9, 26,
27, 28, 41(1)(b) and (c),
195(1)(b), (c), (d), (e) and (f) and 237 of the Constitution,
section
6
of the
Promotion of Equality and Prevention of Unfair
Discrimination Act, 4 of 2000
,
sections 4(2)
,
6
(2) and
8
(2) of the
Children’s Act, 38 of 2005,
sections 3(1)
,
3
(2),
3
(3) and
section 8
of the
Older Persons Act, 13 of 2006
,
section 56
of the
Child Justice Act, 75 of 2008, section 57 of the Prevention and
Treatment of Substance Abuse Act, 70 of 2008 and
sections 2
and
3
of
the
Nonprofit Organisations Act, 71 of 1997
. Secondly, an order is
sought that the department complies with the aforesaid constitutional
and statutory obligations and adopt
and implement policies and
programmes for the determination and payment of social welfare
subsidies which comply with a number
of broadly stated requirements
set out in the draft order. The third order sought is that the
department shall deliver, within
four months of date of the order, a
report under oath stating essentially what steps have and will in
future be taken to comply
with its constitutional and statutory
obligations referred to above. Finally, orders are sought that the
applicants may within
one month of delivery of the report of the
department, deliver their commentary on the report, that the
respondent shall within
one month of delivery of the commentary
deliver their reply to the commentary and that thereafter the matter
be enrolled for consideration
and determination of the report,
commentary and reply. The applicants also seek the aforesaid
emergency interim relief pending
finalisation of this process and/or
interim relief similar to that granted on 20 May 2010.
Background
[7] As
a result of a variety of historic and economical factors, many people
and
communities in the Republic of South Africa and the Free State are in
dire need of care, protection and welfare services. It
is not
disputed that in the Free State the department is responsible to
address and alleviate these needs. What exactly the nature
and ambit
of the obligations and duties of the department are in this regard,
will be addressed shortly.
[8] The
work of the department consists of three programmes, namely programme
one: administration, programme two: social welfare
services and
programme three: research and development. Programme two in turn
consists of eight sub-programmes, namely substance
abuse, prevention
and rehabilitation; care and services to older persons; crime
prevention and support; services to persons with
disabilities; child
care and protection services; victim empowerment; HIV and Aids; and
care and support services to families.
Child care and protection
services are by far the largest sub-programme.
[9] For
many years NPO’s such as the members of the first applicant
assisted in addressing these needs in the Free State.
Presently some
1 400 NPO’s are involved in this work in the Free State. The
department recognises that these NPO’s
play a major role in
providing social welfare services.
[10] In
terms of the budget of the department, approved by the provincial
legislature on 31 March 2010, the amount of R721 690 000,00
is
allocated to the department for the 2010/2011 financial year
commencing on 1 April 2010, the amount of R788 510 000,00 for the
2011/2012 financial year and the amount of R829 546 000,00 for the
2012/2013 financial year. The amounts constitute year on year
increases of 7,73% for 2010/2011, 9,26% for 2011/2012 and 5,2% for
2012/2013. Of the amount of R721 690 000,00 the amount of R486
256
000,00 is allocated to the aforesaid programme two: social welfare
services. The remainder of the budget allocation of R721
690 000,00
namely R235 434,00 approximately 75% is allocated to programme one:
administration and approximately 25% to programme
three: research and
development. Of the amount of R486 256 000,00 the amount of R283 600
000,00 is allocated to transfers to NPO’s.
The other major
component of the allocation to programme two is compensation for
employees in the amount of R153 418 000,00.
As will be shown, it is
accepted by the department that the amount of R283 600 000,00 is
inadequate to cover the costs of the NPO’s.
Relevant
services provided by NPO’s
[11] It
is necessary to give an overview of the social welfare services
provided by the first applicant’s members and the
other NPO’s
involved, that I consider to be material and relevant for the
determination of this application.
[12] The
services provided by NPO’s
in respect of children in need, are essentially firstly, the
provision and operation of child and youth care centres and the
provision
of programmes and shelters to street children and other
children in difficult circumstances. It is important to note that
all
children in child and youth care centres are children found to be
in need of care and protection by a children’s court and
placed
in the child and youth care centre by order of the children’s
court.
