National Minister of Social Development and Another v Carolus and Others (1150/09) [2009] ZANCHC 36 (14 August 2009)

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[2009] ZANCHC 36
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National Minister of Social Development and Another v Carolus and Others (1150/09) [2009] ZANCHC 36 (14 August 2009)

Reportable: Yes / No
Circulate to Judges:
Yes / No
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Magistrates: Yes / No
IN
THE HIGH COURT OF SOUTH AFRICA
(
Northern
Cape High Court, Kimberley)
Case
no: 1150/09
Date
heard: 2009-08-07
Date
delivered: 2009-08-14
In
the matter of
:
NATIONAL
MINISTER OF SOCIAL DEVELOPMENT
1
ST
APPLICANT
THE
MEMBER OF THE EXECUTIVE COUNCIL,
DEPARTMENT OF SOCIAL
DEVELOPMENT,
NORTHERN CAPE PROVINCE 2
ND
APPLICANT
versus
JANNETJIE
CAROLU
S
AND OTHERS RESPONDENTS
Coram:
MAJIEDT
J
JUDGMENT
MAJIEDT J:
The Applicants apply on
an urgent basis for the following relief:
“
That the
First Applicant be ordered to take steps to ensure compliance with
paragraph 1 of the Order of Court dated 8 May 2009 in the matter

Jannetjie Carolus and Others/The Member of Executive Council,
Department of Social Development, Northern Cape Province and Others,

case no 363/09 in ninety (90) days from the date of this order.”
The application is
opposed by the Respondents. Ms Baloyi appeared for the Applicants
and Mr. Quinn SC for the Respondents.
On 8
May 2009 under case number 363/09
(“the main application”), Mabuse AJ issued the following order:
“
It is ordered that:
1. The First and/or
Second Respondents are directed to consider and decide upon the
Applicants’ applications for drought relief
made on 15 May 2004
within sixty (60) days from date of the order.
2. In the event the First and/or
Second Respondents find that the Applicants are not entitled to
drought relief, they are directed
to furnish written reasons for such
decision to the Applicants’ attorneys of record within 15 days of
such decision having been
taken.
3. The First and/or Second Respondents
are directed to pay the Applicants’ costs, such costs to include
the wasted costs occasioned
by the enrolment of the application for
the hearing on 3 April 2009.”
I
must at this early stage point out that the Respondents
in
the main application were as follows:
The First Respondent
was the Member of the Executive Council, Department of Social
Development, Northern Cape Province;
The Second Respondent
was the Disaster Relief Fund Board;
The Third Respondent
was the Upper Karoo Advice and Development Agencies (commonly
referred to as “Ukada”);
The Fourth Respondent
was the National Minister of Social Development.
The
gravamen of the Applicants’ case in the present matter is that the
First Respondent (the National Minister) requires more
time to
comply with the order issued by Mabuse AJ in the main application,
so as to establish a new Disaster Relief Fund Board,
since the
previous Board no longer exists. Ordinarily the relief sought in
this application would be a relatively straightforward
matter to
adjudicate upon, but the matter is considerably obfuscated by the
sloppy drafting of the Applicants’ papers in this
application.
The difficulties are exacerbated by the terms of the order issued by
Mabuse AJ as I shall in due course show.
In
the main application Mr. Carolus and 99 other applicants sought
relief from this Court, since they alleged that their applications

for drought relief in 2004 had not been processed by the First
and/or Second Respondents in that matter. The matter was initially

opposed, but a draft order was sought by agreement between the
parties and same was made an order of Court by Mabuse AJ. It
is
important to note that the Applicants in the main application
brought the application in terms of s5 of the Social Assistance
Act,
59 of 1992 (“the Act”), read with Regulation 27 of the Act.
Section 5(2) of the Act reads as follows:
“
The Director
General may, subject to the provisions of this Act, make a financial
award to a person if he or she is satisfied that
such person is in
need of social relief of distress.”
That
application was predicated upon the relief granted in the matter
s
of
Mweza
and Barends v MEC Social Services and Population Development and
Others
under case numbers 367/06 and 368/06, an unreported judgment
delivered in this Court on 12 December 2008 by myself with Williams J

concurring. Those two cases were regarded as test cases for many
others which were pending at the time in this Division. Although

those applications were unopposed, they were set down and heard
before two judges by the direction of then Acting Judge President