Section 191(2)
of the Children’s Act provides that a
child and youth care centre must offer a therapeutic programme
designed for the residential
care of children outside the family
environment.
[13] The
department recognises that approximately 2 000 beds in child and
youth care centres are needed in the Free State. Presently
approximately 1 085 such beds are available. Only approximately 320
beds in child and youth care centres are provided by the department
itself in two children’s homes, namely Tshireletsong and
Leratong. Approximately 765 beds are provided by NPO’s, of
which 700 are provided by the second applicant. In line with the
department’s policies the second applicant moved away from
large children’s homes or orphanages to a decentralised care
model based on an emulation of a normal family home. The second
applicant still operates the Charlotte Theron child and youth care
centre in Bethlehem where 135 children are cared for and Our
Child
and youth care centre in Bloemfontein where 100 children are cared
for. The second applicant, however, at the cost of millions
of rands
established 31 decentralised child and youth care centres in 26 towns
in the Free State. Children of all races and cultural
groups are
cared for in these centres. Between twelve and thirty children of
both sexes are cared for per centre and siblings
are, where possible,
placed in the same centre. All of these centres were approved by and
registered with the department. Already
in 2004 the department
envisaged 50 decentralised child and youth care centres in the Free
State. The second applicant, however,
is unable to establish further
centres without external funds for both capital and operational
expenses.
[14] At
any given time there are approximately 300 street children in the
Free State as well as approximately 300 children in difficult
circumstances, accommodated in ten shelters. Two types of programmes
are utilised to care for these children, namely first, outreach
and
drop-in programmes and second, shelters. Most of these services are
provided by NPO’s.
[15] The
second applicant’s programme for the care of older persons
entails residential care, community-based care and sub-economic
and
economic housing projects. The second applicant operates 18
residential centres for older persons, which also provide frail
care
services. The centres also provide community-based services for
older persons. Community services cover a wide spectrum
of services
aimed at empowering older persons to remain functional within their
communities for as long as possible. These projects
include feeding
schemes, health services and home care and approximately 5 200 people
benefit therefrom, 80% of whom are from previously
disadvantaged
communities. The second applicant cares for approximately 1 000
older persons in residential centres. The third
applicant operates
14 homes, 20 sub-economic housing schemes and 13 service centres for
older persons. Approximately 760 older
persons are cared for in
residential care centres and about 3 000 older persons are reached
through service centres. Some of these
older persons are unable to
make a meaningful contribution to the residential care or other
services received. In 2008/2009 the
second applicant received
subsidies for approximately 290 older persons in residential care.
For the sake of convenience older
persons that are unable to make a
meaningful financial contribution to residential care or services,
are hereinafter referred to
as older persons in need.
[16] The
second applicant operates one care facility for disabled persons as
well as day-care centres for adult disabled persons.
Some of these
persons are in no position to make a financial contribution to the
care received. Subsidies are received from the
department in respect
of only one day-care centre. The second applicant also provides
prevention and development programmes in
respect of HIV and Aids,
sexual molestation and alcohol and drug abuse. For convenience I
refer to disabled persons and persons
affected by HIV and Aids,
sexual molestation and alcohol and drug abuse that are unable to make
a meaningful financial contribution
to the care and services
received, as vulnerable persons in need.
[17] There
are many services that by statute are required to be rendered by
registered social workers. I will refer to these as
statutory
services. Statutory services include the safeguarding and placement
of children in need of care and protection, recruitment
and selection
of foster parents as well as placement of children in foster care and
foster care supervision services and family
reunification services,
adoption services and services in respect of alcohol or drug
dependants. There are, for instance, more
than 50 000 foster
children in the Free State, most of whom are orphans.
[18] The
department acknowledges that approximately 40% of the statutory
services in the Free State are provided by NPO’s.
The second
applicant, for instance, operates in 18 towns in the Free State. In
six of these towns the second applicant is responsible
for the entire
spectrum of statutory services. The third applicant operates 14
social work offices which provide these statutory
services in 17
towns.
The
department’s policy in respect of funding of NPO’s
[19] The
next question is what the polic
y
of the department is in respect of funding of NPO’s that
provide social welfare services to children, older persons and
vulnerable persons in need as well as statutory services. In its
answering affidavit the department referred to three policy
documents. The first is “Policy on Financial Awards to Service
Providers” of 2004. The second is “Procedure
Guidelines
for the Implementation of the Policy on Financial Awards to Service
Providers” of 2005. The third is “Policy
on Financial
Awards to the Nonprofit Organisations in the Social Development
Sector” of August 2003.
[20] The
first of these policy documents is a national document approved at a
Minmec meeting in November 2004. As appears from
its title, the
purpose of the second document is to provide procedure guidelines for
the implementation of the national policy.
In the procedure
guidelines it is stated that the guidelines are aimed at giving broad
direction to the implementation of the
national policy, but that
provinces may within the context of the guidelines develop more
specific guidelines in order to address
provincial peculiarities.
The third policy document referred to above, is the relevant policy
of the department.
[21] The
relief claimed by the applicants is that it should be declared that
the Free State policy is flawed and should be redrafted
or revised.
In any event, the Free State policy encompasses the same subjects as
both the national policy and the guidelines,
in virtually the same
terms. Save for briefly indicating the background and main
principles of the national policy that informs
the Free State policy,
I therefore do not find it necessary to go into the detail of the
national policy or the guidelines for
its implementation. For the
sake of convenience the Free State policy will be referred to simply
as “the policy”.
[22] The
national policy commences by stating that historically social welfare
services have been a joint responsibility of government
and civil
society, with the government providing financial support to
organisations through subsidisation and that the current
realities of
the country demand that government review the manner in which it is
expending its resources to ensure that there is
equitable
redistribution to the historically disadvantaged. It is stated that
the policy strives to facilitate the achievement
of the mission to
enable the poor, the vulnerable and the excluded within the South
African society to secure a better life for
themselves, in
partnership with them and with those who are committed to building a
caring society. The critical rule that the
NPO sector has played in
service provision is acknowledged. It is stated that the objectives
of the policy are to:
“•
Establish
the funding relationship between the Department and service providers
that render developmental social welfare services.
•
Determine
the requirements and mechanisms for making financial awards to
service providers rendering developmental social welfare
services.
•
Provide
a tool to facilitate the transformation of social welfare service
delivery.
•
Develop
the capacity of emerging and previously disadvantaged organisations
that do no have the resources but understand and could
meet
the needs of the communities.
•
Create
an
enabling environment for new service providers previously excluded
from government funding.
•
Provide a
basis for the redistribution of resources in a more equitable
manner.”
“
Department”
should be understood as the national or provincial department
responsible for providing social development and
welfare services
directly or indirectly. “Developmental social welfare”
has the following meaning:
“
This
focuses on social protection, the maximisation of human potential and
fostering self-reliance and participation in decision-making.
It
concentrates on the causes and e
ffects
of social vulnerability and marginalisation, and the delivery of
integrated services to communities, families and persons
affected by
there phenomena.”
[23] The
national policy recognises “a major responsibility and mandate
to deliver the best possible service to society, particularly
to the
vulnerable and poor sectors
”.
It is stated then that specifications will determine priorities for
service delivery at either national or provincial
level. This policy
states that the relevant department recognises that it is not the
sole funder of services to the poor and vulnerable
sector of the
community. It further recognises that in particular,
well-established organisations have the capacity and the necessary
infrastructure to raise funds. Therefore funding is provided with
the understanding that these organisations do and will raise
funds
from other sources such as other state departments, donor
organisations, corporate social responsibility programmes from
the
private business sector, through trusts and foundations and the
proceeds from lotteries. The relevant department plays a major
role
in organising the supply of services. It does so either by supplying
the service itself, or by outsourcing the supply of
services to
service providers and that the national policy concerns itself with
the latter.
[24] It
is then in essence stated in the national policy that in order to be
eligible for financing, NPO’s must be legal persons
that comply
with stated requirements, that business plans containing required
information must be submitted by the NPO’s
to show how service
specifications will be complied with and that a contract must be
entered into between the NPO and the relevant
department.