Bosielo, precisely because they were regarded as test cases.
Importantly however, the said judgment did not take cognisance of
the
regulations passed under the Act to which I shall allude in due
course.
The
applications for drought relief under the aforementioned s5(2) of
the Act were brought by the Applicants in the main application
as a
consequence of two proclamations issued by the President of the
Republic of South Africa on 23
January
2004 and 3 March 2005 in terms whereof certain areas in the country,
including the areas in which the Applicants are resident,
were
declared as disaster areas as a result of drought. Some R60 million
was made available for drought relief and the Applicants
duly lodged
applications for the said relief. They alleged in the main
application that their applications had not been processed
and
therefore sought the intervention of this Court. Relief was, as I
have stated, granted by Mabuse AJ by consent between the
parties.
Initially,
the deponent to the main founding affidavit in the present
application, the Director General of the National Department,
Mr.
Vusi Madonsela, averred that the order consented to by the
Respondents
in
the main application were made without the knowledge of the
Respondents and in their absence. The glaring contradiction in
the
aforementioned statement of fact by Mr. Madonsela is self-evident.
How could consent have been given to the order issued
by Mabuse AJ
in the absence of the Respondents and without their knowledge? This
contradiction was clarified later after the
Respondents had noted
their opposition to the urgent application in the present matter and
had filed a counterapplication for
a postponement of the matter as
well as an accompanying answering affidavit. In the answering
affidavit the Respondents pointed
out that in fact the present
Applicants,
qua
Respondents
in the main application, were duly represented by Ms Gcilitsana of
the local State Attorney’s Office. They averred
that she had
taken telephonic instructions from her clients and that the order
was made by agreement which she had obtained on
instruction from her
clients. Mr. Madonsela in his replying affidavit, confirmed that
this was indeed the case and went into
some detail, including the
disclosure of privileged attorney-client information, to illustrate
that his misstatement of fact
in the founding affidavit, set out
hereinabove, was based on serious miscommunication between him, his
officials and the State
Attorney’s office in Kimberley. I do not
deem it necessary to go into any detail with regard to the facts,
save to state that
Mr. Madonsela’s clarification in the replying
affidavit to an extent clears up the matter, but leaves a very
serious question
mark behind the levels of channels of communication
between his office and that of the State Attorney’s office in
Kimberley.
To expose the most senior official and accounting
officer in the National Department to such serious misstatements of
fact is
indeed of grave concern. Regardless of the aforementioned
problems, it can be safely accepted that the order issued by Mabuse

AJ set out above, was made by consent and that the present
Applicants were not only duly represented during those proceedings,

but had also properly instructed the attorney acting on their behalf
to consent to the order.
The
Disaster Relief Fund is a juristic person established in terms of
s16 of the Fundraising Act, 107 of 1978 (“the Fundraising
Act”).
Its objective is the rendering to persons, organisations and bodies
who or which suffered damages or loss caused by
a disaster, such
assistance
as
the Board may deem fair and reasonable.
Section 18(a)
of the
Fundraising Act sets
out designated groups for whom assistance is
envisaged in terms of the
Fundraising Act. A
flat sum of
compensation of R900,00 per Applicant was fixed in terms of the
proclamations in respect of the drought relief which
I had alluded
to above. These applications for drought relief was to be made to
the Disaster Relief Fund through Ukada as its
agent in the Karoo.
All the Applicants in the main application consequently, on their
version, lodged such applications for
drought relief with Ukada for
processing on behalf of the Disaster Relief Fund. In the present
matter the Director General explained
on behalf of the First
Applicant that the Disaster Relief Fund Board is no longer in
existence. Its term expired during 2007
and no Board had been
appointed by the Minister to replace it. He also averred that the
Board had exhausted the funds allocated
to it for disbursement for
social relief in the sum of R60 million. However, in an annexure to
this same founding affidavit,
namely “VM3” which is an internal
memorandum requesting the National Minister to approve the
appointment of members for the
new Disaster Relief Fund Board, the
allegation is made that a sum of R38 million remains available for
disbursement under the
Disaster Relief Fund, although no Board
exists at this time. I was informed from the Bar by Ms Baloyi that
Mr. Madonsela’s
averment in his founding affidavit is incorrect
and that in fact an amount of R38 million remains available for
disbursement
for drought relief.
At
this juncture I must
enumerate
the various problems in the Applicants’ papers:
Firstly
Mr. Madonsela’s founding affidavit and his replying affidavit are
called “Supporting Affidavit
s”,
obviously incorrectly so.
Furthermore,
as Mr. Quinn has correctly pointed out, no order was made in the
main application against the National Minister,
but was in fact
made
against the First Respondent (Second Applicant herein) the MEC
and/or the Disaster Relief Fund Board (which was the Second

Respondent in the main application). The relief sought in the
present matter refers only to the First Applicant, namely the

National Minister against whom as I have stated, no order was made.
I have already referred
to the serious misstatement of fact contained in Mr. Madonsela’s
affidavit which was later clarified
in reply.
The
contradiction between Mr. Madonsela’s averment in his founding
affidavit regarding the fact that the funds allocated for
disaster
relief
had been exhausted and the facts contained in the annexure thereto,
namely “VM3”, stating that there is still R38
million remaining
for disbursement for drought relief, is also glaring on the papers.
Quite
apart from the aforementioned problems there is also the fact of
self-created urgency which Mr. Quinn has strongly argued
before me.
The order was made on 8 May 2009 in the main application.
According to Mr. Madonsela
’s
averments in his founding affidavit, the National Department became
aware of the aforementioned order on 13 May 2009 when
it was
brought to his attention by the State Attorney. On that day the
senior management of the Department met to discuss
the order and it
became apparent that since there is no Disaster Relief Fund Board,
another one had to be established, which
would of course take some
time. Notwithstanding the aforementioned knowledge on 13 May 2009,
the present application was only
issued on 6 July 2009 and was set
down for Tuesday 7 July 2009 at 14:00 on an urgent basis. The
terms of the order in the
main application made by Mabuse AJ
envisaged that the order had to be complied with within 60 days,
which would have expired
on 7 July 2009, the exact date of setdown
of this present application. It would appear therefore that nearly
two months after
becoming aware of the order, the Department
suddenly decided to launch this urgent application on a few hours’
notice to
the Respondents. This precipitated the application for
postponement of the matter which was granted by Henriques AJ.
There
is much to be said for Mr. Quinn’s submission about this
self-created urgency. The Applicants took virtually two months
to
come to Court to ask for an extension of the time periods set down
by Mabuse AJ. Ms Baloyi has pointed out that the
Minister was
compelled to come to Court to ask for an extension of time to set up
a new Board. I have no quarrel with that submission,
but my problem
is with the timing thereof. It has put great strain on the
Respondents in the present matter to produce answering
affidavits.
Ms Baloyi’s stance during her argument was that the Respondents
did not have to oppose the relief sought in the
present application,
since it was obvious that the Minister had to seek an extension of
the time limits ordered by Mabuse AJ.
The problem that I have
with this submission is that not only were the Applicants’ papers
in a chaotic and disorderly state,
but as I have stated, the
Minister who is the First Applicant herein, was not one of the
parties against whom an order was made
in the main application. Mr.
Quinn argued quite forcefully that I should, by reason of this fact
and also the Applicants’
chaotic papers, dismiss the application
with costs.
As I
see the matter, the First Applicant (the National Minister)
purportedly approached this Court with this application to establish