[25] In
the procedure guidelines the following is stated in respect of
funding criteria and costing:
“
The
financial criteria will be based on formulas that are approved by the
Head of Department on the recommendation of the Chief
Financial
Officer. These formulas will include appropriate benchmarks for the
calculations of a minimum uniform budget of the
business plan to
ensure a uniform financial assessment model.
..........
The
duration of funding will not exceed the period of
12
months as stipulated in the memorandum of agreement between the Head
of Department and the service provider...
The amount of
funding will depend on the following:
•
The costs
of the project, as verified by the Department;
•
the
organisation’s ability to implement a programme;
•
the
income-generating potential of the programme;
•
comparative
costs for a similar programme;
•
the
purpose for which the funds are requested; and
•
the
potential impact of the project in terms of numbers and outcomes.”
[26] In
the introduction to the policy it is stated that the department
acknowledges and appreciates service providers in the Free
State
Province that have partnered with the department
in
its commitment to serve the people of the province, especially those
who are poor and vulnerable and from the previously disadvantaged
communities, in a committed and accountable manner. Paragraph 2.2.1
of the policy sets out the broad categories of services in
respect of
which a financial award (transfer payment) for the delivery of social
development services may be applied for by NPO’s,
within the
scope of limited resources and the department’s priorities and
strategic objectives. These categories include
services to children
and families, services that are aimed at the prevention of HIV and
Aids and support to people infected or
affected by HIV and Aids,
youth development, victim empowerment services, services to people
with disabilities, services to older
persons, prevention and support
services for alcohol and substance abuse. In paragraph 2.3.1 it is
stated that the making of financial
awards by the department depends
on the availability of funds and the need for such a service in terms
of the department’s
strategic objective. The department will
make financial awards to support nonprofit organisations in the
achievement of its goals
and objectives subject to those goals and
objectives falling within the priorities, objectives and
specifications of the department.
Paragraph 2.3.2 sets out the
requirements for the service provider to be eligible for a financial
award from the department.
This includes that the service provider
must be a registered nonprofit organisation that provides services or
intends to provide
services to the people and communities of the Free
State.
[27] Paragraph
8 of the policy deals with service specifications. It states that
service specifications are based on the determination
of need for
services. Based on the need for services the department will develop
service specifications that aim to meet those
needs. The service
specifications are published no later than 30 September of each year
in order to call for submissions from
the NPO sector to assist in
addressing these needs.
[28] Paragraph
9 of the policy deals with service plans (also called business plans)
that are submitted by NPO’s and are regarded
as applications
for funding for provision of services in accordance with the specific
service specification.
[29] Paragraph
11.6 deals with the financial assessment of business plans. It is
stated that financial appraisal of the service
plan and
allocation of financial awards take place in accordance with the
financial assessment criteria of the department. The financial
assessment criteria are based on formulae for funding approved by the
second respondent. The formulae for funding take into consideration
programme funding as the primary basis of funding. Such formulae
include appropriate benchmarks for the calculation of a minimum
uniform budget for the service plan to ensure a uniform financial
assessment model. The final determination of the amount of the
financial award is based on the available funds on the budget of the
specific sub-programme and service. Due to limited resources
the
department makes financial awards to support the service provision of
the NPO sector and the actual amount of the award does
not represent
the full costs of the service. Finally, it is stated that the
determination of the final award is the prerogative
of the department
and that applicants for financial awards have the opportunity to
accept or reject the award.
[30] Once
the financial award is determined by the department in terms of an
approved service plan, the NPO is required to enter
into a written
agreement with the department in respect of the financial award, with
a duration of one year. If agreement cannot
be reached or the
particular NPO is not willing to sign the agreement, the approval of
the financial award to the particular NPO
can be withdrawn and the
department may enter into negotiations and an agreement with an
alternative service provider to ensure
that the department achieves
its strategic objectives and fulfils its responsibility to provide
the service. (Para 12.4.4)
[31] In
terms of the policy therefore, NPO’s provide social welfare
services required by the department, but are funded on
the basis of
subsidies determined as a prerogative of the department. This is
verbalised as follows in the answering affidavits:
“
Sight
must not be lost of the fact that whilst the Department has no choice
other than to fully fund the facilities operated by
it, it funds
NPO’s on the understanding that:
42.1 the said
funding is merely a subsidy, in other words financial aid intended to
supplement its income;
42.2 they do and
will raise funds from other sources such as other state departments,
donor organisations, private sector, corporate
social responsibility
programmes, trusts, foundations and the lotteries.”