a new Disaster Relief Fund Board. Plainly, the Board could not
itself approach this Court, given the fact that it no longer
exists.
It seems to me therefore that to simply dismiss the application
will defeat the very purpose of assisting the poorest
of the poor,
namely the Respondents herein (the Applicants in the main
application). Dismissing the application would elevate
form over
substance, which would gravely prejudice the Respondents.
A
further troubling matter is the fact that Mabuse AJ made an
order against the First and/or Second Respondents in the main

application. It is trite that the hybrid
“and/or”
can give rise in law to a myriad of problems. So, in the present
instance, it is not clear whether the First or
the Second Respondent
should have acted. Another troubling factor is the regulations
passed under the Act. Regulation 26(2)
of the Regulations relating
to 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
reads as follows:
“
26
PERSONS
ELIGIBLE FOR SOCIAL RELIEF OF DISTRESS
(2) Notwithstanding the provisions of
subregulation (1), no person shall be entitled to a grant and social
relief of distress simultaneously
and any amount paid in terms of
social relief of distress shall be recovered from any grant payment,
including an arrear payment
in respect of a grant.”
It is
common cause that all the Respondents herein are recipients of social
grants under the Act. In terms of Regulation 26(2)
they would
therefore be disqualified from
obtaining
social relief for distress such as drought relief under the Act. Ms
Baloyi pointed out that the fact that they had proceeded
in terms of
the Act and not in terms of the
Fundraising Act, has
the implication
that
Regulation 26(2)
may disbar them from obtaining such relief. I
must point out that this particular regulation was never considered
in our judgment
in the
Mweza
and
Barends
matters referred to hereinabove. 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.
I
take a robust view of the matter in this application. It seems to
me that the First Applicant (the National Minister) is making
a
genuine effort to assist those most needy members of society, for
whom the R900 drought relief will
probably
be a princely sum. I was informed from the Bar by Ms Baloyi that an
advertisement had been placed and that a shortlist
has been compiled
for interviews during the course of this present week in respect of
prospective members of the new Board to
be established. In the
premises it seems to me that it would hardly serve any purpose at
all to dismiss the application.
This
brings me to the question of costs. Mr. Quinn has forcefully argued
that there should be a punitive costs order against
the Applicants
by reason of the fact of the self-created urgency to which I have
already alluded and also the disorderly and
chaotic state of their
papers. Ms Baloyi on the other hand has urged me to make no costs
order, since the National Minister
had at all times acted
bona
fide
with the genuine intent to assist the Respondents herein. There is
merit in both submissions. In exercising my discretion the

overriding consideration for me is the fact that the Respondents in
the present matter are the poorest of the poor and the most
needy
in our society. They are all welfare beneficiaries. It is plain
that they are people who are in serious need of distress
relief and
their opposition in the matter cannot be said to be frivolous. In
the premises I am of the view that the National
Minister (First
Applicant) should pay their costs, notwithstanding the fact that I
am going to grant the Minister’s application
for an extension. I
do so purely because, as I have stated, the Respondents are indigent
and their legal representatives act
herein in public interest
litigation. The Applicants’ costs on the other hand, are being
paid from the public purse and their
objective is to establish a
juristic person in terms of the
Fundraising Act so
as to assist the
indigent.
I consequently issue the
following order
The
First
Applicant
is ordered to take steps to ensure compliance on behalf of the
Disaster Relief Fund, cited as the Second Respondent
in paragraph 1
of the order of Mabuse AJ dated 8 May 2009 in the matter
Jannetjie Carolus and Others/The Member of the
Executive Council,
Department of Social Development, Northern Cape and Others, case
number 363/09, within 90 (ninety) days
from date of this order.
The First Applicant
is ordered to pay the Respondents’ costs.
_____________
SA MAJIEDT
JUDGE
FOR
THE
APPLICANTS : ADV MS BALOYI
INSTRUCTED
BY :
STATE
ATTORNEY
FOR
THE PLAINTIFF :
ADV
R QUINN SC
INSTRUCTED
BY :
TOWELL
AND GROENEWALD ATTORNEYS