[32] Although
the department and the NPO in question enter into an agreement
in
respect of funding, counsel for the department fairly conceded that
matters of public law and policy are involved and that the
relationship between the department and the NPO is not only governed
by the terms of that agreement. The reality in terms of the
policy
is that NPO’s have to sign the agreement or receive no funding
at all from the department. It is true of course that
the members of
the first applicant and other NPO’s do have resources of their
own as well as other sources of income than
subsidies paid by the
department. Information in this regard is disclosed to the
department in terms of the service plans submitted.
These other
sources of income are mainly fundraising projects and donations. It
is not disputed however that it has become increasingly
difficult to
derive income from these sources.
The
impact of the policy on NPO’s
[33] The
next question is what the effect and impact
is
of the implementation of the policy in respect of the aforesaid
social welfare services. In this regard undisputed evidence
reveals
what is stated in the following paragraphs.
[34] The
department accepts that an amount of R4 000,00 per child per month is
the acceptable norm for the costs of caring for a
child in a child
and youth care centre. In terms of the costing of the Children’s
Act done by the national department of
social development, the amount
of R6 000,00 per child per month will be needed. The amounts
actually expended by the department
in respect of its two child and
youth care centres are R5 000,00 per child per month in the case of
Tshireletsong and R6 750,00
in the case of Leratong. This appears
from the written answer given by the first respondent on 17 September
2009 in response to
a question raised in the provincial legislature.
The subsidy of the department for child and youth care centres for
the 2011/2012
financial year however amounts to R2 091,00 per child
per month, increased from R1 999,84 per child per month for the
previous
year. The second applicant, who as stated before provides
700 out of approximately 1 085 beds in child and youth care centres,
says that it is unable to make up this difference. This,
inter
alia
,
resulted in the second applicant having to provide three very basic
meals per day at the cost of only R11,84 per child per day,
whereas
at least R50,00 is needed per child per day. Shelters for street
children and children in difficult circumstances receive
a subsidy of
between R400,00 to R500,00 per child per month. The department
acknowledges that at least R2 000,00 per child per
month is needed in
this regard. The second applicant states that unless increased and
sustainable funding is received, it will
be unable to continue to
render a service which meets the needs of these children.
[35] Subsidies
are also inadequate to meet the actual needs addressed by the second
and third applicants in respect of the care
of older persons and
vulnerable persons in need as well as in respect of statutory
services. The subsidy for older persons in
need during 2009/2010
amounted to R1 925,00 per person per month. This is substantially
inadequate. The second and third applicants
are unable to make up
the shortfall from own resources and sources of income. In the
result it has become increasingly difficult
to cater for the most
vulnerable of older persons and other vulnerable persons, namely
those that are unable to make a financial
contribution to care or
services.
[36] As
a result of a lack of sufficient funds to employ more social workers,
social workers employed by the second and third applicants
that,
inter
alia
,
have to perform statutory services, have to carry untenable
workloads. The second and third applicants state that they will have
no option but to terminate or scale down these services.
The
obligations of the department
[37] It
has to
be determined what the rights are of the aforesaid persons cared for
by the NPO’s, namely children, older persons and vulnerable
persons in need as well as what the obligations of the State are in
respect of these persons and the statutory services performed
by the
NPO’s. It is not disputed that the obligations of the State in
this regard must, in the Free State, be discharged
by the department.
[38] The
departure point of course is the foundational constitutional values
of human dignity, equality and freedom.
[39]
Section
28(1)(b)
– (d) provide as follows:
“Every
child has the right-
.....
to family care
or parental care, or to appropriate alternative care when removed
from the family environment;
to basic
nutrition, shelter, basic health care services and social services;
to be protected
from maltreatment, neglect, abuse or degradation.”
Section
28
contains no internal limitation as is found in sections 26(2) or
27(2) of the Constitution.
[40] In
GOVERNMENT
OF THE REPUBLIC OF SOUTH AFRICA AND OTHERS v GROOTBOOM AND OTHERS
2001 (1) SA 46
(CC) at 82 para [77] Yacoob J said the following:
“
It follows from ss 1
(b)
that the Constitution
contemplates that a child has the right to parental or family care in
the first place, and the right to alternative
appropriate care only
where that is lacking. Through legislation and the common law, the
obligation to provide shelter in ss (1)
(c)
is imposed primarily on the
parents or family and only alternatively on the State. The State thus
incurs the obligation to provide
shelter to those children, for
example, who are removed from their families. It follows that s 28(1)
(c)
does
not create any primary State obligation to provide shelter on demand
to parents and their children if children are being cared
for by
their parents or families.”
See also
MINISTER
OF HEALTH AND OTHERS v TREATMENT ACTION CAMPAIGN AND OTHERS
[2002] ZACC 15
;
2002 (5) SA 721
CC at 750 para [79]. In terms of section 28(1)(b) –
(d) of the Constitution the State therefore has the obligation to
provide
care and protection to children removed from the family
environment, such as children removed to child and youth care centres
and
to street children.
[41] However, in terms of
the principle of constitutional subsidiarity, where legislation has
been enacted to give effect to a constitutional
right, a litigant who
does not challenge the legislation as being inconsistent with the
Constitution, should rely on that legislation
and cannot circumvent
that legislation by attempting to rely directly on the constitutional
right. See
MEC
FOR EDUCATION, KWAZULU-NATAL, AND OTHERS v PILLAY
[2007] ZACC 21
;
2008 (1) SA 474
(CC) at 488 – 489 para [40] and
MAZIBUKO
AND OTHERS v CITY OF JOHANNESBURG AND OTHERS
2010 (4) 1 (CC) at 23 – 24 para [73].
[42] Section
4(2) of the Children’s Act provides as follows:
“
Recognising
that competing social and economic needs exist, organs of state in
the national, provincial and where applicable, local
spheres of
government must, in the implementation of this Act, take reasonable
measures to the maximum extent of their available
resources to
achieve the realisation of the objects of this Act.”
[43] The objects of the
Children’s Act include giving effect to constitutional rights
of children. This is dealt with in
section 2(b) which states that it
is an object of the Act:
“
(b)
to give effect to the following constitutional rights of children,
namely-
(i)
family care or parental care or appropriate alternative care when
removed from the family environment;
(ii) social
services;
(iii) protection
from maltreatment, neglect, abuse or degradation; and
that the best
interests of a child are of paramount importance in every matter
concerning the child.”
[44] It
is immediately apparent that subsection 2(b) does not make express
reference to the rights of children to basic nutrition,
shelter and
basic health care services. Does this mean that the Children’s
Act does not intend to give effect to these rights
as opposed to the
rights to appropriate alternative care, social services and
protection from maltreatment, neglect, abuse or degradation?
I do
not think so. As stated in the
GROOTBOOM
-case,
supra
,
p. 82 para [76], subsection 28(1)(b) of the Constitution defines
those responsible for giving care while subsection (1)(c) lists
various aspects of the care entitlement. In terms of these
subsections the State must provide appropriate alternative care to
children removed from the family environment. The Children’s
Act provides for alternative care in the form of foster care,
care in
child and youth care centres and temporary safe care. Appropriate
alternative care in terms of subsection 2(b), must in
context
necessarily include basic nutrition, shelter and basic health care.
Section 2(g) of the Children’s Act provides
that it is an
object thereof to provide care and protection to children who are in
need of care and protection and section 2(i)
provides that it is an
object thereof generally to promote the protection, development and
well-being of children. When it is
stated in section 2 that the
object of the Children’s Act is,
inter
alia
,
to give effect to rights of children to appropriate alternative care
when removed from the family environment, to provide care
and
protection to children who are in need of care and protection and to
generally promote the protection, development and well-being
of
children, it could in my view not have been intended not to also give
effect to the rights to basic nutrition, shelter and basic
health
care services. It follows in my judgment that in terms of section
4(2) of the Children’s Act the State is obliged
to take
reasonable measures to the maximum extent of its available resources
to achieve the realisation of the rights of children
set out in
section 28(1)(b), (c) and (d) of the Constitution.
[45]
Section
2
of the
Older Persons Act, 13 of 2006
, contains the objects of the Act. The
objects include to maintain and promote the status, well-being,
safety and security of older
persons and to maintain and protect the
rights of older persons. Section 7 states that older persons enjoy
the rights contemplated
in section 9 of the Constitution and that
older persons, in particular, may not be unfairly denied the right
to,
inter
alia
,
live in an environment catering for his or her changing capacities.
The Act provides in chapter 3 thereof for community-based
care and
support services for older persons and in chapter 4 thereof, for
residential facilities for older persons. Section 10
provides that
an older person receiving community-based care and support services,
has in addition to the rights contemplated in
section 7,
inter
alia
,
the right to reside at home as long as possible and to benefit from
family and community care and protection in accordance with
society’s
system of cultural values. Section 16 in turn states that an older
person residing in a residential facility has,
in addition to the
rights he/she has in terms of the Bill of Rights or any other rights
he/she may have,
inter
alia
,
the right to access to basic care and to privacy. Section 3(2) of
the Act is virtually identical to section 4(2) of the Children’s
Act and provides that recognising that competing social and economic
needs exist, organs of state must take reasonable measures
to the
maximum extent of their available resources to achieve the
realisation of the objects of the Act. It follows that it is
the
obligation of the State to take such reasonable measures to achieve
the realisation of the rights of older persons who are
in need.
[46] Vulnerable
persons in need at least have the rights to access to adequate
housing, health care services and sufficient food
and water set out
in sections 26 and 27 of the Constitution. The State has the
obligation to take reasonable measures within its
available resources
to achieve the progressive realisation of these rights. The State is
also clearly obliged to provide the aforesaid
statutory services.
Reference can be made in this regard for example to the services that
must be provided by social workers in
terms of sections 155, 156 and
157 of the Children’s Act in respect of children in need of
care and protection, sections
182, 184 and 187 of the Children’s
Act in respect of foster care and sections 231, 233, 234 and 239 of
the Children’s
Act in respect of adoption. See also section 21
– 23 of the Prevention and Treatment of Drug Dependency Act,
No. 20 of 1992,
in respect of alcohol and drug dependents as well as
sections 25
and
28
of the
Older Persons Act in
respect of older
persons in need of care and protection and abused older persons.
Does
the policy comply with the department’s obligations?
[47] Does
the policy comply with these constitutional and statutory obligations
of the department? As pointed out above, the policy
provides in all
cases where NPO’s provide social welfare services, including in
the case
s
where the NPO’s discharge the obligations of the department,
for a take it or leave it subsidy as a prerogative of the department.
In my judgment this is fundamentally flawed. As stated above, it is
the constitutional and statutory obligation of the department
to care
for children, older persons and vulnerable persons in need and to
provide statutory services, albeit by reasonable measures
to the
maximum extent of available resources or within available resources.
This should be recognised in the policy as a fundamental
principle of
funding. It is not necessary for present purposes to determine
whether reasonable measures to the maximum extent
of available
resources to achieve the realisation of rights as in
sections 4(2)
of
the Children’s Act and 3(2) of the
Older Persons Act are
higher
standards than reasonable measures within available resources to
achieve the progressive realisation of rights as in sections
26(2)
and 27(2) of the Constitution. I find therefore that the policy
fails to recognise, as a fundamental principle of funding,
that NPO’s
that provide care to children, older persons and vulnerable persons
in need as well as statutory services, fulfil
constitutional and
statutory obligations of the department.
[48] Having
said this however, I do not think that in considering funding of
these NPO’s it is unreasonable to take into account
that the
NPO’s have or may have resources of their own and sources of
income other than State funding, such as interest received,
fundraising projects and donations. There is a need to address
historical imbalances in respect of funding of social welfare
services. There is a huge need for these services but a chronic
shortage of funds to meet the needs. Fundraising and donations
mostly raise funds from corporations and members of the general
public wishing to assist in alleviating these pressing needs.
The
particulars of these resources, sources of income or expected income
are relatively easy to provide and are in fact made available
to the
department.
[49] Reasonableness
in this regard must be determined in the context
of
the Bill of Rights as a whole. What should be contributed from own
resources and/or sources of income by the NPO’s that
fulfil the
obligations of the department, cannot be determined arbitrally. To
be a reasonable measure in this regard, the policy
must contain a
fair, equitable and transparent method of determination of what these
NPO’s are able and should contribute
to the provision of care
for children, older children and vulnerable persons in need and
statutory services. The department must
show that the policy is
reasonable in this respect. See the
MAZIBUKO
-case,
supra
,
p. 52 paras [161] and [162]. In my judgment the department did not
do so. The policy lacks any method of determination described
above,
because its premise is that it does not require one. In this respect
therefore, the policy is not a reasonable measure
as required.
The
Relief
[50] It
follows that in my judgment the applicants made a case for a
declaratory order in accordance with these findings.
[51] The
applicants placed much emphasis on the disparity in funding referred
to above and argued that the policy and its implementation
amount to
unfair discrimination. I do not find it necessary to deal with the
question of equality and unfair discrimination.
If the policy is
redrafted or adjusted in accordance with what is stated above, there
should be no question of unfair discrimination.
Also the applicants
did not show that the department is in breach of
section 6
of the
Promotion of Equality and Prevention of Unfair Discrimination Act, 4
of 2000
, section 56 of the Child Justice Act, 75 of 2008, or
sections
2
and
3
of the
Nonprofit Organisations Act, 71 of 1997
. As on 30
June 2010 the Prevention and Treatment of Substance Abuse Act, 70 of
2008, had not yet come into operation.
[52] It
is of course not for me to say how the policy should be adjusted in
order to meet these shortcomings. Many factors are
involved and an
adjustment in one respect may have a material impact on others. The
department must respond to the declaratory
order. The question
however is whether the applicants also made a case for a structural
interdict. See the
TREATMENT
ACTION CAMPAIGN
-case,
supra
,
para [106] and [129].
[53] There are several
indications in the papers before me that the department lacks
leadership and/or capacity. To my mind this
is the real reason for
the much bemoaned failures of the department to pay even allocated
and agreed subsidies on time. There
is therefore reason to believe
that revision of the policy may not be done expeditiously or
efficiently. In the circumstances
I am satisfied that supervision by
the court is called for. The department did not object to the time
limits proposed by the applicants
in this regard.
[54] The applicants
rightly did not press for emergency interim relief. I am persuaded
that the balance of convenience justifies
the granting of an interim
relief similar to that granted on 20 May 2010.
Costs
[55] I deal firstly with
the costs of hearing of this application on 20 May 2010. It is true
that interim relief was granted to
the applicants in much the same
terms as was offered by the department in a letter dated 21 April
2010. On the other hand the
department unsuccessfully opposed the
grant of any interim relief on several grounds such as lack of
urgency and misjoinder. It
was in the circumstances also necessary
for the court to give orders directing the future conduct of the
case. In the exercise
of my discretion in respect of costs, I think
that it is fair to order that each party pays its own costs of the
hearing of this
application on 20 May 2010. Save for this, costs
should follow the result and the department be ordered to pay the
costs of the
application, including the costs of two counsel. The
same should in my view be ordered in respect of the department’s
application
no. 2146 of 2010.
[56] The following orders
are issued:
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.
7. Pending
the aforesaid determination, the first and second respondents shall
pay the subsidies which become due and payable in
terms of the
schedule attached to the letter of the attorney for the respondents
to the attorney for the applicants dated 21 April
2010, against
signature by each beneficiary of the memorandum of agreement required
by the first and second respondents.
8. Each
party shall pay its own costs of the hearing of this application on
20 May 2010. Save for these costs, the first and second
respondents
shall jointly and severally pay the costs of this application as well
as of application no. 2146/2010, including the
costs of two counsel.
________________________
C.H.G. VAN DER MERWE,
J
On
behalf of t
he
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